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Medical malpractice is one the of the most challenging type of case to prove in Virginia. State laws protect doctors and nurses, and your claim has to meet certain criteria to be considered for medical malpractice. To establish a medical malpractice case you need to show:

  1. a breach of the standard of care
  2. definite damages
  3. a firm link (proximate cause) between the two.

The hosptial didn't test for pregnancy after my car accident, should I sue for medical malpractice?In other words, medical malpractice does not occur just because something bad could have happened due to negligence. You must prove something did happen due to negligence.

Unfortunately, in this scenario, you will have to wait until the doctors identify issues with your baby. Your doctor may find issues during your pregnancy using an ultrasound. Otherwise, you will need to wait until your child is born.

Additionally, you will have to prove that you were indeed pregnant at the time of treatment. If you were only a week or two along in your pregnancy, then the insurance company could argue that you weren't pregnant at the time. Since pregnancy tests aren't accurate until you are two or three weeks along, then it is possible you got a false negative. If the test came back negative, there was no breach of the standard of care, and you cannot prove medical malpractice.

Finally, if your baby has a birth defect, you will have to prove that this is directly related to the imaging test that was performed during your hospital visit. This will be difficult, considering all the potential causes of birth defects. There will need to be a clear link between the injury and the imaging tests performed.

Ben Glass
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Ben Glass is a nationally recognized car accident and ERISA disability attorney in Fairfax, VA.