What Is Medical Malpractice?
Medical malpractice is a negligent or careless act committed by a doctor or other health care provider. If an injury to a patient occurs while a health care provider is performing below the standard of care required in diagnosing or treating medical conditions, the patient may have a cause of action for medical malpractice against that health care provider.
Standard of Care
The “standard of care” is the accepted standard recognized by other health care providers in the same field of medicine under similar circumstances. Each health care provider must act with the degree of skill, knowledge, and care that a regular health care provider would. You cannot sue the health care provider for something that was a natural consequence of your disease or illness, or that was a natural or expected result of treatment. You may sue if the health care provider failed to inform you, misdiagnosed you, or failed to use the correct treatment.
A health care provider is expected to keep up with different techniques that are used to diagnose and treat patients. The health care provider is also required to consult with a specialist when he/she knows that better treatment and diagnosis will be obtained if they do so. If the health care provider does not keep up with the different diagnosis and treatment techniques, or does not consult with another specialist when necessary for better treatment, then the health care provider is responsible for any injury that happens to you.
The following list illustrates examples of what is meant by the term “below the standard of care”
• Failing to diagnose a tumor while reading an x-ray
• Puncturing a nearby organ or tissue during surgery
• Improperly performing surgery or a procedure
• Failing to remove a sponge or other article after surgery
• Failing to properly deliver a baby, resulting in cerebral palsy or other brain damage
• Failing to care properly for the mother before or during delivery
• Failing to order necessary and appropriate medical tests
• Failing to diagnose a condition in time to treat it properly
• Failing to refer a case to a medical specialist
• Prescribing incorrect medication
• Incorrect diagnosis that results in a failure to treat a medical condition
• Negligent caring for an elderly patient
• Failing to properly administer anesthesia
• Emergency room negligence
Health Care Providers include doctors, nurses, dentists, chiropractors, psychologists, and psychiatrists. The health care provider is only held responsible under these laws if he/she is acting within his/her job definition. For example, if you go to a “back specialist” who is not a licensed health care provider and you get injured you can not sue the “back specialist” for medical malpractice because the “back specialist” does not fall under the category of a legal professional health care provider. You may have a case under another legal theory; however, you should speak with an attorney before going further.
Who Can You Sue?
• The injured person can sue the health care provider for the injury.
• If the health care provider works for a hospital you can sue the hospital if the health care provider caused the injury while working for the hospital.
• If it is not a doctor, but someone on the doctor’s staff who caused the injury, then you can sue the doctor as well.
One type of medical malpractice is based on a doctor’s failure to adequately inform you before a medical procedure. Without being adequately informed of the planned treatment, you cannot give an informed consent to proceed.
A good written informed consent form would include:
• Identification of the physician or surgeon who’ll be performing the medical procedure
• The physician or surgeon’s qualifications
• Your present medical condition
• The purpose of the proposed procedure
• The risks involved in the procedure
• The alternatives, including their risks, including non-treatment if that’s an option
• The chances of the procedure’s success
• The expected length of recovery time
• The approximate cost of the procedure and whether it will likely be covered by your health insurance
You must also have the opportunity to ask the doctor questions, and talk it over with family if you want.
Once you’ve given your written consent, the physician can’t exceed the scope of the consent. Obviously, surgeons are going to have to take reasonable actions during surgery when they come upon the unexpected. However, the surgeon is not permitted to presume that you would have selected certain treatment if there had been ample time to obtain your consent without health risks or hardship to you.
Signing an informed consent form doesn’t mean your doctor or the hospital can’t still be held accountable for malpractice. It’s not like saying: “I’ll take the procedure as is.” The doctor is still required to act within the required standard of care.
Exceptions to Informed Consent:
• In emergency situations, where you are unconscious or otherwise incapacitated
• For doctor/patient diagnostic interactions that don’t rise to the level of treatment (such as reflex testing or listening to your heartbeat with a stethoscope
• When a patient cannot give informed consent due to unconsciousness or mental disability, medical personnel will sometimes ask a court to appoint a guardian or guardian ad litem to make informed consent decisions for the patient.
• Generally, parents can give informed consent for their minor children.
A child can seek damages from negligence that resulted in his or her birth. The courts may give damages to a child who was born with genetic and hereditary defects that could have been discovered and disclosed to the parents. For example, if a child is born with severe defects that should have been caught had the doctor performed the correct tests is the basis for a valid lawsuit. However, courts will not give damages to a healthy child that seeks damages for being born.
Other Areas of Liability
A patient can bring an action for battery if the doctor performs an operation or treatment that the patient did not want. Even if the treatment or operation is successful, the doctor can still be sued. This can happen if you receive treatment even though you told the doctor you did not want it. Another example would be if you gave the doctor permission to do one thing and he performs another. The doctor can also be sued if he or she uses general blood supply when family-donated blood was requested.
A family member can sue a doctor for negligent infliction of emotional distress. This occurs when a family member suffers emotional injuries from the shock of watching a family member suffer because the doctor did not treat or diagnose the patient correctly.
If a doctor initiates a sexual relationship with a patient during treatment for a physical disorder, he/she may be held responsible for any damages that occur from that relationship.
The plaintiff’s damages may include compensatory and punitive damages. Compensatory damages are both economic and non-economic. Economic damages include financial losses such as lost wages (sometimes called lost earning capacity), medical expenses and life care expenses. These damages may be assessed for past and future losses. Non-economic damages are assessed for the injury itself: physical and psychological harm, such as loss of vision, loss of a limb or organ, the reduced enjoyment of life due to a disability or loss of a loved one, severe pain and emotional distress. However, non-economic damages may not exceed $250, 000. The cap applies whether the case is for injury or death, and it allows only one $250,000 recovery in a wrongful death case. This number applies separately to each claim you bring, but this number may differ from state to state, so check with an attorney before proceeding further. Punitive damages are only awarded in the event of wanton and reckless conduct.
Health Care Providers Other Than Doctors
A hospital is responsible for providing a safe environment for patient diagnosis, treatment and recovery. The amount of care that the hospital must provide depends on the patient’s particular condition or illness.
All chiropractors must perform their duties with the knowledge, care, and skill they have obtained. A chiropractor is not, however, held to the same standards that other doctors are held to. Therefore, if the chiropractor is using skills that are seen as appropriate within the chiropractic community and you are injured, the chiropractor may not be responsible for the injury that occurs. However, rules are different in each state and you should consult with an attorney before proceeding further.
Nurses can be held responsible for patient injuries that occur while under their care. A nurse must notify a doctor about the important changes in a patient’s condition. A nurse must also provide sufficient assistance to a patient that is disabled. A nurse must also administer injections correctly or she may be sued.
In addition to being responsible for a patient’s dangerous actions, psychologists and psychiatrists must also be responsible for their patients’ harm to themselves. For example, a therapist can be sued for wrongful death if the therapist knew the patient was going to commit suicide and did nothing to stop it. The doctor does not have to inform the patient’s family members of this, but he/she may have a duty to inform a subsequent therapist.
If you or someone close to you has been injured, contact an experienced and successful attorney to help assess your rights. With over 29 years of experience, the Simon Law Group will provide a free and confidential consultation when you call 480-745-2450 or click on “Contact Our Firm” and we will E-mail you shortly. Please let us help you during this painful and difficult time.
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