Medical Malpractice Definition
Medical malpractice is an action or lack of action taken by an individual or entity in the health care industry that leads to the harm of a patient. Medical malpractice can be carried out by doctors, nurses, nursing home workers, physical therapists, surgeons, diagnosticians, anesthesiologists, and more. The event in question can happen at a hospital, outpatient facility, nursing home, surgical site, or even in the comfort of your own home.
Because doctors and nurses have a responsibility to their patients, it is expected that they will do everything in their power to help them. No patient visits a doctor with the intent of suffering additional harm or of being further injured.
- Medical Malpractice Definition
- Viability For A Medical Malpractice Lawsuit
- Common Types Of Medical Malpractice
- Possible Injuries From Medical Malpractice
- Value Of A Medical Malpractice Claim
- Recent Lawsuits and Verdicts
- Medical Malpractice Lawsuit Statute Of Limitations
- Importance of Legal Assistance
Viability For A Medical Malpractice Lawsuit
A medical malpractice lawsuit is a type of personal injury claim that can be brought against the responsible doctor or hospital for injuries suffered due to negligence. Personal injury claims can only be filed if certain requirements are met. In most cases, victims must establish four points of negligence. Medical malpractice also features these four points, but they are slightly modified to accommodate the special situation.
For one, there must be a doctor/patient relationship established between the victim and the healthcare professional. They must have agreed to an exchange of services in some way, such as by setting up an appointment, receiving a referral, or requesting a treatment. In some cases, though, the patient cannot agree; this may happen when there is a crash or an accident and the patient is rushed to the emergency room. He may be unconscious or unable to provide any consent or desire. The operating attendants will simply work to administer the best treatment in order to cure him or save his life.
Next, the professional must have participated in a violation of the standard of care. There are various standards and procedures that doctors and nurses abide by and are viewed as acceptable and necessary. In order to determine if there was a violation, there will usually be other doctors or professionals interviewed who will provide their input. If they would not have acted in the same way under the same circumstances, then the responsible doctor could be viewed as violating the standard.
After that, an injury must have occurred – an actual injury, not an outcome that the patient disliked. If a patient did not get better because of treatment or if an attempted fix turned out to fail, that does not warrant a claim for malpractice. The patient must prove that the injury would not have happened if the doctor had not acted negligently. Injuries that happened as byproducts of the treatment and not as a result of negligent action are not cause for malpractice.
Lastly, the injury must have resulted in significant damage. It is possible for the injury to be of negligible consequence or have no actual affect on the patient’s health. For example, if a patient requires intravenous drugs or medication, the nurse must find a vein for which the needle will be inserted. However, it could be difficult to stick the vein, and she may miss or prick many places, leading to excess puncture wounds. There would be no lasting damages in this case.
If any of these points are shown as false, the medical malpractice claim will fall apart. For instance, if you simply asked a friend for medical advice, even if that friend were a physician, you could not hold him responsible if you were hurt by taking his advice.
Common Types Of Medical Malpractice
There are many different ways that you can be a victim of medical malpractice, and you could be affected at almost any point of the medical process. You may be able to point to the moment you entered the exam room without being admitted to the hospital, or you could pinpoint it as happening during a surgery. You could potentially suffer the injuries as a part of your recovery, or you could be affected by the treatment years later.
It is estimated that over 1,500,000 people are affected by simple medical negligence each year. The number of specific occurrences varies; for example, over 100,000 individuals die each year due to adverse affects to medication, while over 12,000 undergo surgery that is unnecessary – and they eventually pass away due to complications from the treatment. Although these numbers do not seem too high (the percentage is negligible), you must also understand that many of these troubles go unreported. An individual may die without being able to pinpoint the cause on the hospital, or there may not be enough evidence to show that a doctor operated with negligence.
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Misdiagnosis Or Wrong Diagnosis
A misdiagnosis occurs when a physician or diagnostician claims that you are afflicted with an illness or disease, but you are actually suffering from another ailment. The reason a misdiagnosis is so dangerous is because treatment for one could potentially aggravate the other. For example, you be misdiagnosed with cancer and put under radiation treatment, but if the actual cause of your illness is an infection, the radiation could worsen the virus and potentially compromise your immune system.
It is always recommended that you seek out the opinion of multiple doctors before you settle on treatment. You do not want to be misdiagnoses and have to pay for expensive treatment for a sickness that you do not actually have.
Similar to a misdiagnosis, a missed diagnosis occurs in the exam room or upon evaluation. The doctor could examine your x-rays or look over your chart and tests but miss a problem completely. He may not acknowledge your complaints of pain and irregularity. Some doctors do not see what the issue could be if there are even small abnormalities on the chart, and as a result, they may declare you healthy and fit.
Some doctors opt to not test for certain diseases. In fact, an estimated 10 to 20 percent of cancer diagnoses are missed and are not realized until the disease has progressed to a certain level. Often, a missed diagnosis can result in a disease reaching incurable sections.
Foreign Object In Body
During surgery, a doctor or nurse will use tools to make incisions, insert stents, examine blood vessels, take biopsies, and more. The nurse will often clean the area with sponges. In some cases, parts of equipment or cleaning materials could break off or separate, and they may be left in the body. Once the section has been sewn and stitched up, the object will be left in the body. Occasionally, the trouble may not manifest, but over time, the material could leach or begin to press against vital areas.
No matter what, the equipment and surgical tools that are used in healthcare facilities should be sanitary and clean. Professionals should always sanitize needles, throw away anything that is disposable and not reusable, and sterilize their hands before performing any actions. An infection can occur if unclean equipment is used, which could completely compromise a patient’s health.
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Nursing Home Negligence
A nursing home provides care, support, and medical treatment for patients who are unable to care for themselves or whose families have elected for third-party care. The workers are usually tasked with administering medication, keeping quarters clean, ensure that all medical equipment and assistive devices are working, and more.
There are times when those employed at nursing homes do not adhere to such tasks and choose instead to forgo their duties. In the worst cases, nursing staff may be grossly negligent, abusive, and lack any humanity for the patients. They may fail to notify doctors about any complaints the patients have, refuse to feed or give medication to the patients, and allow the patients to live in a degraded or unsanitary state.
Surgery can be dangerous, especially if it’s neurosurgery or heart surgery. A wrong incision can cause extreme bleeding or can permanently damage nerves. These damages are minor compared to other mistakes, though. Sometimes, a chart could be mislabeled and could indicate that the wrong limb must be amputated or operated on. Many individuals have needed to receive multiple prosthetics because of this type of error. Others have had to live through non-necrotic tissue and healthy body parts being removed due to mistakes.
During childbirth, a doctor could mishandle the delivery. There are many opportunities for problems, such as during a C-section; the mother could be greatly injured and the incision could damage the baby. The baby could be injured by the forceps, leading to Erb’s palsy and other injuries; the baby could also be left inside the mother too long, leading to a lack of oxygen and subsequent brain damage. Families can act on behalf of the infant.
A doctor, psychiatrist, or other professional could prescribe medication to you that does not actually work, or he could prescribe too much to take. The wrong dosage of some medication can prove fatal, while mixing medication with other pills can cause hugely negative and adverse effects. It is crucial that you alert your doctor to any other meds that you are taking. If your doctor ignores your disclosure and prescribes you something that is obviously incompatible, he could be cited for negligence and malpractice, especially if you suffered damages.
You may disclose your medical history, allergies, and previous treatments to the doctor. If a nurse or doctor ignores this history, they could miss crucial information. One such example is the presence of an allergy to anesthesia or anesthetic drugs. You may be put under anesthesia during surgery, but an allergic reaction could result in anaphylactic shock. Further, if you were in an accident and had metal plates or screws inserted into your body for structural support, the doctors should be made aware of this if you are receiving an MRI. The metal could be pulled by the magnets, creating extreme injuries. A doctor who refuses to acknowledge history is setting himself up for malpractice.
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Some doctors request that you participate in activities that could harm you. You may be asked to undergo physical therapy but immediately be expected to complete actions on your own. If you try to lift, walk, run, or move in some ways at the doctor’s direction, there could be further injuries. It is possible that you can be injured at a physical therapist’s office while receiving aftercare, as well.
It is important that you recognize when an action is medical malpractice and when it isn’t. There must be some sort of negligent action by the doctor in question. If you are unsure of whether or not an incident can be categorized as malpractice, you can always reach out to a skilled attorney to learn more.
Possible Injuries From Medical Malpractice
Due to the myriad of ways that medical malpractice can occur, it is no surprise that the injuries that can happen are extensive. There is no way to know what kind of injuries will stem from certain mistreatments and negligence. A short list of the potential damages can be found below:
- Nerve damage
- Wrong amputation
- Brain damage
- Phantom pain
- Broken bones and fractures
- Deep bruising and sprains
- Infection and illness
- Anaphylactic shock
- Internal organ damage
- Internal bleeding or hemorrhaging
- Advancement of cancer and other diseases
These injuries can be permanent, long lasting, or have no way of being reversed or treated. The presence of such injuries can directly influence the amount of compensation you receive if you pursue a medical malpractice claim.
Value Of A Medical Malpractice Claim
Victims of medical malpractice may wish to pursue ample compensation for their damages, which can be measured in various ways. The insurance agency will come up with an offer if a settlement is pursued, or a lawyer will request a certain amount of damages in a trial setting. As seen below, there are many factors that determine the worth of a case. A few of the different factors include:
- Extent of injuries
- Impact injuries had on daily life and career
- Level of negligence in incident
Once these factors have been weighed, an offer will be made. Victims will pursue various types of damages, including compensation for the following:
- Medical bills and expenses from the past and future for surgery, medication, assistive devices, restructuring of the home, physical therapy, and more
- Lost wages due to recovery time, injury, or future medical procedures
- Emotional pain and suffering to cover the distress, mental anguish, psychological trauma, and more that resulted from the incident (these damages, in California, are capped at $250,000)
- Punitive damages, which are handed out when the doctor was grossly negligent or intended to harm the patient (these damages are awarded in civil cases as a way to punish the defendant and prevent him from acting the same way in the future)
- Wrongful death damages, which are awarded if a family member or loved one dies in the incident; the responsible party can cover funeral and burial costs, loss of consortium, loss of expected earnings and savings, pre-death medical bills, pre-death pain and suffering, and more
There has been a distinct drop in medical malpractice claims over the years. It was not uncommon to see nearly 20,000 claims per year in the late 1990s, but as time has moved on, fewer cases have been filed. In the same time frame, the cost of such claims has similarly decreased (as one would expect), from nearly $3 billion to around $1 billion.
The issue is that less than 3% of victims of medical malpractice actually file legal claims for compensation, whether due to a lack of evidence, a lack of desire, unawareness of the law, pressure to not sue, or any other reason.
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Evidence For A Medical Malpractice Lawsuit
In order to file a medical malpractice lawsuit, you must be able to prove that the doctor acted negligently. To do this, you will need ample evidence and proof. This can be found by keeping a meticulous record of all instances related to your medical treatment. You can hold on to the following:
- Hospital receipts
- Doctor’s notes and recommendations for treatment
- Second opinions
- Charts and X-rays
- Photographs of your injuries
- Procedure footage (if available)
- Eyewitness statements
- Surveillance or security footage
- Third-party statements regarding medical equipment, treatments, and more
- Expert medical witness testimony
Once you have gathered all of your evidence, you can consult with an attorney to get started. You will need to formally notify the healthcare professional or facility that you are filing a medical malpractice claim. You must do this at least 90 days prior to the actual filing of the claim. Contents in this form must include the legal basis, the physical injuries, and the losses or damages. /li>
Recent Lawsuits and Verdicts
To better understand how negligence in medical malpractice works, we have provided summaries and explanations of some recent lawsuits. These cases range from victories for the plaintiffs to rulings for the defense and feature different types of healthcare professionals. Understanding these cases and the patterns of negligence is important to understanding your own medical malpractice claim.
Vargas v. Kasow
In Christian Vargas v. Mark Kasow, M.D., Vargas fell off a ladder while at work. He was eligible for worker’s compensation coverage for treatment of his injuries. He initially complained of pain in his right foot and ankle.
At the hospital, Kasow diagnosed Vargas with a severely sprained ankle, but no other damages. A sprain can cause intense pain, often preventing the individual from being able to walk or stand properly without assistance. Kasow advised Vargas to stop bearing weight or lifting anything, use crutches for assistive movement, elevate the foot, and take painkillers with ice baths to counter the swelling and pain. Kasow consulted the x-ray and found nothing abnormal.
A second visit from Vargas again prompted an x-ray, and again, Kasow found nothing abnormal. Over the course of two months, Kasow saw Vargas numerous times; in one of the visits, he was able to squat and walk, and talked about feeling better.
Months after the initial visit, Kasow discovered a fracture on Vargas’s ankle. Vargas was cleared to return to work two weeks previous to the visit and x-ray.
As a result of the discovery, Vargas and his counsel contended that Kasow misinterpreted the x-rays. Vargas required a fusion surgery that would not have been necessary had the diagnosis been made earlier, according to him. However, the numerous visits and x-rays supported Kasow’s initial judgments that there were no damages to the ankle that warranted additional treatment.
Vargas pursued over $400,000 for loss of earning capacity and future medical treatments. Ultimately, the jury sided against him; they concluded that the fracture in question must have happened after the series of visits with Kasow, indicating a separate incident or aggravation due to Vargas’s own negligence. Kasow was found not guilty of any negligence towards Vargas.
Gewrgious v. Tran
Fifi Gewrgious v. Alan Thai Tran, M.D. was a case featuring a seamstress and a plastic surgeon. Gewrgious met with Tran numerous times to discuss rhinoplasty, or a nose adjustment, to correct her breathing troubles. The myriad visits outlined the procedure and involved many forms. The forms did indicate that there may be scarring after the procedure.
Once the surgery was completed, Gewrgious noted that she had a small scar on her nose. She claimed that the scar impacted her image and, as a result, she was unable to return to work due to intense embarrassment and psychological suffering. She also claimed that the forms she signed with Tran did not include any notice about scarring.
At trial, it was shown that the consent form did include mention of scarring. Further, Tran was able to show that he had treated Gewrgious with ample care throughout the meetings and procedure. The defense noted that Gewrgious elected not to return to work because she wished to travel and settle down as a mother. Her ability to work was, therefore, not impacted, and her choice to not return was her own.
Of the $250,000 damages Gewrgious sought, she was not awarded anything and lost the case. The jury found that Tran did nothing wrong in his practice and did not contribute to any injuries or stoppage of work.
Williams v. Mehrizi
In Jerry Williams v. Brotman Medical Center, Nasser Mehrizi M.D., Mike Khosrow, Mirahmadi M.D., Southern California, Healthcare System Inc. dba Southern, California Hospital at Culver City, Williams required a leg amputation.
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The patient was taken to the hospital due to gangrene on his right foot. It was a fast spreading form known as gas gangrene that causes tissue death. Because of the risk of additional infection, Mehrizi advised amputation.
Williams contended that he never consented to the amputation; he said that the doctor should have sought another form of treatment without taking the most extreme and permanent option first. The defense stated that the condition was an emergency and the treatment was necessary. Williams needed a prosthetic for his missing limb and sought over $200,000 in damages.
At the trial, it was shown that Williams’ daughter provided the consent to amputation. In the situation of an emergency, consent will usually be asked by surviving family members or immediate next of kin. Williams being unable to give his consent necessitated another party to do so.
As a result, the jury declined to award Williams any damages. The consent of his daughter allowed the operation to take place, and Mehrizi and other attending doctors were not held liable for any injuries.
Guedes v. Kassabian
In Rita De Cassia De Souza Guedes v. Garo, Kassabian M.D., Garo Kassabian M.D. Inc., and Lift MD Aesthetics, Guedes sued the plastic surgeon responsible for administering her facial treatments.
She had initially received one treatment by Kassabian, who stated that the treatment would make her appear more youthful. However, upon returning for a second treatment, Guedes’s face became “enlarged, swollen, uneven, and disfigured.” The product that was used had a negative reaction, and Kassabian attempted to correct it with a laser surgery; the surgery left Guedes with facial burns.
Kassabian stated that he gave a contract to Guedes that informed her of the risks and procedure of the treatment. She differed and said that, due to speaking primarily Portugeuse, she was not aware of waht she was signing and that Kassabian had told her it was merely a receipt.
It was shown that the laser treatment Kassabian used was not recommended by the company and that Kassabian did not tell Guedes that the product in her face was permanent, unlike other materials. Due to her status as a prominent actress, she was unable to get additional contracts – her facial disfigurement prevented her from being the face of any movies or award shows.
The jury decided that the release form and consent form that Guedes signed was not valid and that Kassabian was negligent in all parts of the treatment, from the administration of the product to the laser removal. Guedes was awarded over $1,000,000 for her damages.
Fregoso v. Parkview Community Hospital Foundation
In Valeria Fregoso, individually and as personal representative of Baby Girl Abigail Fregoso, deceased v. Parkview Community Hospital Medical Center, a California corporation; Parkview Community Hospital Foundation, a California corporation; Paulus Santoso, M.D.; James Morales, R.N.; Ifeoma Ukoha, R.N.; Belinda Beaver, R.N.T.; Michelle Connors, R.N.; Marcia, Montoya, R.N.; Cheryl Dover, U.S.; Fregoso sued the hospital and the attending for negligence in the stillborn birth of her daughter.
Fregoso had been previously diagnosed with a case of pre-eclampsia, which can induce seizures. She had fainted and been to the hospital where the condition was discovered. A month later, she was admitted to the hospital with pregnancy pain.
Fregoso was told to walk around to help induce labor. To do so, she needed to remove the fetal heart rate monitor. She walked for nearly two hours, but when she returned to the bed, the heart rate monitor could not detect a heartbeat. An emergency C-section was performed, but it was discovered that the placenta had ruptured.
Prior to her walk, the nurses had noticed that the baby’s heart rate accelerated, but did not consider it a worthwhile event due to Fregoso vomiting. They did not report the increased heart rate to the doctor, especially because the baby’s heart rate returned to normal.
The defense claimed that given the nature of the rupture, there was a slim chance that the baby would have survived. The doctor noted that if he had been aware of the hypertension, he would not have allowed Fregoso to go on a walk.
Because of the presence of pre-eclampsia and the failure to disclose the increased heart rate, the nurses were viewed as liable for the ensuing stillbirth of Fregoso’s child. The Parkview Community Hospital Medical Center was held accountable for the damages. The jury awarded Fregoso $500,000 for the loss.
If you can show that a doctor was directly responsible for the injuries you suffered and the effect the injuries had on you, you could have a solid foundation for a medical malpractice claim. If a case goes to trial, it will be up to the jury to decide if the evidence you provided is sufficient enough to warrant awarding you the damages you seek.
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Medical Malpractice Lawsuit Statute Of Limitations
In California, there are standards that determine how long you have to file a claim against the responsible party if you were injured in an incident. The statute of limitations can be extended in some cases, but if you miss the deadline, you will be barred from pursuing restitution. Although most personal injury lawsuits must be filed within 2 years of the date of the injury, medical malpractice claims are different.
You have one year from the discovery of the injury to file a lawsuit against the responsible healthcare professional or entity, or you have 3 years from the date of the injury itself, whichever comes first. This means that you may not be aware of an injury until 2 years after the damage occurred, which would allow you to sue.
It is also important to note that if the type of malpractice you suffered was a foreign object being left in your body, you would not have to adhere to any statute of limitations. You would have an unlimited time to sue.
There are some exceptions to the statute of limitations. These exceptions are known as tolling the statute, and an attorney can determine if you are eligible. The most common exception is age; for example, those under the age of 6 cannot have lawsuits filed on their behalves after their 8th birthdays, while other minors have 3 years from the date of the incident. This is different from other personal injury claims, which state that the statute is suspended until the child turns 18 years old.
If you were left physically incapacitated or mentally unwell and could not file a claim, your statute would also be suspended until you returned to a functioning state of mind or body. This is common in patients who suffer brain damage or who are in comas.
Importance of Legal Assistance
Given that so many medical malpractice claims are not filed, it is no surprise that many people find them difficult or troublesome. Victims may not want to deal with the legal details of the case, or they may not want to provide information due to having to relive a traumatic time.
An attorney can represent you and ensure that all of your evidence is submitted on time and that you do not have to lift a finger when it comes to arbitration or litigation. The law firm will hire expert witnesses, handle any depositions, collect additional statements, file documents, set up court dates, and more.
It is in your best interest to consult with a lawyer with expertise in medical malpractice or to request a second opinion if you are already represented by a firm. Victims should not be held accountable for extensive medical bills if a doctor who was responsible for caring for them was the cause of their injuries.