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Medical Malpractice – What is It?

To put it simply, Medical Malpractice is negligence on the part of a healthcare provider that resulted in injury. Medical Malpractice cases may result from misdiagnosis of a disease, failure to provide appropriate treatment for a known disease, or unreasonable delay in treating a condition. The parties involved in a Medical Malpractice case are the Plaintiff, the Medical Malpractice Attorney, the Defense, and Expert Witnesses.

The Plaintiff is often the patient, although an administrator or executor of the estate may also act as Plaintiff if the patient died as a result of the injury. Before a patient may file a Medical Malpractice case they must be able to prove that the physician or care provider failed to provide adequate care and this failure was the direct cause of the injury. The Plaintiff must also present proof of damages such as whether there are physical or emotional damages.

MEDICAL MALPRACTICE ATTORNEY MUST AVOID FILING FRIVOLOUS LAWSUIT

It is the responsibility of the Malpractice Attorney to review all of the facts presented by the Plaintiff to avoid filing a frivolous lawsuit. If a judge determines that there is no legal merit to claims made by the Plaintiff then the court may impose fines for both the Malpractice Attorney and the Plaintiff for tying up the court. If the Defendant feels he/she is the victim of a frivolous lawsuit they may counter sue the Plaintiff to recuperate their court costs and may also seek punitive damages.

DEFENSE ATTORNEY PROCESS IN A MEDICAL MALPRACTICE

Usually the Defense consists of a physician, but in some instances a nurse may also be named as a defendant depending on his/her involvement with the patient. The Defense is also allowed to call expert witnesses to support their case and the Attorney is usually assigned by the hospital or facility that employs the practitioner. Both Attorneys for the Plaintiff and Defense are required to share information prior to the court date, and the parties may choose to settle out of court through negotiations.

EXPERT WITNESSES IN A MEDICAL MALPRACTICE CASE

Expert witnesses must be carefully screened prior to trial. Usually a judge will call a hearing prior to the trial to determine if the “expert’s” testimony is reliable and relevant to the case. Some questions the judge will consider are if the theory and/or technique proposed by the witness can be tested, and if it has been tested what the rate of error was for the results. A person cannot be considered an Expert in a Medical Malpractice case just because they have a college degree. All Expert witnesses must prove they have sufficient knowledge or experience with the specific area in question before the court considers them reliable.

AWARDS AND FEES FROM MEDICAL MALPRACTICE AND STATUTE OF LIMITATIONS

Every state has established Medical Malpractice statutes and it is important to become familiar with these laws prior to filing a Medical Malpractice case. With respect to Florida Medical Malpractice cases, the damages awarded to the Plaintiff will be reduced depending on how much of the injury was the Plaintiff’s fault. If a Plaintiff is determined twenty-five percent responsible for their injury, than the damages awarded to them will only be seventy-five percent the original amount.

A Florida Medical Malpractice Attorney may only collect thirty percent in fees on the first $250,000 awarded to the Plaintiff and only ten percent on amounts greater than this. In contrast, a Massachusetts Medical Malpractice Attorney fees are limited to forty percent of the first $150,000 awarded and only twenty five percent of damages awarded over $500,000. There is usually a statute of limitations that requires Medical Malpractice claims to be filed within two years from the date the injury occurred, or within two years from when the injury should have been detected.

What Is Medical Malpractice?

In medical malpractice, a doctor or medical facility has failed to live up to its obligations, resulting in a patient’s injury. Medical malpractice is usually the result of medical negligence – a mistake that was unintentional on the part of the medical personnel.

Determining if malpractice has been committed during medical treatment depends on whether the medical personnel acted in a different way than most professionals would have acted in similar circumstances. For example, if a nurse administers a different medication to a patient than the one prescribed by the doctor, that action differs from what most nurses would have done.

Surgical malpractice is a very common type of case. A cardiac surgeon, for example, might operate on the wrong heart artery or forget to remove a surgical instrument from the patient’s body before stitching the incisions closed.

Not all medical malpractice cases are as clear-cut, however. The surgeon might make a split-second decision during a procedure that may or may not be construed as malpractice. Those kinds of cases are the ones that are most likely to end up in a courtroom.

The majority of medical malpractice lawsuits are settled out of court, however, which means that the doctor’s or medical facility’s malpractice insurance pays a sum of money called the “settlement” to the patient or patient’s family.

This process is not necessarily easy, so most people are advised to hire an attorney. Insurance companies do their best to keep the settlement amounts as low as possible. A lawyer is in a position to help patients prove the severity of the malpractice and negotiate a higher sum of money for the patient/client.

Lawyers generally work on “contingency” in these types of cases, which means they are only paid when and if a settlement is received. The lawyer then takes a percentage of the total settlement amount as payment for his or her services.

Different Types of Medical Malpractice

There are different kinds of malpractice cases that are a result of a variety of medical mistakes. Besides surgical errors, a few of these cases include:

Medical chart mistakes – In this case, a nurse or physician makes an inaccurate note on a medical chart that leads to more mistakes, such as the wrong medication being administered or an incorrect medical procedure being performed. This could also lead to a lack of proper medical treatment.

Improper prescriptions – A doctor might prescribe the wrong medication, or a pharmacist might fill a prescription with the wrong medication. A doctor may also fail to check what other medications a patient is taking, causing one medication to mix in a dangerous way with the other. Some pharmaceuticals are “contraindicated” for certain conditions. It might be hazardous, for example, for a heart patient to take a particular medication for an ulcer. This is why doctors need to know a patient’s medical history.

Anesthesia – These kinds of medical malpractice claims are usually made against an anesthesiologist. These professionals give patients medication to put them to sleep during an operation. The anesthesiologist usually remains in the operating room to monitor the patient for any signs that the anesthesia is causing problems or wearing off during the procedure, causing the patient to awaken too soon.

Delayed diagnosis – This is one of the most common types of non-surgical medical malpractice cases. If a doctor fails to determine that someone has a serious illness, that doctor might be sued. This is especially dire for cancer patients who need to detect the disease as early as possible. A wrong diagnosis can cause the cancer to spread before it has been detected, endangering the patient’s life.

Misdiagnosis – In this case, the physician diagnoses a patient as having a disease other than the correct condition. This can lead to unnecessary or incorrect surgery, as well as dangerous prescriptions. It can also cause the same injuries as delayed diagnosis.

Childbirth malpractice – Mistakes made during the birth of a child can result in permanent damage to the baby and/or the mother. These kinds of cases sometimes involve a lifetime of payments from a medical malpractice insurance company and can, therefore, be extraordinarily costly. If, for instance, a child is born with brain damage as a result of medical malpractice, the family might be awarded regular payments in order to care for that child throughout his or her life.

What Happens in a Medical Malpractice Case?

If someone believes they have suffered harm as a result of medical malpractice, they must file a lawsuit against the responsible parties. These parties might include an entire hospital or other medical facility, as well as a number of medical personnel. The patient becomes the “plaintiff” in the case, and it is the burden of the plaintiff to prove that there was “causation.” This means that the injuries are a direct result of the negligence of the alleged medical professionals (the “defendants.”)

Proving causation usually requires an investigation into the medical records and may require the assistance of objective experts who can evaluate the facts and offer an assessment.

The settlement money offered is often restricted to the amount of money lost as a result of the injuries. These losses include medical care costs and lost wages. They can also include “loss of consortium,” which is a loss of benefits of the injured patient’s spouse. Sometimes, money for “pain and suffering” is offered, which is a non-financial payout for the stress caused by the injuries.

Money for “punitive damages” is legal in some states, but this generally occurs only in situations where the negligence was extreme. In rare cases, a physician or medical facility is found to be guilty of gross negligence or even willful malpractice. When that happens, criminal charges may also be filed by the local authorities.

In examples of gross negligence, the health department might revoke a doctor’s medical license. This does not happen in most medical malpractice cases, however, since doctors are human and, therefore, all capable of making mistakes.