The philosophy of our law firm regarding damages is simple: obtain the maximum monetary recovery possible for each client. We accomplish this by relying on our decades of experience to diligently prepare our cases for trial and aggressively advocate for our clients. Our financial resources, technological tools and access to outstanding experts in various fields allow us to provide top-notch representation to our clients.
The ancient Romans also had a legal foundation for medical malpractice law. Their first written laws, on the XII Tables, included the concepts of delicts, iniuria, and damnum iniuria datum. Delicts were types of wrongful conduct that involved penalties. Inuria and damnum iniuria datum were two types of delict. Inuria referred to personal injuries, and damnum iniuria datum referred to injury of property, which could include slaves. Inuria only included injuries that were intentionally caused. A person could be compensated for pain of mind or body as well as monetary expenses resulting from the injury. Damnum iniuria datum also included harm caused by negligent actions, but only mandated compensation for economic losses caused by harm to property. For example, if someone’s slave required medical attention as the result of another person’s negligent actions, they could demand payment through damnum iniuria datum. Eventually, this law was expanded to apply to free men in addition to slaves (O’Connel and Carpenter 1983).
A steady uptick in medical malpractice cases can be attributed, in part at least, to the decline of religious fatalism. It was a pervasive belief that misfortune and injury were acts of God, meant to be construed as punishment for moral and religious transgressions. Overturning this belief may be considered a far-off ripple effect of The Enlightenment, a historical ‘moment' at which prominent European thinkers began to reject the notion that everything was determined by the will of an omnipotent God. As philosophers and scientists alike began to promulgate the idea that willful human action was the true determinant of fortune and misfortune, a fringe effect was the rise of medical malpractice litigation, a century or so later. As people began to accept that injury and misfortune could be attributed to human error and not God's will, they began to assert an entitlement to recompense if they suffered as a result of human error. This was a brick in the foundation of medical malpractice litigation.
A 1996 study by Daniel P. Kessler and Mark McClellan analyzing data on elderly Medicare beneficiaries treated for two serious cardiac diseases in 1984, 1987, and 1990 determined that "malpractice reforms that directly reduce provider liability pressure lead to reductions of 5 to 9 percent in medical expenditures without substantial effects on mortality or medical complications."
Being unhappy with your treatment or the results of that treatment does not mean the doctor is liable or guilty of medical malpractice. The doctor must have been negligent in connection with your diagnosis or treatment. To sue for malpractice, you must be able to show that the doctor caused you harm in a way that a competent doctor would not have if they were treating you under the same circumstances. The doctor’s care is not required to be the best possible, merely “reasonably skillful and careful”. Whether the doctor was reasonably skillful and careful is often at the heart of a medical malpractice claim.
In this case a surgeon was sued by his patient following complications from a laparoscopic cholecystectomy (gall bladder removal). Before the procedure he explained the risks of the surgery to her, and she also asked him questions about his experience and success rate with the procedure. She asked additional questions about whether he had ever been sued for malpractice or had any action taken against his medical license. He answered no to both questions and added that he had an almost perfect success rate with the surgery. Well, bad things happened. The patient suffered a perforated intestine and an infection. She later found out that the doctor had lost a patient during this same procedure, and that he was disciplined for the board as a result of that case.
In 2013, BMJ Open performed a study in which they found that "failure to diagnose" accounted for the largest portion of medical malpractice claims brought against health professionals. Furthermore, the study found that the most common result of this negligence was death of the patient. The other most common categories of malpractice include negligent treatment and failure to warn.
Financial loss can include the future costs of caring for the patient. It can also include the patient’s future lost income where, as a result of the negligence, the patient is no longer able to work or to earn as much as he or she would otherwise. Where a patient will need significant care support and will no longer be able to work, the amount of damages awarded when you bring a claim against the NHS or a hospital can be extremely high.
* Contingency fee model. An alternative to the fee-for-service model, where the injured party takes all the risk, is the contingency fee model. This option, provided for by the Contingency Fees Act of 1997, offers a mechanism for people with insufficient funds to access the courts if they have a good case. Under the terms and conditions of the agreement, lawyers provide their services on a “no win, no fee” basis. If the case is successful, the lawyers are entitled to double their fees to a maximum of 25 percent of the settlement, whichever is lower.
How can you tell the difference between appropriate, but unsuccessful care and medical malpractice? Ask. Ask your doctor. Get second opinions if possible. Talk to lawyers, who may have medically trained staff that can give an informed opinion, or who may have dealt with the exact same issue (or doctor) you are dealing with. Do whatever you can to attempt to allay any misgivings you have about your care. But take any opinions with a grain of salt. Some doctors simply won’t accuse a “brother physician” of making a mistake. Some malpractice attorneys will exaggerate the potential of your claim in an attempt to make money. Use your best discretion when seeking opinions on your treatment, but be diligent in the pursuit of information. Until you file a lawsuit, you are your own best advocate and investigator.
* Legal aid. Legal Aid SA, a state agency that provides legal advice to those who cannot afford it, takes on medical malpractice cases selectively, depending on merit. “Our mandate permits us to fund litigation of medical malpractice and we have certainly done so in the past,” Legal Aid spokesman Mpho Phasha says. “We favour those cases where there is greatest impact, those that affect communities or where a legal principle is at stake.”
A medical malpractice action must be commenced within one year after the cause of action accrues. Ohio Rev. Code Ann. § 2305.113. A cause of action for medical malpractice accrues when the claimant discovers or, in the exercise of reasonable care and diligence, should have discovered the resulting injury, or when the physician-patient relationship for that condition terminates, whichever occurs later. Frysinger v. Leech, 32 Ohio St. 3d 38, 512 N.E.2d 337 (1987). If a malpractice claimant gives written notice to the prospective defendant within the one-year limitation period, the claimant may bring an action at any time within 180 days of that notice. Ohio Rev. Code Ann. § 2305.113).
Causation is a difficult element of a clinical negligence / medical malpractice claim for a solicitor to prove when suing the NHS or GPs. Your solicitor will need to obtain the opinion of a medical expert if you are to successfully sue the NHS or a doctor. Often the expert who is assessing negligence will also consider whether there was causation.
In New York City, when someone is injured by hospital negligence, that victim should seek the legal advice of a Bronx medical malpractice attorney who has experience representing the victims of hospital negligence and challenging hospitals in court. A good medical malpractice lawyer can identify violations of a hospital’s policies and regulations by interviewing hospital personnel, obtaining records, and thoroughly investigating negligence claims. The best medical malpractice attorneys additionally help their clients to obtain the quality medical healthcare they need after an incident of medical malpractice.
A large number of medical malpractice lawsuits stem from the misdiagnosis or delayed diagnosis of a medical condition, illness, or injury. When a doctor's diagnosis error leads to incorrect treatment, delayed treatment, or no treatment at all, a patient's condition can be made much worse, and they may even die. That being said, a mistake in diagnosis by itself is not enough to sustain a medical malpractice lawsuit.
An average person does not know how to correctly file a report against a doctor who has committed medical malpractice. Further complicating matters is the fact that each state has its own procedure for filing complaints against physicians. Generally, you should file the complaint with your state’s medical board. Each state has its own medical board and its own forms and requirements for filing complaints against doctors.
Despite this, the perception of “lawsuits gone wild” exists. As a result, many states have imposed substantial limits on damage awards in medical-malpractice claims. These award limits typically have the greatest impact on patients who are most gravely hurt—those with catastrophic injuries and a lifetime of future medical needs. And patients who are denied justice in the courts must rely on health insurance and, in many instances, such public programs as Medicare or Medicaid to pay their future medical bills—leaving the cost of medical malpractice to the public instead of the responsible party.
In the past, a lawyer acting for a wronged patient might have advised his or her client first to report the matter to the Health Professions Council of South Africa (HPCSA), the professional body mandated to register health professionals and ensure practitioners are fit to practise, before proceeding with a civil case in the courts. Even though the HPCSA does not have the power to arbitrate on compensation, the rationale was that an HPCSA ruling and censure of the doctors concerned would improve the chances of a patient succeeding in a civil case.
Cavendish ruled that a physician could be held liable if and when they harmed a patient as a result of negligence while stipulating that a physician who diligently adhered to the standard of care would not be liable even if he accomplished no cure. A legal precursor to expert testimony came in 1532, when a law passed under the reign of Holy Roman Emperor Charles V, requiring the opinion of medical men to be taken in cases of violent death. In 1768, Sir William Blackstone penned Commentaries on the Laws of England, in which he recruited the Latin term “mala praxis” to describe the concept of professional negligence, or ‘tort' in modern parlance. Blackstone noted that mala praxis “breaks the trust which the party had placed in his physician, and tends to the patient's destruction.” The proper term of ‘malpractice' was coined sometime thereafter, deriving from Blackstone's work.
This means that you need to find a qualified medical expert that is willing to attend a deposition and testify in court that you were injured by a health care provider’s negligence. Just who is qualified to testify as a medical expert witness is subject to a host of complicated and restrictive rules. An experienced plaintiff’s medical malpractice attorney will have a better network to draw from, but tracking down a qualified expert willing to testify on your behalf can be quite difficult, particularly if your case is a close call. Also, medical experts don’t work for free -- expect to pay a significant hourly rate. Some attorneys might front the medical expert expenses if they really think you have a winning case, but don’t count on it . . . and make sure to ask about your responsibility for litigation expenses up front.