What every Consumer should know about the Law of Medical Malpractice

Medical Malpractice – An Overview
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 could include an error in a diagnosis, treatment or illness management. If such negligence results in injury to a patient, a case could arise against the doctor if his or her actions deviated from generally accepted standards of practice; against the hospital for improper care, such as problems with medications, sanitation or nursing care; or against local, state or federal agencies that operate hospital facilities.

Medical malpractice laws are designed to protect patients’ rights to pursue compensation if they are injured as the result of negligence. However, malpractice suits are often complex and costly to win. While theoretically, you can seek compensation for any injury caused by negligence, regardless of its seriousness, time and money make it unrealistic to sue for an injury that is minor or heals quickly. Therefore, if you believe you have a medical malpractice claim, it is important to consult with an attorney. Maggiano, DiGirolamo & Lizzi can help you determine whether your claim is worth pursuing.

Theories of Liability in Malpractice Cases
Negligence. Most medical malpractice cases proceed under the theory that a medical professional was negligent in treating the patient. To establish medical negligence, an injured patient, the plaintiff, must prove:

The existence of a duty owed by the health care professional to the plaintiff (for example, a doctor/patient relationship)

The applicable standard of care, and the health care professional’s deviation from that standard, which is deemed a breach of the duty owed to the patient A causal connection between the health care professional’s deviation from the standard of care and the patient’s injury

Injury or harm to the patient
One of the most important aspects of a medical malpractice action is establishing the standard of care to be applied to the health care professional. To find a medical professional legally at fault, it must be shown that his or her conduct fell below a generally accepted standard of medical care. To establish the standard to be applied, the plaintiff must present expert testimony not only as to the standard of care applicable, but that also establishes that the defendant failed to meet the standard. In cases where the defendant’s violation of a standard of medical care is so apparent as to be comprehensible to the average person, expert testimony may not be required. Another element of medical malpractice actions, causation, is sometimes difficult to establish. Specifically, the plaintiff must show that his or her health care provider’s deviation from the applicable standard of care resulted in his or her injury. This is challenging because sometimes there may be other factors that contributed to the plaintiff’s eventual injury.

Informed Consent
In many situations, the failure to obtain a patient’s “informed consent” relative to a procedure or treatment is a form of medical negligence, and may even give rise to a cause of action for battery. Although the specific definition of informed consent may vary from state to state, it means essentially that a physician (or other medical provider) must inform the 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 consent to proceed.

Breach of Contract or Warranty
Although doctors very rarely promise specific results from procedures or treatments, in some cases they do, and the failure to produce the promised results may give rise to an action for breach of contract or breach of warranty. For example, a plastic surgeon may promise a patient a certain result, which result may be judged more easily than other types of medical results, simply by viewing the patient. Similarly, if a patient is not satisfied with the outcome of a procedure and the physician had guaranteed or warranted a certain result, the patient may attempt to recover under a theory of breach of warranty.

Legislation Affecting Malpractice Actions
Due to the power and resources of the health care industry, 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. In addition, barring extraordinary circumstances that affect the case, state laws provide set periods, called statutes of limitations, within which a plaintiff must file a malpractice action in court.

Certificate of Merit
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.

Potential Defendants
Medical malpractice can be committed by several types of health care professionals, including doctors, surgeons, nurses, technicians and other hospital workers. 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 negligent act or omission occurred. This doctrine is important to plaintiffs in medical malpractice cases, because it helps ensure there will be a financially responsible party to compensate an injured plaintiff.

Conclusion
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 at Maggiano, DiGirolamo & Lizzi, P.C. as soon as possible to discuss the facts of your case and receive a professional evaluation of your situation.

Proving Your Case – Causation
To establish a case for medical malpractice, the plaintiff must prove that the defendant had a duty to the plaintiff, that the defendant failed to meet the standard of care owed to the plaintiff, that the mistake actually caused the plaintiff’s injury and that the doctor or other medical professional’s negligence damaged the plaintiff. Proof of causation can be a difficult issue in a medical malpractice case. For one thing, the injuries generally involved in medical malpractice cases require specific medical training to understand, and the normal plaintiff may not know the cause of such injuries. It is important to contact an experienced medical malpractice attorney at Maggiano, DiGirolamo & Lizzi, P.C. who can evaluate your situation and work with experts to prove causation.

The burden is on the plaintiff to establish, by a preponderance of the evidence, that the defendant was the cause of the plaintiff’s injury. This simply means that the plaintiff must prove that it was more likely than not that the defendant’s actions caused the plaintiff’s injury. This may be especially hard to do in cases where the plaintiff alleges that the injury is one that might ordinarily be the expected result of the original disease or condition; that is, where the plaintiff is basically alleging a failure to cure. There are two types of causation. actual cause (cause-in-fact) and proximate cause. The defendant’s actions are the cause-in-fact of the plaintiff’s injury if the plaintiff would not have been injured but for the defendant’s wrongful act, or if the plaintiff’s injury was a foreseeable result of the defendant’s action. Proximate cause deals with the issue of whether, considering all other relevant factors, the defendant’s actions were the legal cause of the plaintiff’s injury. The defendant will often try to demonstrate that there are other causes for the plaintiff’s injury. One such possible cause is the plaintiff’s pre-existing condition, that is, the plaintiff’s original illness or injury for which he or she sought help from the doctor. In addition, the defendant may try to show that the plaintiff was negligent in some way, and that this negligence, and not the health care provider’s, actually caused the plaintiff’s injury. The health care provider may also argue that even if he or she deviated from acceptable medical procedures, such a deviation would not have altered the outcome for the plaintiff. Further, the health care provider might argue that there was a superseding cause or intervening cause that serves to shift liability to another third party who caused a new, independent and unforeseen harm.

Expert Testimony
Because of the complexity of the subject matter of medical malpractice cases, it is generally held that the plaintiff must rely on expert testimony to support causation. Most medical issues are not within the common knowledge of the plaintiff or the jury, so an expert’s testimony can help the jury understand the applicable standard of care, whether the defendant provider failed to meet that standard, causation and damages. Medical malpractice cases often come down to a battle of the experts between the plaintiff’s expert and the defendant’s expert, who each offer opinions on the plaintiff’s underlying condition, defendant’s actions, whether they were in line with the standard of care, and whether the defendant caused the plaintiff’s injuries. In some cases, such as where the result of the medical treatment or surgery is so obvious that a layperson can understand it, an expert may not be necessary.

Res Ipsa Loquitur
If a patient is injured as the result of a medical procedure, but does not know exactly what caused his or her injury, but it is an injury that would not have occurred without negligence by a health care provider, the plaintiff might be able to invoke the legal doctrine known as res ipsa loquitur. This is a Latin phrase which means the thing speaks for itself, and implies that the plaintiff needs to show only that a particular result occurred, and it would not have happened but for the defendant’s negligence. A classic example of the type of case in which res ipsa loquitur arises is one in which a medical instrument is left inside a person following surgery. Clearly, an instrument would not be left inside a person in the absence of someone’s negligence.

To successfully invoke res ipsa loquitur, the plaintiff must show that:

There is no evidence of the actual cause of the injury

The injury is not the kind that ordinarily occurs in the absence of negligence

The plaintiff was not responsible for his or her own injury

The defendant, or its employees or agents, had exclusive control over the instrumentality that caused the injury

The injury could not have been caused by any instrumentality other than that over which the defendant had control

Conclusion
Issues of causation can be some of the most difficult issues to prove in a medical malpractice case. Because of this, expert testimony is often required. An experienced medical malpractice lawyer at Maggiano, DiGirolamo & Lizzi, P.C. can gather the necessary documentation and medical records and work with experts to build a case for malpractice.

Responsible Parties in Medical Malpractice Actions
Medical malpractice liability is not limited to medical doctors. It also can extend to nurses, dentists, osteopaths, health care facilities and others providing health care services, such as nursing homes. If you believe that you have been the victim of malpractice by any health care provider, do not delay in contacting an experienced medical malpractice attorney at Maggiano, DiGirolamo & Lizzi, P.C.

Individual Providers – Doctors, Nurses and Other Health Care Professionals In addition to doctors and surgeons, a variety of other health care professionals, including dentists, psychiatrists, nurses, nurse practitioners, physician’s assistants, chiropractors and alternative medicine providers, can be held liable for medical malpractice. As with a case against a doctor, to be successful in a medical malpractice case against another health care professional, the plaintiff must prove that the provider owed a duty to the plaintiff, that the provider breached that duty by deviating from the acceptable standard of care, that the provider’s breach caused the plaintiff harm and that the plaintiff was injured.

Hospitals
In the context of medical malpractice actions, hospitals can be held directly liable for their own negligence, and can also be held “vicariously” liable for the negligence of their employees. Vicarious liability means a party is held responsible not for its own negligence, but rather for the negligence of another.

Direct Hospital Negligence
In hiring its medical staff, a hospital must make reasonable inquiries into an applicant’s education, training and licensing. If a hospital fails to make reasonable inquiries regarding a member of its medical staff, it might be held liable under the “corporate negligence” doctrine for negligent supervision or retention if the staff member’s negligent care injures a patient. A hospital might be held liable for its own negligence where, for example, it fails to investigate the credentials of an attending physician before granting him or her privileges at the hospital or where it allows a physician whom it knew, or should have known, was incompetent to treat patients at the hospital.

Hospitals are also required to ensure that there is a sufficient number of registered nurses on duty at all times to maintain quality patient care. A hospital that fails to do so may be held liable for injuries to patients resulting from a nursing shortage. Another area of potential liability arises when a hospital’s employees fail to follow the orders of a patient’s private attending physician. Conversely, if a hospital employee finds a private physician’s treatment plan to be clearly contraindicated, but fails to make a reasonable inquiry of the physician as to the treatment plan, the hospital could also be found liable.

Finally, hospitals may be held liable for failing to protect patients from harm, failing to adequately perform clinical tests, neglecting to keep accurate medical records and not properly admitting and discharging patients. In the area of admissions, hospitals are generally required to treat seriously injured or ill people on an emergency basis, and the refusal to do so may result in hospital liability. Additionally, federal and state statutes prohibit hospitals from refusing to treat or admit people based on their race, color, religion or national origin, or on their inability to pay for treatment.

Vicarious Liability
When a hospital employee’s malpractice injures a patient, the hospital itself may be held vicariously liable under the legal doctrine of “respondeat superior.” Under this doctrine, 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 negligent act or omission occurred. This doctrine is 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, health care providers, such as physicians, are considered independent contractors rather than hospital employees, and the doctrine of “respondeat superior” will not apply. What this means is, if a doctor or other health care professional is an independent contractor, and commits malpractice while treating a patient in a hospital, the hospital cannot be held liable for the doctor’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.

HMOs
A number of courts have considered the question of whether health maintenance organizations (HMOs) can be held liable for the negligence of a member physician. Essentially, medical malpractice claims against HMOs proceed under the same theories as cases against hospitals. The first theory is direct negligence – that the HMO is liable for negligent hiring, supervision or retention of its doctors. The second theory is based on vicarious liability, agency or respondeat superior. It is important to note that many malpractice claims against HMOs may be subject to pre-emption by state or federal law. These pre-emption provisions are a way to protect HMOs chartered under state law from huge jury awards.

Conclusion
If you or someone you love has been injured as a result of negligent conduct by a health care provider, an experienced medical malpractice attorney can see you through the complicated legal maze of a medical malpractice lawsuit. Contact a medical malpractice attorney at Maggiano, DiGirolamo & Lizzi, P.C., today.

Damages in Medical Malpractice Cases
To establish a case for medical malpractice, the plaintiff must prove that the defendant had a duty to the plaintiff, the defendant failed to meet the appropriate standard of care, that the defendant’s actions actually caused the plaintiff’s injury and that the doctor or other medical professional’s negligence damaged the plaintiff. Damages are a critical element of a medical malpractice case, and the plaintiff cannot recover damages for injuries that did not result from the doctor’s conduct, and so the plaintiff must establish a causal connection or link between the plaintiff’s injury and the doctor’s negligence. Generally, there are two types of damages available to a plaintiff in a medical malpractice case: compensatory damages and punitive damages. An experienced medical malpractice attorney at Maggiano, DiGirolamo & Lizzi, P.C. can evaluate your situation, determine whether you have a claim and put together a case for damages.

Compensatory Damages
Compensatory damages are intended to compensate the plaintiff for the actual injury and harm that he or she has suffered. In other words, compensatory damages aim to make the plaintiff “whole.” Compensatory damages can be divided into two categories, damages for economic loss (actual damages) and non-economic loss (general damages). Economic loss includes out-of-pocket expenses, such as medical and hospital bills, the cost of prescription drugs, nursing assistance, physical therapy and medical equipment such as a wheelchair. Lost wages because of missed work while you were recovering are also recoverable.

Non-economic losses are harder to quantify in terms of monetary value and include pain and suffering, inconvenience, mental anguish, loss of consortium or companionship, loss of the ability to work, physical impairment or disability and disfigurement. It may also be possible for the plaintiff to recover damages for future lost wages and future medical treatment or therapy. A plaintiff may also be able to recover damages for the loss of the chance to obtain a better outcome in the surgery or medical procedure because of the defendant’s negligence in treating the plaintiff.

If the plaintiff cannot establish actual damages, he or she may still be entitled to nominal damages. Nominal damages are typically very small amounts ($1) awarded in cases where the plaintiff has not sustained any actual loss or harm as recognition that a legal injury was sustained.

Punitive Damages
If the evidence shows that the doctor, nurse or other health care provider acted willfully, wantonly, maliciously, fraudulently, with bad faith or with a conscious indifference to the potential consequences, the plaintiff may be entitled to punitive or exemplary damages. Punitive damages serve to punish the health care provider for his or her wrongdoing, in an effort to prevent similar future misconduct. Negligence alone is not sufficient to impose punitive damages. Some states allow exemplary damages, which are designed not to punish, but rather to compensate the plaintiff where the injury is seen as more severe because of aggravating circumstances.

There are a number of situations in which it may be possible for a plaintiff to recover punitive damages from an individual health care provider. Courts have awarded punitive damages in the following situations:

Failure of surgeon to obtain the patient’s informed consent to the surgery

Failure to properly perform surgery or provide proper follow-up care after surgery

Failure to perform sufficient tests to ascertain the health of a child

Misrepresentation or fraud regarding surgery

Altering medical records

Failure to properly administer drugs or anesthesia

Courts have considered a variety of factors, which have been found to support a punitive damages award. Such factors include. performing non-emergency surgery after a long day, performing a particular procedure at a significantly higher than normal rate, performing a procedure when a more appropriate procedure, which could not be done by the defendant, is indicated, overcharging for services and continuing to use a particular treatment when it has had bad results in the past.

A plaintiff may also be able to recover punitive damages from an institutional health care provider such as a hospital or clinic depending on the circumstances. Courts have allowed punitive damages where a hospital or clinic is liable for the conduct of one of its employees; a hospital or other employer ratified or approved of the employee’s conduct, which conduct warranted an award of punitive damages; a health care institution failed to ensure the competency of its employees or supervise personnel; a hospital failed to provide adequate facilities, equipment or supplies; and an institution refused to disclose medical records.

Tort Reform/Caps on Punitive Damages
In an effort to combat the increasing costs of medical malpractice insurance, many states have enacted laws that place a limit or cap on the amount of damages that can be recovered by a plaintiff in a medical malpractice case. These state statutes differ in the specific limit that will apply and the types of damages that are limited. Some states limit only non-economic damages in medical malpractice actions; others place no limit on medical and related expenses, but limit all the other damages. Still other states have statutes that limit the total damages recoverable in medical malpractice actions.

Some states have also created patient compensation funds to serve as a source of compensation for plaintiffs beyond what they may receive from a health care provider after a lawsuit. Generally, a patient compensation fund will have a system in which there is a statutory cap on damages that the plaintiff can recover from a health care provider, and a higher cap on the total amount of damages the plaintiff can recover, with the fund responsible for the difference.

Conclusion
Depending on your situation, you may be able to recover punitive damages as well as compensatory damages in your medical malpractice case. An experienced medical malpractice attorney at Maggiano, DiGirolamo & Lizzi, P.C. can evaluate your situation and put together a case for damages

Frequently Asked Questions about Medical Malpractice

Q. What is medical malpractice?
A. Medical malpractice is negligence committed by a professional health care provider, such as a doctor, nurse, dentist, technician, hospital worker or hospital, whose treatment of a patient departs from a standard of care met by those with similar training and experience, resulting in harm to a patient.

Q. Does someone who is not satisfied with the results of his or her surgery have a malpractice case?
A. 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.

Q. What should I do if a think I have a medical malpractice claim?
A. 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.

Q. What is “informed consent?”
A. 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 which a reasonable patient would want to know and consider before electing to undergo a medical procedure or other course of treatment. The physician must obtain the patient’s written consent to proceed only after disclosing those risks.

Q. Do I have a case against a doctor who prescribed me a drug for treatment, but failed to tell me it was part of an experimental program?
A. 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 or her failure to obtain your “informed consent” relative to this treatment.

Q. If the consent form I signed prior to a procedure is considered valid, can I recover any damages in a malpractice action against my doctor?
A. 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 or 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.

Q. How does a jury determine if a doctor’s actions were negligent?
A. A jury will consider the testimony of experts, usually other doctors, who will testify whether they believe your physician’s actions followed standard medical practices or fell below the accepted standard of care. The jury may also consider what are called Learned Treatises, or recognized literature and peer reviewed studies as well as medical association standards and guidelines if applicable and received into evidence.

Q. What is a “Certificate of Merit?”
A. 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.

2008-05-01T17:17:02+00:00