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Medical Malpractice and the Law

Medical malpractice cases can be big news, but these cases run the gamut from minor injuries to permanent injuries to death. What is medical malpractice? It’s a mistake, often called medical negligence, made by a doctor, nurse, or other medical professional that results in a patient’s injury. Doctors and medical facilities maintain malpractice insurance policies to pay for these mistakes, and patients can file lawsuits against the doctor and medical facility or hospital to receive money for the injuries.

The most obvious type of medical malpractice is a mistake made during surgery. This famously happened to comedian and former Saturday Night Live star, Dana Carvey. He had a blocked artery to his heart, but the surgeon ended up operating on the wrong artery. This meant that Carvey had to undergo a second surgery. In this high profile medical malpractice case, Carvey was awarded $7.5 million.

Other surgical mistakes could lead to infection, paralysis, accidentally cutting a vital organ, or leaving a foreign object inside the patient’s body. Surgical mistakes are only one type of medical malpractice, however. These cases can involve any number of mistakes, such as:

Misdiagnosis – A doctor may inaccurately determine that a patient has one condition or disease when it is later discovered that the patient had a different condition or disease. If the real disease goes untreated, it can lead to injury or death. A misdiagnosis may also lead the doctor to prescribe the wrong medications or unnecessary surgery, which can cause injury to the patient.

Delayed diagnosis – In this case, the physician fails to determine that the patient has a serious illness such as cancer or heart disease. Obviously, if the person isn’t treated because the doctor failed to recognize the illness, it could lead to injury or death. A delay can also occur if someone is forced to wait in an emergency room for too long, for example.

Anesthesia Mistakes – Anesthesiologists are responsible for the medication that causes a patient to sleep during a medical procedure. Since people can be sensitive to these medications, it’s the responsibility of the anesthesiologist to review a patient’s medical history to try to ensure that the anesthesia medication won’t cause problems. If it does, the anesthesiologist and medical facility may be sued for the patient’s injuries.

Prescriptions – Before prescribing medications, a doctor needs to know all other medications that a patient may be taking because it can be dangerous to mix them. It can also be dangerous to take some medications if the patient has a specific disease. For example, a particular heart medication may be dangerous for someone with Parkinson’s Disease.

Childbirth – If medical personnel make mistakes during childbirth, the result can be death or permanent disabilities, such as brain damage in the baby.

Of course, these are just a few of the more common forms of medical malpractice. Dental malpractice and all sorts of other possibilities exist in the medical field.

What to Do If You Have Been Injured by Medical Malpractice

If you believe that you or a loved one has been injured by medical malpractice, the first thing you need to do is consult a lawyer. These kinds of cases can be very complicated, so it’s absolutely necessary to have an experienced attorney working on your behalf.

Why are these cases so complicated? It can often be difficult to prove that the medical professionals acted negligently. All medical records have to be carefully examined to determine if malpractice really did take place. Did the doctor not perform his or her duties up to the standards expected of the profession? This can be likened to a driver who runs a red light or doesn’t stop for a stop light.

It is also important to note that each state has what is called a “statute of limitations” on medical malpractice claims. So, you need to act quickly if you believe malpractice has taken place because after a period of time, you will no longer be allowed to file a lawsuit.

Most lawyers who work on medical malpractice cases don’t require you to pay them a fee up front. They work on what is called a “contingency” basis, which means that they take a percentage of the total settlement you receive when the case is finished. The lawyer takes a certain risk here, so it’s to the lawyer’s advantage to only take cases that are likely to lead to a settlement that will be higher than the costs of the lawsuit. This means, first and foremost, that there must be what is called “causation.”

Causation means that it must be provable that the injury occurred as a direct result of the medical professional’s negligence. Most of the lawyers who handle medical malpractice cases have medical investigators to help them develop the evidence to prove that you or your loved one was indeed a victim of malpractice.

It’s also to the lawyer’s advantage to try to get you as much money as possible and to try to keep your case from going to court. This means that the lawyer will negotiate on your behalf with the lawyer for the malpractice insurance company, working to obtain a settlement for you. Experienced medical malpractice attorneys know what settlement amounts are reasonable to expect for different kinds of cases.

How long do medical malpractice lawsuits take to settle? This varies greatly and depends on a number of factors. The more complex the issues involved, of course, the longer it will probably take before a settlement will be reached.

The most important reason for filing a medical malpractice lawsuit is to receive the money you need for medical care related to the injury. If the injury is permanent, such as in the case of cerebral palsy or paralysis, the costs can be enormous and will last a lifetime. The injured person or the caretaker of the injured person may not be able to work for a period of time, so there may also be a loss of income – before the settlement and perhaps also in the future.

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.

If the plaintiff and the defendant’s medical malpractice insurance company cannot come to an agreeable sum for the settlement, the case might go to trial. In that instance, a judge or a jury would decide the amount of money, if any, that the plaintiff/patient would be awarded for his or her injuries.