MEDICAL MALPRACTICE INFORMATION CENTER 

 

Overview

There are thousands of people dying each year from easily preventable medical errors, making medical malpractice the sixth leading cause of death in the United States.  A physician can make a medical mistake by doing something he or she should not have done, or by failing to do something that should have been done.

Medical malpractice is an incorrect or negligent performance by a health care professional.  Physicians, nurses, hospital staff, and technicians have a responsibility to provide excellent medical care to every patient.  A health care professional can also be a dentist, chiropractor, nurse practitioner, or work in a health-care facility.  If an injury results because these health care professionals did not meet the standards necessary for patient care, medical malpractice has occurred.

There are medical malpractice laws designed to protect a patient’s rights to request compensation if they were injured because of medical negligence.  Medical malpractice lawsuits that enter the court system can be time-consuming and costly. Healthcare providers have malpractice insurance that pays for the doctor’s attorneys and any settlement. Insurance companies are always involved in these proceedings.

Responsible Parties

Besides medical personnel, hospitals can be liable for their own negligence.  Hospitals can be vicariously liable for the negligence of their employees.  If a hospital employee commits malpractice while doing his or her job, the hospital can be liable under the Respondeat Superior legal doctrine.  This doctrine ensures plaintiffs that someone will be responsible for compensation.  In cases where the health care provider is considered an independent contractor, the respondeat superior doctrine does not apply.  The hospital cannot be liable for the independent contractor but it can be liable for its own negligence in granting this physician privileges in the hospital.

Direct Hospital Negligence - A hospital is responsible for hiring physicians and the medical staff.  They do a background check on the applicant to make sure he or she is qualified for the position.  A hospital is liable under the corporate negligence doctrine for not making reasonable inquiries of its staff, especially is the person’s negligent care hurts a patient.

A hospital is required to have a sufficient number of registered nurses on duty at all times.  Injuries can occur if there is a shortage of nurses on hand.

It is the hospital’s responsibility to protect their patients from harm.  They must make sure all tests are performed correctly and medical records are accurate.  The refusal to treat a patient that enters the emergency room can be a hospital liability.    There are Federal and State laws that prohibit a hospital from treating a person because of their race, color, religion or inability to pay.

Health Maintenance Organizations (HMOs)

An HMO is liable for negligent hiring (direct negligence).  Some malpractice claims against HMOs are subject to pre-emption by Federal or State laws.  These laws protect HMOs from huge jury awards.

Informed Consent

A patient has the right to prevent unauthorized contact upon him or herself.  A physician or medical provider must inform the patient of all risks and benefits before performing a medical procedure.  The physician must include any available alternatives to the medical procedure.  The physician must receive the patient’s signed informed consent allowing the doctor to proceed with the surgery fully aware of the risks and benefits. Informed consent is required for any medical trials that receive Federal funding.  If there is no informed consent, the patient may have a legal claim for compensation. 

Valid Consent

In order to ensure that the consent form is valid, the doctor performing the surgery can obtain it, making sure he or she has an understanding of the patient’s medical history.  It is illegal to coerce the patient into giving consent and the patient must be legally and mentally capable of doing so.  After the doctor discusses risks, benefits and possible alternatives to the surgery, the patient should ask questions.

Express Consent

Express consent can be in writing or given verbally.  If it is in writing, it should include all pertinent information pertaining to the surgery – doctor’s name, date, time, location, etc.

Implied Consent

Consent not expressly granted by the patient, but inferred from the patient’s actions and the facts and circumstances of the surgery.  Implied consent is in effect for a simple, non-invasive procedure or when the doctor uses necessary procedures while performing the surgery the patient consented to.

Consent Exceptions

In an emergency - If the patient is unconscious and there is a risk to his or her life, consent may be implied.  A patient usually consents to treatment when faced with a life-threatening situation.

In some cases, a patient faces emotional or physical harm when given life-threatening information.

Compulsory tests – Consent is not required when a patient submits to a standard test such as for a communicable disease.

 

Consent for Incompetent Individuals or Minors

A parent makes all-important decisions for their minor child.  An appointed guardian can give informed consent for a mentally disabled person.  Some states allow a minor under 18 who is a “mature minor” to make consent decisions.  This usually refers to cases that include substance abuse and sexual activity.

Breach of Contract

Most doctors do not promise specific results from a procedure; however, some do.  If the patient is not happy with the results, this is a breach of contract.  The patient can file a lawsuit for breach of contract.

Malpractice Legislation

Many states have placed a “cap” on the amount of damages awarded in a malpractice lawsuit.  This includes attorney fees.  State law also places a statute of limitations (timeframe) for which the plaintiff can file a malpractice lawsuit.

Medical Malpractice Lawsuits

Negligence occurs with a misdiagnosis of a treatment or illness.  Failure to diagnose cancer accounts for 1/3 of all medical malpractice lawsuits.  Other examples of common injuries include improperly prescribing drugs without looking at medical history, problems arising from Lasik eye surgery, and operating room mistakes involving medical instruments or anesthesia.  Nursing homes are often sued for improper care and neglect of the elderly.  Finally, if a patient dies because of medical negligence, this is a wrongful death action.

If your doctor’s actions deviated from accepted standards of practice and negligence occurred, you may be able to file a medical malpractice claim against him or her.

Negligence

In order to establish medical negligence, the plaintiff must prove he or she had an existing relationship with the doctor, the doctor’s conduct was below the accepted standard of care, and the plaintiff was injured. 

Causation

A physician is liable for negligence if he or she owed the plaintiff a duty of care and breached that duty.  Because of the breach, the plaintiff was injured.  Proof of causation is difficult to establish.  The plaintiff must prove that the physician’s actions caused the injuries.

Cause-in-Fact - It must be asked if the defendant’s conduct caused the plaintiff’s injuries.  The defendant can explain that the injury was the cause of the plaintiff’s pre-existing condition.  The doctor may also try to prove that the injury was a result of the plaintiff’s negligence. 

Expert Testimony

Because medical matters are complex and difficult to understand, the plaintiff should rely on expert testimony to prove his or her case.  An expert can explain to the jury the applicable standard of care and if the doctor failed to meet it.

Res Ipsa Loquitur

Res Ipsa Loquitur is a Latin term meaning, “the thing speaks for itself.”  It means that further details are not necessary and the facts are self-evident.  A plaintiff needs to show the result of a procedure and prove that it would not have happened if not for the doctor’s negligence.  An example is if a medical instrument is left inside the person following surgery.  The plaintiff must show that he or she is not responsible for this injury and it could only happen because of the defendant.

Damages

Once the plaintiff proves that the defendant did not meet the applicable standard of care, damages are awarded.  The plaintiff can collect compensatory and/or punitive damages. 

Compensatory Damages

Damages awarded for the actual injury and/or harm sustained.  Damages awarded for economic loss include out-of-pocket expenses (i.e. medical and hospital bills, prescription drugs, nursing assistance, physical therapy and any medical equipment needed).  You can also recover lost wages. 

Non-economic losses include pain and suffering, loss of being able to work now and in the future, mental anguish, inconvenience and disability or disfigurement.  If the plaintiff cannot establish actual damages, he or she may receive nominal damages of $1.  This happens when the plaintiff has not sustained actual loss and recognizes that a legal injury was sustained.

Punitive Damages

If the plaintiff can prove the medical provider acted maliciously or in bad faith, punitive damages are awarded to punish the provider for their wrongdoing.  Other situations when a court awards punitive damages against an individual health care provider include failure to get the patient’s informed consent, failure to provide follow-up care after surgery, altering medical records or failure to properly administer drugs or anesthesia.

Other factors include performing non-emergency surgery after a long day, overcharging for services, and performing a procedure when a more appropriate one could be done.  An experienced medical malpractice attorney can explain all the reasons punitive damages are awarded.

Conclusion

Medical malpractice lawsuits have different laws and regulations in different states. The Statute of Limitations regulates the time in which medical malpractice lawsuits can be filed and they vary in each state. A qualified medical malpractice attorney knows how to protect your rights; they will thoroughly discuss your options with you and build a strong case so you can be fairly compensated for your injuries.

The most important factor to consider when choosing a law firm to pursue your medical malpractice claim is experience.  Your attorney can effectively prepare expert medical witnesses with testimony that is necessary to win a medical malpractice case.

If you, or a family member, are the victim of medical mistakes, you may be eligible to file a medical malpractice lawsuit to pay for all medical expenses, loss of income, and monetary compensation for your pain and suffering.

Links to additional information

If you have questions pertaining to healthcare, visit the U. S. Department of Health and Human Services at http://bhpr.hrsa.gov

The National Patient Safety Foundation has answers to your questions on patient safety.  Click on www.npsf.org

Everything you always wanted to know on general health can be answered at the U. S. Agency for Health Care Research at www.ahrq.gov

The Joint Commission for International Patient Safety provides patient safety solutions.  Visit their website at www.ccforpatientsafety.org.