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When illness or injury forces you to see a physician or go to the hospital, you can generally be assured that a medical professional's years of experience and training will result in excellent treatment. But in truth, medical care providers are only human, and errors are always possible. Medical malpractice occurs when a negligent act or omission by a doctor or other medical professional results in damage or harm to a patient.
Negligence by a medical professional can include an error in diagnosis, treatment, or illness management. If such negligence results in injury to a patient, a legal case for medical malpractice can arise against:
Medical malpractice laws are designed to protect patients' rights to pursue compensation if they are injured as a result of negligence. However, malpractice suits are often complex and costly to win. Therefore, if you believe you have a medical malpractice claim, it is important to consult with an attorney who will discuss your case with you, and help you determine your best options.
Due in part to the power and resources of health care industry lobbyists, many states have passed legislation making it more difficult to bring and prevail in medical malpractice actions. In most states today, physicians and hospitals are protected by legal limits, called "caps," on the amount of damages and attorneys' fees that can be awarded in malpractice suits. Also, most states have a two-year time limit for filing malpractice actions, unless extraordinary circumstances affect the case.
One obstacle plaintiffs in many states may have to overcome before they can even file a malpractice action against a health care professional is the requirement that they file what is commonly known as a "certificate of merit." In order to file a certificate of merit, a plaintiff will first have to have an expert, usually another physician, review the relevant medical records and certify that the plaintiff's health care provider deviated from accepted medical practices, which resulted in injury to the plaintiff. The plaintiff's attorney then files the certificate of merit, which confirms that the attorney has consulted with a medical expert and that the plaintiff's action has merit.
Medical malpractice can be committed by several types of health care professionals and, in a case where a hospital employee commits malpractice, the hospital itself may be held liable under the legal doctrine of "respondeat superior." Under this theory, an employer may be held liable for the negligent acts of its employee if the employee was acting within the scope of his or her employment when the negligence occurred. This doctrine is very important to plaintiffs in medical malpractice cases, because it helps ensure there will be a financially responsible party to compensate an injured plaintiff.
In some situations, commonly involving attending physicians working in hospitals, health care providers are considered independent contractors rather than employees, which makes the doctrine of "respondeat superior" inapplicable. What this means is, if a doctor or other health care professional an independent contractor, and commits malpractice while treating a patient in a hospital, the hospital cannot be held liable for the doctorÂ?s negligence. However, the hospital can be held liable for its own negligence, for example, in granting attending privileges to an unlicensed or incompetent physician.
In general, there are no guarantees of medical results. An unanticipated or unsuccessful result from medical treatment or surgery does not, in itself, mean that medical malpractice has been committed. Nonetheless, if you believe you may have been the victim of medical malpractice, you should meet with an experienced attorney as soon as possible to discuss the facts of your case and receive a professional evaluation of your situation, especially in light of time limits for filing a medical malpractice lawsuit.
If you have been injured through a doctor's negligence, you may feel that you should adopt a "wait-and-see" approach with respect to your injury, and deciding whether you want to pursue your legal remedies. You should bear in mind that the law requires you to pursue legal remedies sooner rather than later. This requirement is generally known as "statute of limitations." If you fail to file your claim within the statute of limitations you may be forever barred from bringing your claim, regardless of the merit of your claim. Finally, statutes of limitations applicable to medical malpractice actions are often shorter than for other types of personal injury actions. Therefore, even if you do not think you will be bringing a lawsuit, consulting with an experienced personal injury attorney is essential to determine if any action should be taken to preserve your potential claim.
When Does the Statute Begin to Run in Medical Malpractice Cases?
Courts take different views on when the statute of limitations begins to run in medical malpractice cases. To some extent, the difference in these views is a reflection of the wording in the statutes. The difference also reflects the courts' views on the relative merit of protecting injured parties versus protecting medical providers by enabling them to defend themselves when records are still in existence and recollections are still fresh.
In some courts, the time for filing a claim begins to run upon the occurrence of the act or omission the plaintiff claims constituted malpractice. Other courts say that the time begins running when the act or omission results in injury. Another view is that the time begins to run when the plaintiff discovered or should have discovered he or she was injured. A fourth view is that the time begins to run when the treatment concludes.
Things get even more complicated when the injured party dies. In the case of malpractice causing death, the courts must first decide whether the wrongful death statute applies or whether the statute of limitations for medical malpractice applies. Once that is decided, the court must then decide what triggers the running of the statute of limitations. The courts may say that the statute begins to run when the plaintiff dies. Or the court may decide that the statute begins to run when the action that allegedly caused the death occurs. Another court may decide that the time begins to run when the plaintiff discovers or should have discovered the harm done or that the death was caused by malpractice. Yet another view would be that the statute of limitations begins to run on the date of the last treatment, which may or may not be the date of death or the date the plaintiff discovered the harm done by the malpractice.
Getting Legal Help
State laws are frequently revised from year-to-year, including statutes of limitations, so it is important to speak with an attorney to understand how your state's current laws will apply in your case. Go here to find an experienced medical malpractice attorney near you.
In many situations where medical care or treatment is provided to an individual, medical professionals are required to obtain the patient's "informed consent." Although the specific definition of informed consent may vary from state to state, it means essentially that a physician (or other medical provider) must tell a patient all of the potential benefits, risks, and alternatives involved in any surgical procedure, medical procedure, or other course of treatment, and must obtain the patient's written consent to proceed.
The concept of informed consent is based on the principle that a patient has the right to prevent unauthorized contact with his or her person and, thus, a physician has a duty to disclose information to the patient so that he or she can make a reasoned decision regarding treatment, based on an understanding of the treatment to be provided.
In many situations, the failure to obtain informed consent is a form of medical negligence, and may even give rise to a cause of action for battery. In certain situations, informed consent is an absolute necessity. For example, in any medical trials or experiments that receive federal funding, informed consent must be obtained from any human participant or subject.
Physicians themselves, rather than a representative, nurse, or other related health care professional, are the best choice to speak to patients about informed consent. In discussing the matter with a patient, the physician should cover:
A physician should also ensure that patients understand what they're hearing. In fact, some hospitals now require physicians to participate in courses on communication skills.
The patient, or the patient's legally authorized representative consenting to the treatment on the patient's behalf, must sign and date the informed consent documents, and must be given a copy of the informed consent documents once they are signed and dated. A copy of those documents should also be placed in the patient's file.
Although a physician is required to inform a patient about benefits, risks, and alternative treatments, patients must also play a part in the informed consent process. Patients must listen to the physician and should ask questions of the physician if they do not understand, or if they would like more detailed information.
Informed consent may be either "express" or "implied." Express consent is given in writing or verbally. If a patient's consent is written, it should include the name of the health care professional who discussed the proposed treatment with the patient, the name of the health care provider who is to perform the procedure, and the date, time and location where the consent form was signed.
Consent not given by a patient in writing or verbally, but understood from the circumstances surrounding the procedure or treatment at issue, is known as implied consent. Consent may be implied when, for instance, a patient presents him or herself for a relatively simple, non-invasive procedure. Consent is also usually implied for necessary procedures a surgeon might perform in the course of a surgical procedure to which the patient did consent.
Situations Not Involving Medical Procedures or Treatment. Not all situations require that informed consent be given. For example, although listening to a heartbeat through a stethoscope may be considered a "treatment" or "procedure," to some people (especially those who are uncomfortable in physician's offices), it's rare that a physician and patient would have a lengthy discussion about the benefits and risks of listening to a heartbeat using that device.
Emergency Situations: In emergency situations, there is not always time to obtain a patient's informed consent, or the patient may be unconscious and unable to communicate. If an emergency involves risk to the patient's life or the patient is unable to communicate, consent may be implied under the rationale that the patient would have consented to emergency treatment.
Medical malpractice is negligence of a professional healthcare provider, such as a doctor, nurse, dentist, or hospital, whose treatment of a patient departs from a standard met by those with similar training and experience, that results in harm to a patient.
In general, there are no guarantees of medical results, and unexpected or unsuccessful results do not necessarily mean negligence occurred. To succeed in a medical malpractice case, a plaintiff has to show an injury or damages that resulted from the doctor's deviation from the standard of care applicable to the procedure.
You should talk to a lawyer who specializes in such cases, as soon as possible. Tell the attorney exactly what happened, from your first visit to the doctor or other health care provider, through your last contact with him or her. If possible, obtain your medical records and bring them to your first meeting with the attorney. There are time limits governing how long someone may bring a medical malpractice claim, so time is of the essence.
Although the specific definition of informed consent may vary from state to state, it means essentially that a physician (or other medical provider) must tell a patient all of the potential benefits, risks, and alternatives involved in any surgical procedure, medical procedure, or other course of treatment, and must obtain the patient's written consent to proceed.
Your physician had a duty to tell you that the drug was part of an experimental program, and you had the right to refuse to participate in it. You may have grounds for an action against your doctor based on his/her failure to obtain your "informed consent" relative to this treatment.
Yes, you still may be able to recover damages. A consent form does not release a physician who performed a procedure negligently from liability. If you can establish that your doctor deviated from the applicable standard of care in performing the procedure, and you were injured as a result, you may still recover against him/her. You may also have a claim that the procedure the physician performed went beyond the consent you gave, in which case the doctor might even be liable for battery.