Medical malpractice occurs when patients are harmed by the actions (or inaction) of doctors and other healthcare professionals. Common types of cases in this area of law include childbirth injuries, medical misdiagnosis, surgery errors, and hospital related infections. Learn about common types of medical malpractice and legal issues like informed consent, medical negligence, and damage caps in medical malpractice cases.
Another motivating factor: A quick, honest “apology” might prevent a future claim, or provide an opportunity for a settlement without the need for litigation. Insurance companies typically want to settle with an injured person directly if they can, and this allows them to do so before the full extent of injuries are known, as well as preventing the injured person from hiring an attorney who could increase the settlement value of the claim through their representation.
We certainly need to commit more money to the NHS for both medics and facilities. I think the existing facilities could probably absorb several thousand more doctors, nurses and other specialists if such people were available, but at the same time we need to start another major hospital building programme [as well as specialist units to take the pressure off general hospitals]. Additional resources for psychiatric conditions are also vital as failure there impacts on other medical services. It’s no good building hospitals until we have an adequate pipeline of professionals to staff them so training needs to be boosted. If all this was authorised now it would be at least seven years before we had the first new fully-staffed hospital. There is no time to waste while we argue over where any Brexit dividend will be used. We need a commitment now.
The patient must also prove that the doctor's negligent misdiagnosis or delayed diagnosis caused the patient's injury or condition to progress beyond where it normally would have -- had the correct diagnose been made in a timely manner -- and that this progression had a negative impact upon treatment. For example, because of a delayed cancer diagnosis the patient had to undergo a more severe treatment regimen (such as chemotherapy) or the patient died because the cancer had metastasized and no longer responded to treatment. Sometimes a patient can show harm even if the condition can still be treated. For example, with some cancers a delay in treatment increases the risk of recurrence.
Plaintiffs' lawyers say that the Texas law prevents patients from getting compensation or damages even in cases where the patient clearly deserves it. In particular, the “willful and wanton” negligence standard for emergency care, which requires that the harm to the patient be intentional, makes it impossible to win a case where the harm is clearly negligent but not willful.
Liability insurance eventually took its seat as a crucial player in medical malpractice suits. The Massachusetts Medical Insurance Society, founded in 1908, was among the first to provide and make mention of insurance against “unjust suits for alleged malpractice” in 1919. On one hand, the nascent brand of insurance offered physicians peace of mind; settlements and damages would be covered. On the other hand, it served to assure plaintiffs that every meritorious claim should be brought forward, as that claim would almost certainly see payment.
However, an attorney may be able to help you file a law suit against the negligent physician. When seeking your legal expert, the single most important factor is the attorney’s reputation. If you hire an attorney that is notorious for settling claims for less than they’re worth, you are less likely to receive the money you deserve. For more information on attorneys and the legal processes involved in medical malpractice law suits, please read our article Medical Malpractice and the Legal Process
They even let me know if they're going to be letting a student do my blood draw, and they sure as hell better let me know if there's any risk I'm entrusting my life to a hack. (I once found out a doc who tried to push a drug on me represented Lily or whoever was making tht drug...so I wonder if they should be required to provide all this info up front, whether asked or not. I have an effing right to know who is slicing me up.)
A new, relatively untested issue involving medical professionals was introduced with the passing of the Consumer Protection Act in 2008. In the context of health care, the term “service” means work performed by a person for the direct or indirect benefit of another, including the provision of medical advice by a health professional. The Act thus widens the range of events for which you can claim compensation. It also enables you to seek compensation from manufacturers of medical products and devices in the event of their malfunction.
My wife answered that question as you would have all doctors answer it, with a YES. Now that same patient who accused her of being cold, and having no empathy for their unbearable pain, is being SUED for everything she’s got because they couldn’t take responsibility for their own misuse of ADDICTIVE drugs. There is no such thing as chronic pain control WITHOUT potential dependance/addiction, and despite the constant pleas of ignorance in courtrooms all over this country, every adult in this society KNOWS THAT.
A study by Michelle M. Mello and others published in the journal Health Affairs in 2010 estimated that the total annual cost of the medical liability system, including "defensive medicine," was about 2.4 percent of total U.S. health care spending. The authors noted that "this is less than some imaginative estimates put forward in the health reform debate, and it represents a small fraction of total health care spending," although it was not "trivial" in absolute terms.
The first medical malpractice cases in the United States centered around a breach of contract and not failure to adhere to a standard of care. This meant that the defendant physician made some sort of express promise to skillfully render care and obtain a good result. Failure to do so was grounds for a suit. Five years after George Washington's inauguration, the country saw its first recorded medical malpractice lawsuit. A man sued the surgeon who operated on his wife and caused her to die, despite having made promises to the two that he would operate skillfully and safely. This breach of contract case resulted in a plaintiff verdict and an award of 40 pounds.
Some state courts still use the Frye test that relies on scientific consensus to assess the admissibility of novel scientific evidence. Daubert expressly rejected the earlier federal rule's incorporation of the Frye test. (Daubert, 509 U.S. at 593-594) Expert testimony that would have passed the Frye test is now excluded under the more stringent requirements of Federal Rules of Evidence as construed by Daubert.
The Supreme Court of the United Kingdom decided in 2018 that the duty of care extended to information given to patients by clerical staff. A patient at Croydon Health Services NHS Trust's emergency department suffered severe brain damage having been given misleading information by staff at reception. He was told that he would be seen by a doctor in four or five hours and left the hospital, when actually he would be seen inside 30 minutes by a triage nurse.
In the vast majority of cases, establishing the answer to this question requires testimony from an expert medical witness. The patient (usually through an attorney) consults a doctor who specializes in the relevant field, and the doctor offers an opinion as to the proper procedures to follow when deciding whether to terminate care in cases like the patient's -- and if the proper decision is to end care, the expert will also set out the appropriate way to go about ending the doctor-patient relationship under the circumstances.
In Michigan, you must file a medical malpractice lawsuit to sue a hospital within two years of the date of the medical malpractice or medical negligence. There are only a very few number of exceptions to this rule so it is important to consult with an experienced medical malpractice attorney as soon as possible to discuss your case. If you miss a deadline, your claim will be lost forever.
Doctors typically require patients to sign a consent form detailing the risks of any given treatment or procedure. But signing a form alone does not necessarily prove that the patient gave informed consent. The doctor must actually discuss the procedure and risks with the patient. And the patient must understand, to the extent possible, the risks he or she faces.
In the mid 1990s the concept of a ‘gratuitous care’ award was developed by the High Court. Basically, if you can’t look after yourself or your house (or in some cases your children) because of your injuries, then you can claim the cost of a commercial carer or cleaner even though your family is doing the tasks you can’t do. For a while this was a very lucrative area of damages but now there are laws that place both a threshold and a cap on what you can claim. Put simply, you aren’t entitled to any gratuitous care award unless you need at least 6 hours of assistance per week for at least 6 continuous months and the hourly rate of any award is capped at the Average Weekly Earnings hourly rate. You should be careful, however, not to confuse gratuitous care with commercial care, which is a different claim for damages entirely and which is not the subject of thresholds or caps.
An individual can be considered negligent by committing an act that causes harm or by failing to do something to prevent harm. An individual’s actions are judged against a hypothetical standard known as the “reasonably prudent person” standard. For example, a lawyer who must decide whether a nurse practitioner was negligent by failing to use a sterile needle when taking a patient’s blood would apply the standard by asking: “What would a reasonably prudent nurse practitioner have done in the same situation?”
Hospital negligence includes surgical errors and much more. It also includes improper supervision, insufficient staffing, and misdiagnosis – the failure to conduct or to read accurately the results of medical tests. When any of the people who work at a hospital are responsible for medical malpractice, in most cases the hospital itself can be named as a defendant in a medical malpractice lawsuit.
Medical professionals are held to a higher standard of competence than nonprofessionals. They should have a great deal of knowledge regarding various medical conditions and treatment protocols, and therefore are responsible for providing a high standard of care. Standard of care is defined as what a “reasonable” medical practitioner would have done under similar circumstances. In other words, medical professionals are responsible for using a certain level of knowledge, training, and experience. Medical professionals received extensive training in their field, and can therefore be held to a higher standard than a well-meaning passerby at the scene of an emergency (Bal 2009).
Another potential cause of action is intentional infliction of emotional distress. This is based on a doctor’s outrageous conduct that intentionally or recklessly causes a patient to suffer severe emotional distress. This must be beyond a mere slight as it must be something that would outrage society. The common law tort required a physical manifestation of injury, but most jurisdictions no longer require this element. This cause of action has been successful in some cases in which patients recorded their doctors performing medical treatment while mocking and ridiculing the patient to a serious degree.
There are special rules that apply when a patient has died, for children, and when a patient does not have full mental capacity, which your solicitor will be able to discuss with you. If you feel that you may have a clinical negligence / medical malpractice claim it is always advisable to see a solicitor as soon as possible so that they can advise on the limitation period and take steps to protect your rights to make a clinical negligence compensation claim.
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.
The injury resulted in significant damages - Medical malpractice lawsuits are extremely expensive to litigate, frequently requiring testimony of numerous medical experts and countless hours of deposition testimony. For a case to be viable, the patient must show that significant damages resulted from an injury received due to the medical negligence. If the damages are small, the cost of pursuing the case might be greater than the eventual recovery. To pursue a medical malpractice claim, the patient must show that the injury resulted in disability, loss of income, unusual pain, suffering and hardship, or significant past and future medical bills.
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.
Examples of doctor negligence involve patients' complaints not being taken seriously enough, illnesses being incorrectly diagnosed, GPs refusing to carry out blood tests, incorrect or inappropriate medication being administered, incorrect doses of medication being prescribed, referrals to specialist consultants not being made in time or at all and follow up appointments/treatments not been carried out quickly enough . They can also include serious illnesses (such as cancer) being misdiagnosed as something less serious, broken or fractured bones going undiagnosed due to lack of referral for x-ray, failing to follow-up on a patient’s complaints and concerns, failing to correctly identify an illness or injury and treating an injury or illness in a manner which leads to complications and/or further injury or illness.
The more common (and some believe more reliable) approach used by all federal courts and most state courts is the 'gatekeeper' model, which is a test formulated from the US Supreme Court cases Daubert v. Merrell Dow Pharmaceuticals (509 U.S. 579 ), General Electric Co. v. Joiner (522 U.S. 136 ), and Kumho Tire Co. v. Carmichael (526 U.S. 137 ). Before the trial, a Daubert hearing will take place before the judge (without the jury). The trial court judge must consider evidence presented to determine whether an expert's "testimony rests on a reliable foundation and is relevant to the task at hand." (Daubert, 509 U.S. at 597). The Daubert hearing considers 4 questions about the testimony the prospective expert proposes:
People have a tendency to downplay their injuries because they do not want to be seen by others as complaining or needy. In fact, those that are more severely injured tend to downplay their injuries the most. Before you are convinced that your injuries don’t warrant some type of compensation, it is best to be examined by an independent medical expert. You may be entitled to lost wages, medical expenses, or compensation for pain and suffering.