Enjuris tip: Experiencing a negative outcome in your medical treatment does not necessarily mean the health care provider was negligent.
Medical malpractice and negligence
As in any personal injury case, negligence must be proven in court for the victim to receive compensation. The four elements of negligence are below.
For this example, let's assume that you have taken your daughter to the doctor with a deep cut on her arm, and the doctor accidentally used contaminated tools to stitch the wound. Her arm then becomes infected and she requires emergency medical care.
Duty: Once the doctor/patient relationship is established, the health care provider owes a duty of care. This duty requires her to act as any other doctor would act in the same situation. She is required to follow standard medical guidelines that are widely accepted in the medical field.
In this instance, you took your daughter to the doctor, submitted personal information in the office and had a medical exam conducted on your daughter's wounded arm. This situation established that the doctor had a duty of care and must act as any other physician would in the same situation.
Breach: After a duty of care is established, your physician must exercise reasonable care and treat the patient as any other doctor would. He has to follow common procedures and actions.
In this example, the duty was breached when your doctor violated standard protocol by using contaminated tools to stitch your daughter's wound, rather than sanitized tools.
Injury: You must suffer an injury because of the actions of the physician.
In this case, your daughter got an infection from the dirty tools that were used to stitch the wound. To win a medical malpractice suit, your lawyer must prove that these dirty tools directly caused the infection.
Damages: Your lawyer has to prove that the patient (in this case, your daughter) suffered economic or non-economic damages from the injury.
In our example, perhaps your daughter had further medical bills that would have been unnecessary without the infection. You had further costs from missing work to take her to her appointments, as well as travel costs. If there was substantial scarring, perhaps she had non–economic damages, as well.
For the medical professional to be found negligent, your attorney must show that her conduct fell below the "accepted standard" of medical care.
To establish that accepted standard in court, usually you must have an expert medical witness testify about the standard of care that was violated in your case.
Starting a medical malpractice case
Most health care providers try to provide a high standard of care, but bad things do happen. If you had a medical experience that harmed you, you could be entitled to compensation in a medical malpractice lawsuit. The basic steps to follow to file such a case are:
Determine the statute of limitations for filing a medical malpractice lawsuit in your state. For instance, Colorado's statute of limitations is two years from the injury date and no more than three years from the act.
Prior to filing a lawsuit, you should contact your health care provider to determine what may have gone wrong. Allow the physician or health care provider an opportunity to address the problem.
If talking to the doctor does not resolve the situation, you may contact the state medical board to file a complaint.
Determine if your state requires you to obtain a "certificate of merit" from a medical expert for a malpractice lawsuit to proceed through the legal system. There are 28 states that have such a requirement for a certificate of merit. Conversely, 32 states and Guam have laws about minimum standards for expert medical witnesses who testify in a medical malpractice lawsuit.
Consider settling out of court. These cases are complex and expensive, which is why the vast majority of medical malpractice cases are settled before trial.
Doctors help us on the worst days of our lives, but everybody can make mistakes.
An experienced medical malpractice attorney is extremely beneficial; she can quickly gauge if you have a strong malpractice case, and can help you to get a fair settlement or proceed with a lawsuit.
Who to sue in medical malpractice cases
Medical malpractice legal actions are not limited to doctors. Other health care professionals and entities can be sued as well, such as:
Health care facilities and hospitals
Pharmaceutical and medical device companies
Virtually all hospitals are corporations, and they can be held liable for negligence. Also, they may be held vicariously liable for their employees' negligence. The medical staff at a hospital has doctors, nurses, physician's assistants, nurse practitioners and many others.
When the hospital hires, it must ensure that all applicants have appropriate education, licensing and training. If they fail to do so, the hospital may be held liable under different theories, such as respondeat superior (such as the hospital being responsible for a nurse's misconduct) and the corporate negligence doctrine (such as the hospital being responsible for a private physician's misconduct).
Hospitals also must have enough RNs working on every shift so that quality care can be provided to patients. If the hospital does not do so, it can be sued for patient injuries because of a shortage of nurses.
Another common liability area is when employees fail to follow the orders of the doctor for a patient. On the other hand, if the employee clearly knows that the superior's orders are contraindicated and follows them anyway despite knowing better, that could also lead to liability.
Medical malpractice damages
Damages that you could be entitled to in a medical malpractice lawsuit are:
General damages: loss of enjoyment; physical and mental pain/suffering; loss of future wages
Special damages: medical bills and lost wages in the past.
Punitive damages: damages designed to punish the health care provider for reckless and truly negligent acts. Some states have caps in place that limit punitive damage awards.
How to find the best medical malpractice attorney for your case
It is important to do plenty of research and choose a medical malpractice lawyer with many years of experience in medical negligence legal work. Medical malpractice law is a very specialized area that requires an attorney with a lot of experience. This is because there is plenty of overlap between complicated medical and legal matters. There also are unique procedural matters that come up in medical malpractice cases.
Most attorneys in medical malpractice law practice one of two kinds:
They defend doctors from medical malpractice suits, or