In states using this second standard, courts ask whether a normal patient, with the same medical history and conditions as the plaintiff, would have changed his or her mind about the treatment if the risk was disclosed. Unlike states following the first standard, a doctor must also inform a patient of realistic alternative treatments, even if the doctor only recommends one treatment.
In many jurisdictions, a medical malpractice lawsuit is initiated officially by the filing and service of a summons and complaint. The parties subsequently engage in discovery," a process through which documents such as medical records are exchanged, and depositions are taken by parties involved in the lawsuit. A deposition involves the taking of statements made under oath about the case. Certain conversations are not discoverable due to issues of privilege, a legal protection against discovery, but most conversations between the parties and witnesses are discoverable.
There is a cap on non-economic damages for medical malpractice arising out of acts or omissions on or after April 11, 2003. The basic cap is the larger of $250,000 or three times economic damages, subject to a maximum of $350,000 per plaintiff and a maximum of $500,000 per occurrence. These maximum amounts increase to $500,000 per plaintiff and $1 million per occurrence if the plaintiff has suffered permanent and substantial physical deformity, loss of use of a limb, loss of a bodily organ system, or permanent physical injury that prevents self-care. Ohio Rev. Code Ann. § 2323.43. The cap does not apply to cases brought under the wrongful death statute, Ohio Rev. Code Ann. § 2323.43(G)(3), but it does limit recovery by a decedent’s estate for such non-economic damages as conscious pain and suffering experienced prior to death.
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Patients choose not to pursue valid medical-malpractice claims for numerous reasons: Some are concerned that other doctors will learn of their cases and refuse to treat them. Some fear—incorrectly—that it will lead to an increase in the cost of their medical care. And others forgo valid claims due to the perceived personal and financial costs associated with litigation.
If someone is an employee of a hospital, the hospital is typically responsible (liable) if that employee hurts a patient by acting incompetently. In other words, if the employee is negligent (is not reasonably cautious when treating or dealing with a patient), the hospital will usually be on the hook for any resulting injuries to the patient. (Keep in mind that not every mistake or unfortunate event that happens in a hospital rises to the level of negligence. To learn more about what constitutes medical malpractice, read Nolo's article Medical Malpractice Basics. )
A doctor might simply forget about a patient or the patient might become "lost in the system" due to a computer glitch. In some cases, doctors have argued that they should not be held liable for abandoning a patient because there was no intent to abandon. This argument has failed almost without exception because a doctor has a duty to continue treatment of a patient until the patient is properly released. The only difference between an intentional and an inadvertent abandonment case is that punitive damages might be available in a case where there is evidence of an intent to cause harm.
I see why malpractice insurance is high. I think in many cases it's the attitude that goes along with the malpractice that leads to legal action being taken. I understand that that's not always the case, and sometimes it is simply an accident. However, I know in my family's situation had there been even a tiny morsel of remorse by the physician who treated my grandfather he wouldn't have had to travel to the state capitol. Misreading the fuzzy xray may have been an accident, but sending my grandfather home unable to walk or care for himself, in terrible pain with no pain medication for his broken hip was not an accident. We didn't profit from it, but the physician did have to get an attorney/attorneys when he faced the medical board - so you can blame people like him for the increase in your rates. Had he said he was sorry and not been such an a-- to my grandfather he wouldn't have had to go try to defend himself. He lost, by the way. Had to pay a fine and take some classes. He probably deserved more than he got, but it was something.
Back surgery remains a highly controversial area of surgical medicine and the ambiguity of the outcomes supports why some surgeons are extremely conservative in identifying good surgical candidates. The first surgeon did not find you to be a good surgical candidate, the second one did. "proving" that surgeon #1 lied to you may assuage your outrage, but does nothing to further your case or your health and it's likely to fail in court. So my opinion, move on. Best of luck.