So, the lawyer sues the doctor. The doctor being sued has malpractice insurance (most states won’t allow you to practice without it). So the insurance company pays for a lawyer to defend the doctor, as well as an expert witness to evaluate the case and attest that there was no malpractice. Notice that the patient’s lawyer still hasn’t spent any money. The doctor’s insurance company has spent a lot of money on expert witnesses and lawyers.
Doctors must abide by what is called “the duty of informed consent”. This means that a doctor is obligated by law and by professional ethics to warn patients of all known risks of a procedure or course of treatment. If a patient who had been properly informed of risks and potential side-effects would have elected not to proceed, the doctor MAY be liable for medical malpractice. Similarly, if the patient is injured by the procedure – or during the course of treatment – in a way that the doctor should have warned could happen but didn’t, the doctor may be liable for medical malpractice.
To establish whether or not your doctor has been negligent they will have to be shown to have been in a position where they owed you/the patient a duty of care and that you or the patient suffered direct harm as a result of their negligent management of this care. The decisions the doctor made and the treatment they gave will be assessed. If it is found that they acted in a way in which other doctors would not have acted, and this resulted in a negative effect, you will have grounds to make a successful medical negligence claim.
^ William M. Sage, M.D., Margaret Thompson, Cynthia Gorman, Melissa King. [ The Jury's Still Out: A Critical Look at Malpractice Reform], Center for American Progress, June 12, 2008. From the study, "There is no nationwide crisis [...] Malpractice is wrongly blamed for rising health care costs in the United States...Experts have found little correlation between malpractice claim increases and malpractice premium increases. "
One of the most common reasons that a physician may be accused of medical malpractice is due to the failure to diagnose. This is premised on the idea that the patient needlessly suffered for an extended period of time because the doctor failed to properly evaluate tests or run tests that should have reasonably notified him or her of the potential diagnosis. Other examples of medical malpractice include misdiagnosing a medical condition, failing to provide appropriate treatment, causing an unreasonable delay in treating a diagnosed condition, violating HIPAA laws, performing wrong-site surgery and performing surgery on the wrong patient.
I think that success rates of surgeries for each doctor ought to be recorded and published on the internet and all malpractice suits and judgments against doctors ought to be there, too. This is not at ALL the same as a patient wanting to know personal information about the life of their shrink. Face it. Some surgeons botch surgeries over and over and others are great. I consider the cited case malpractice.
Here is the step most people don’t realize. If the patient’s lawyer wants to take the case further, they need to get an expert witness. That will cost them a lot of money. So if the case is weak, they will do some sort of calculation. For example, they will say they spent 50 hours so far, and they want to make 10,000 for that, so they will offer to dismiss the case for 20,000, which they will split with the patient. Many cases will settle at this point, because it’s easier to spend a little money and avoid the massive costs of going to court, as well as avoiding the risk of a big payout to the patient. This is the reason I say it’s easy to sue a doctor for malpractice, lose the case, but still make some money.
As the field of medicine has advanced in capability and courage, so have the scope of possible mishaps, and throughout the course of medical malpractice history, there have been some veritably unbelievable cases. Cerebral palsy resulting from mistakes in the birthing process has been seen a number of times, and almost invariably results in enormous payouts. One mother was awarded $74.5 million after her child was born with cerebral palsy and her physicians falsified records to cover up wrongdoing.
For help on choosing a good medical malpractice attorney, read Nolo's article Finding a Personal Injury Lawyer . Or, you can go straight to Nolo's Lawyer Directory for a list of personal injury attorneys in your geographical area (click on the "Types of Cases" and "Work History" tabs to learn about a particular lawyer's experience, if any, with medical malpractice claims).
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If you don’t file a medical malpractice claim or lawsuit against your doctor within the prescribed time period, absent some exceptional circumstances you will be barred from seeking monetary compensation for the injuries and damages you sustained. A medical malpractice lawyer should know the statute of limitations deadline in your jurisdiction and can work to make sure that a claim or lawsuit is filed in your case in a timely manner.
This is where a “Pain Management” doctor should potentially be liable (your avg. doc should not – but those specially trained in this area have NO EXCUSE for this kind of mis-treatment of a patient with a solid history). This is all well documented, there is no valid excuse in forcing patients into withdrawl and destroying a weeks or more of their life (or their lives entirely in many cases) – the impact to your family and job are tremendous. It is exactly this kind of poor practice that leads people down the wrong path to things like heroin. I was fortunate and toughed it out (my wife was very supportive), having the new meds (though not effective enough to control my pain 24/7) was better than nothing but the withdrawal ..was ..terrible AND unnecessary.
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I had to change pain mgmt. clinics as the clinic I was in decided to implement a ceiling in terms of MME dosing that they are allowed to prescribe and I happened to be right at their ceiling (again – stable patient here, no changes on my side for 9yrs and they are the ones that put me in that dosing and it worked well – I know I’m a bit of a freak of nature in this way but there are people like me that can stay stable and not need frequent increases, though we are edge cases).
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.