Medical malpractice involves an injury brought about by a breach in the duty of care that a doctor or another medical professional owes their patient. A glaring example might be if the doctor sewed you up with a medical tool left inside of your body, but a less obvious one might be misdiagnosing you and treating a disease that you do not have while neglecting to treat the one they failed to diagnose.
Expert testimony is required. Expert opinions are often a crucial feature of the patient's case. A qualified expert is usually required at trial. (And often, expert testimony or an expert affidavit is required at the malpractice review panel proceedings prior to commencing trial.) State rules vary as to what makes somebody qualified to provide expert medical testimony, but generally it is someone with experience in the particular field at issue. In a very limited number of circumstances, expert testimony is not required, such as when a surgical towel is left inside the patient after a surgery.
Filing a complaint against a doctor with your state’s medical board is usually the first step in bringing disciplinary action against a doctor. Although the particulars vary by state, when the board receives complaints against doctors, it enters them into a system. The board then reviews complaints or refers them to another agency if needed. The medical board may ask to see medical records. If you complain about a doctor, the medical board will not disclose your identity.
Medical malpractice lawsuits, like all civil cases, can only be brought within a certain period of time. That deadline is set by a law known called a “statute of limitations.” Every state has passed these kinds of laws, with different deadlines according to the kind of case you want to file. In almost every state, there is a dedicated statute of limitations that applies to medical malpractice cases.
This is often the most difficult part of medical negligence cases and even lawyers have trouble getting their heads around it sometimes. You may be able to prove that a doctor did the wrong thing, but you also have to prove that what happened next was the result of that wrong thing and you have to prove that it would not have happened if the wrong thing had not been done. Deciding whether or not this is the case involves both factual and legal issues and is sometimes very hard to do. You really need a lawyer who is highly experienced in medical negligence cases to look at this for you.
All medical doctors owe their patients a duty of care to act reasonably under the circumstances. This means that they must act as a “reasonable doctor,” who works in the same geographical area as the defendant doctor, would act under the same or similar circumstances. Doctors who are specialists are usually held to a nationalized standard of care when it comes to medical negligence cases.
Let’s suppose that the doctor prescribed a medication that was wrong for you and you had an adverse reaction. But you were also prone to strokes, and you had a stroke. Unless the medication is known to increase the risk of strokes, the medication did not cause your condition, so while the doctor was negligent, he or she did not cause your predicament through that negligence.
Ex.: New York has a two-and-a-half year statute of limitations for medical malpractice cases, set by New York Civil Practice Law and Rules section 214-a. Let’s say a surgeon in New York negligently leaves a foreign object in a patient during surgery. What if the patient discovers the object 3 years after the surgery? In this example, the patient still has time to sue because New York has adopted a 1 year discovery rule. This patient actually has 1 year after discovery of the object to file a lawsuit. (Note, however, that if there is proven evidence that the plaintiff missed the statute of limitations because the object should have been discovered earlier than it was, then the case could be dismissed.)
Is our situation unique? According to the MPS report, in the United States there have been two waves of legal reforms prompted by medical malpractice claims: one in the mid-80s and another in the early 2000s. Reforms were driven by an increase in insurance premiums and concerns about access to health care. Since 2000, 29 states in the US have introduced limitations on damages; some limit both “economic” and “general” damages (compensation for pain and suffering), while others cap only general damages.
Our attorneys treat clients like we would our own family. We understand how important it is to have a compassionate bedside manner.We take the time to listen to you, answer your questions and ensure you understand what to expect in your medical malpractice claim. Just as we would for a family member, we commit to having a partner in our firm oversee each case, rather than handing off claims to a “case manager.” Our attorneys are always available to personally speak with you about the progress on your case.
There’s no way to tell how often doctors to lie to protect their colleagues, but ProPublica has found that patients are frequently not told the truth when they are harmed. Studies also show that many physicians do not have a favorable view of informing patients about mistakes and that health care workers are afraid to speak up if things don’t seem right. Many doctors and nurses have told ProPublica that they fear retaliation if they speak out about patient safety problems.
The first step is a letter of demand, a letter sent by your lawyer to the doctor or health facility concerned, setting out your claim and the period in which the accused should meet it. Thereafter, getting a case to court can take up to four years. Accurate case data and hospital notes have to be gathered; records relating to the patient’s prior medical history, treatment at the hands of the suspected transgressor, and any subsequent treatment must be obtained. Then, lay witnesses must be found, expert witnesses briefed and court dates agreed on. In addition, both the patient’s medical condition and prevailing medical treatments have to be researched.
Medical malpractice litigation has evolved dramatically since the Code of Hammurabi was written. Certain fundamental principles – namely, the responsibility of medical professionals to prevent unnecessary injury and death – remain unchanged. However, the legal landscape is constantly shifting. Major controversy surrounds how to best improve medical malpractice law and hospital culture so that medical professionals can truly focus on providing the best care to their patients. This was the idea behind many tort reform measures, but it remains unclear whether these changes actually improved patient care, or just stopped patients from obtaining the compensation they needed and were entitled to. ADR may be a win-win solution for patients and medical professionals, increasing case efficiency and decreasing animosity between opposing parties.
Many factors are taken into consideration when determining the level of compensation to which you are entitled. The severity of the injury is perhaps the most important factor. We are able to provide advice as to the reasonable value of your claim based on our years of experience in handling medical malpractice, nursing home negligence, personal injury and wrongful death cases. The following is a list of recent awards we obtained for our clients.
You may have a complaint about improper care (like claims of abuse to a nursing home resident) or unsafe conditions (like water damage or fire safety concerns). To file a complaint about improper care or unsafe conditions in a hospital, home health agency, hospice, or nursing home, contact your State Survey Agency. The State Survey Agency is usually part of your State’s department of health services.
Interesting comments. My heart goes out to the doctors caught in the middle,as well as patients discovering to their chagrin the diiference between dependence and addiction. I have been treating addictions for over 20 years in both urban and rural areas in the northeast part of the U.S. I have found addiction does not discriminate but society still does, particularly by marginalizing and stigmatizing much in the same manner as we did for cancer years ago and HIV/mental illness more recently.
Our lawyers are focused on medical malpractice claims. We have extensive experience handling complicated claims involving medical errors, and our knowledgeable legal team is prepared to thoroughly investigate your case. We will need to show exactly what happened and identify every party that may be held responsible. Our team will gather all the evidence and consult with outside medical experts to show that there is a clear basis for your claim.
In cases involving suicide, physicians and particularly psychiatrists may be to a different standard than other defendants in a tort claim. In most tort cases, suicide is legally viewed as an act which terminates a chain of causality. Although the defendant may be held negligent for another's suicide, he or she is not responsible for damages which occur after the act. An exception is made for physicians who are found to have committed malpractice that results in a suicide, with damages assessed based on losses that are proved likely to accrue after the act of suicide.
Bipolar symptoms dont normally “go away ” without some mental help , either of drugs or as an outpatient in a hospital but as you say you have to be diagnosed first Bez to get treatment . Your doctor , unless he has degrees in psychiatry has not the qualifications to judge and must refer you to a specialist . If you are refused treatment there are many mental health charities that I can provide to take up your case . Go down to the surgery , kick up a fuss about it , at the very least it will get them thinking and get beyond the “SS” guard at the reception . I have on many occasions had to be strong in my communications with surgeries to get help both for me and my wife , I dont take no for an answer when it comes to health luckily the message sinks in and it has saved my life and my wife,s on several occasions. Get back and let me know how you get on Bez , I know about depression etc and also the serious effects it an have on your life .
Things have changed. I can remember when doctors were revered by their patients, in those days doctors did their best and patients hoped it would be enough. The word MAL-PRACTICE was almost unheard of. Now its on the mind of every single doctor in this country, every single day, along with the cost of skyrocketing insurance. The way the public views and treats doctors has changed and the way doctors view their patients is changing right along with it. Almost nobody picks up hitchhikers anymore, nobody is willing to risk martyring themselves just to play the good Samaritan in a world that will view them as stupid, and deserving of what they got if they pick up the wrong person.
The second main component of your case will be the establishment of medical malpractice damages. To sue the doctor, it’s not enough that he or she failed to treat or diagnose a disease or injury in time; it must also have caused additional injury. That means showing exactly how -- and to what extent -- the delay in the provision of medical care harmed you. This will also usually require the testimony of an expert medical witness.
A hospital can be held liable for the negligence of its employees. Typically, nurses are hospital employees. And in some cases, medical technicians and paramedics are also employed by a hospital. As long as the employee was doing something job-related when he or she injured the patient (who would be the plaintiff in the case), the plaintiff can sue the hospital over the injury.
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).
You must make your claim against the correct person or entity. In some cases, you would sue the doctor directly, but in other cases you might sue the hospital or health care system. In Washington, D.C. you have three years from the date of injury to file a medical malpractice lawsuit. You must make sure that you take action immediately when you have been injured at the hands of a trusted physician or another medical care provider.
A physician would be insane to risk his hard earned career by continuing to prescribe controlled substances to all the pts who cross his threshold. Physicians already place their pts’ health above their self interests. What profession do you know of that you are regularly expected to miss holidays and special occasions? Work long shifts overnight? Law, business, engineering? I think it’s reasonable to say that a pts’ wellbeing should not supersede my ability to lead a somewhat normal life and provide for my family (who did not take the Hippocratic Oath).
Many medical procedures are inherently risky and even under the most expert care can have bad outcomes. In these cases, doctors are obliged to explain the possible risks of a procedure to you before the procedure, and you must give your informed consent. Doctors need to have efficient and accurate record-keeping processes in order to defend themselves from malpractice litigation. Absent or poor record keeping is classified as professional negligence.
A misdiagnosis or delayed diagnosis itself is not evidence of negligence. Skillful doctors can and do make diagnostic errors even when using reasonable care. The key is determining whether the doctor acted competently, which involves an evaluation of what the doctor did and did not do in arriving at a diagnosis. This means looking at the "differential diagnosis" method the doctor used in making treatment determinations.
I believe I have answered your question and I hope you a better understanding of your legal issue as a result. As you know, I am only the messenger and can not create favorable law if it doesn't exist, so please don't hold it against me if the legal result is not what you wish. If your question was in fact answered appropriately please click the GREEN "ACCEPT" button NOW, in order that it be recognized as such and I receive credit for my work from the company. Your promptness is greatly appreciated. In addition, Positive "FEEDBACK" and BONUSES are also appreciated. If you need additional related follow up on this particular question afterwards, don't hesitate to Reply and I'm happy to help you. And if you would like my assistance in the future, just put my name, STEPHANIE JOY, in your title or first sentence of post. Please keep in mind that I can only respond to your post and the information contained in it, as I do not know what you know unless you describe it fully. Also, due to site tech reasons, oftentimes I am initially only able to see the first part of your post, so I apologize in advance if it means more interactions between us. At times, there can also be a delay of an hour or more in between my answers because I may be helping other customers or taking a break, or if it is late at night, I may have to go get some shut eye til morning, but rest assured, I'll be back for you. Thanks!
My problem now is I feel like a shell of who I was, a very successful sale manager earning 6 figures+ to now, not being able to hold a job and being on disability. I can't remember things or conversations that I have had. I can't be in places where there are too many people, forget a mall or a nice restaurant. My wife and daughter have affectionately resorted to nicknaming me "turtle" because I can't keep up. I just roll with it but it really hurts knowing I was once the sole provider of a very nice lifestyle for my family to becoming this exhausted, tired, uninterested person. I speak with no one, I have not 1 friend and for the most part, never leave the house. My brain feels scrambled all the time, foggy.
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When you go to a hospital, you expect that the medical care you receive will make you better. But with multiple health care professionals in hospitals involved in your treatment, the risk of medical error increases. Sometimes, inadequate patient safety procedures cause hospitals to commit serious medical errors and patients are seriously or fatally injured. Our hospital malpractice attorneys are here for you.
Doctor Liability, Damages Are Small – Some states have enacted tort reforms that apply caps to the amount of money an injured patient can recover from a medical malpractice claim. Under these caps, a patient may only be entitled to a $250,000 verdict. While this amount of money may seem large, the patient must share that money with expert witnesses, investigators, and attorneys. In the end, the patient’s financial recovery may be slight. Attorneys may hesitate to take a case if it seems like the recovery will be negligible. However, some patients are more concerned with filing suit as a matter of principle than as a means of financial recovery. Sometimes lawyers are willing to take a case to help the client make such a statement.
I happen to agree with your statement about there being a possibility for future cancer patients not getting the treatment they need if I was to take further action. But I wonder what exactly makes you assume that I am “living on welfare looking for even more “free money””? Ever consider that my cancer diagnosis wasn’t the only reason I am on disability? And really?? Did you read the post where I said I’m okay with coming off the meds? Its difficult, yes. But i have a choice every day to simply call up any unscrupulous doctor and get a prescription any time I want. I don’t do that. I’m sticking with the doctor who is weening me, because I believe it needs to be done. All you seem to have read was that I want more medicine, when I don’t.
Another common form of physician negligence is surgical error. Like all types of medical malpractice, surgical error is dependent upon the standard of care. But unlike in diagnostic error cases, common surgical errors are often very easy to identify. Amputating the wrong leg, leaving surgical instruments inside a patient’s body, performing the wrong procedure, or performing a procedure without informed consent -- these types of errors constitute physician negligence and are often very east to spot. If your surgeon breached the standard of care and caused you harm, your surgeon was likely negligent.
A personal example - I had a physician try to talk me in to ECT several years ago. I explained that I didn't want to do it, because I didn't want to accept the risks of permanent memory loss. He denied those risks at first. He told me it was cooked up by the scientologists and anti-psychiatry folks and assumed my resistance was due to having seen the movie One Flew Over a Cuckoos Nest (which I had not seen, by the way). I finally got him to concede it was a risk, a risk I wasn't willing to take. I don't care how small the risk is or if the physician thinks it's worth it. They better tell me the truth. He wasn't the one having the procedure and accepting those risks. I was. As long as I am legally competent, the decision is mine. I have real issues about trying to coerce someone into signing an informed consent document by lying. That's unethical. I continue to be glad I didn't do it. It's a very individual decision.
The fundamental elements of litigated medical malpractice are, above all, duty and negligence. Historic efforts define these two elements were muddled - fourteenth-century law under Henry V held that the physician owed a duty of care to the patient because medicine was a “common calling” (a profession), and required physicians to exercise care and prudence. Those in other professions who did not practice a "common calling” were liable only if an express promise had been made to achieve or avoid a certain result. In the absence of such a promise, the professional could not be held liable. Physicians, then, were held to a separate standard because of the nature of their profession. Modern notions of negligence are parallel to what history called the “carelessness” of early physicians. The notion of duty was legally elucidated in British common law. Carelessness and neglect were not in and of themselves causes of action lest the practitioner by nature of their profession had a duty to the person to whom they rendered care. The law determined that medical professionals were legally bound by a duty of care to their patients. Negligence was thereby grounds for legal action. The establishment of duty and negligence laid the foundation for Anglo-American legislation of medical malpractice.
A 1950's court decision in England produced what is commonly referred to as the Bolam test. Bolam laid the groundwork for an informal three-pronged test employed in the UK and the US alike. The Lancet wrote, "Since Bolam, modern medical negligence law can be whittled down to three fundamental factors: one, confirming the patient was “owed a legal duty of care” by the health practitioner who is the “defendant” in cases of medical negligence; two, establishing that the defendant was in “breach” of that duty of care in failing to reach the standard of care required by law; three, proving that this breach of duty caused or contributed to the damage or injury to the patient.” These are the elements a patient must prove in order to win a malpractice case today. A breach of standard alone is “meaningless” with regards to liability unless it proximately results in injury to the patient.
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.
A word of caution on the types of medical errors described below: Keep in mind that just because a doctor made a mistake or a patient was unhappy with a course of treatment or its outcome, that doesn't mean malpractice necessarily occurred. In order to meet the legal definition of medical malpractice, the doctor or medical provider must have been negligent in some way -- meaning the doctor was not reasonably skillful or competent, and that incompetence harmed the patient. (To learn more about what does and does not constitute medical malpractice, see Nolo's article Medical Malpractice Basics.)
In the doctrine of joint and several liability among tortfeasors, when there are multiple tortfeasors (“guilty” parties), all parties are equally liable for the damages caused to the injured party. This doctrine is quite harsh. For example, if the driver of a truck hits a pedestrian at night and the jury holds that the city is 15 percent responsible because it did not properly maintain the lighting at that portion of the road and the truck driver, who is 85 percent at fault, is uninsured, unemployed, and without assets, the city can be made to pay 100 percent of the damages. Under the doctrine of contribution, one tortfeasor may sue a fellow tortfeasor to recover any damages paid in excess of the proportion of fault. In most comparative fault states liability is the proportionate responsibility of each party.
Once a doctor initiates treatment of a patient, the doctor must not only terminate care at a proper time, but also in a proper manner. If a doctor transfers a patient to the care of a second doctor, the second doctor may not be familiar with crucial details of a patient's care. So, the first doctor has an ongoing obligation to provide the second doctor with proper instructions and all relevant records (treatment notes, test results, etc.). Failure to do so could rise to the level of medical malpractice.
The injured patient must show that the physician acted negligently in rendering care, and that such negligence resulted in injury. To do so, four legal elements must be proven: (1) a professional duty owed to the patient; (2) breach of such duty; (3) injury caused by the breach; and (4) resulting damages. This includes doing nothing when they should have done something. This may be considered an act of omission or a negligence.
Unfortunately, just because one of these things occurs does not mean you have a claim. Medicine is not an exact science, and the law does not obligate doctors to be error-free 100 percent of the time. If doctor error occurs but there is no breach of a standard of care, you may not have a strong claim. If however, doctor error occurs and there is a breach of a standard of care, then malpractice may have occurred.