Medical Malpractice

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hen a patient is harmed or dies due to the actions of a doctor of other medical professional, it may be a case of Medical Malpractice. It is of great concern and misfortune when a medical practitioner fails to competently perform their medical duties.

The law firm of Goldfinch Winslow, LLC can provide sound solutions and reliable guidance for all facets of medical malpractice litigation.

There are various considerations to make note of in order to seek a medical malpractice action. These can include proof, statutes of limitations, and rules of notification to the doctor. These rules vary from state to state, however there are some general principles that can help in determining if an attorney can assist you.

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There are requirements that need to be met for any medical malpractice suit:

  • Proof that a physician-patient relationship existed.
  • Proof that the medical professional was negligent and a medical expert’s statement of what treatment would have been correct, reasonable, and careful.
  • Evidence that the doctor's negligence caused the injury "more likely than not" and have a medical expert testify that the negligence caused the injury or death.
  • Evidence of specific damages caused from the injury or harm such as: mental anguish, physical pain, disability, added high medical bills, and lost wages.
  • Statute of limitations means that in the majority of states, one must seek a medical malpractice claim between six months and three years, depending on the state. If the lawsuit is not filed in time, it will be dismissed by the court. Some states begin the time period of limitation at the moment the negligence happened, while others begin when the patient should have discovered the injury.
  • Special medical malpractice review panels are required in many states. The patient plaintiff must first submit their claim to a specified malpractice review panel of experts. The panel hears arguments, reviews evidence, reviews the expert testimony, and determines if malpractice did in fact occur. The panel’s decision does not replace an actual medical malpractice lawsuit, and it does not award any damages. The results of the review panel can be shown in court, and courts will often agree to a panel's finding to toss a case out before going to trial if the panel found no evidence of actual medical malpractice.
  • Evidence that the physician or medical professional was provided with notice of the malpractice claim is required in some states. The patient needs to provide a basic description of the claim prior to filing any other documents.
  • Qualified expert testimony is usually required at trials. They are generally persons with knowledge and experience in the particular medical field described in the claim. In rare circumstances expert testimony will not be required, such as when an item was left inside of the patient after a surgery.
  • Be aware that there are limits or caps on damage awards to medical malpractice patients in most states.

Situations that can commonly lead to a medical malpractice claim:

A big percentage of medical malpractice cases are due to delayed diagnosis and misdiagnosis. If a medical professional or doctor misdiagnoses a condition, or altogether fails to diagnose a serious condition for too long – the patient may miss out on important treatments that could have prevented grievous harm or eventual death.

Proving a medical malpractice claim based upon delayed diagnosis and misdiagnosis can be completed through comparison. Show how another doctor of the same skill or practice area made a diagnosis and report their findings. If the reasonably skillful doctor could not reach the same diagnostic error under the same circumstances, then the original treatment doctor could be liable for malpractice.

In the event that a doctor or medical facility treats a patient differently than any other competent doctor would and causes injury then the patient may have cause to seek a medical malpractice claim. It may also be considered malpractice if the treatment is appropriate but it was administered incompetently.

It is the duty of all doctors to provide a means of informed consent to patients. This means that patients are warned about all of the known risks that a course of treatment or a procedure entails. In the case that patient would not have chosen to have the procedure after being informed, the doctor could be liable for medical malpractice if the procedure injured the patient in any way that the doctor should have warned them about – but failed to do so.

While most medical procedures or treatments do involve some risk, and it is the responsibility of the doctor to provide the patient with information, simply having the patient sign a form does not always prove that the patient gave actual informed consent. The risks must also be discussed clearly with the patient and the patient must have the ability comprehend them.

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Risks that must be disclosed are determined by predetermined standards. There are typically two standards implemented: testimonial from other competent doctors and whether there are realistic alternative treatments.

States that use the first standard require the injured patient who is suing the doctor to hire a medical expert to testify that other competent doctors would have informed the patient of this risk. A medical expert would also be hired by the doctor being sued to testify that a competent doctor may not found it necessary to have disclosed the risk to the patient.

States that use the second standard require that courts question whether another normal patient having same medical condition and history as the plaintiff would declined the treatment if the risk was disclosed. Unlike states that use the first standard, a doctor must also inform a patient of realistic alternative treatments, whether the doctor only recommends one treatment or not. Medical expert testimony may not always be required in states that abide by this rule, but when the medical facts are complex, the injured plaintiff may choose to use the opinion of an expert nonetheless.

Informed consent is not required in some situations. In an emergency, often not enough time is available in order to fully describe the risks involved – and the physician needs to intervene fast to save the patient’s life. In this case, the patient cannot sue for the absence of an informed consent whether or not they would have agreed. If a patient is already in distress, so much so that they would refuse the necessary treatment – the doctor may decide to be vague in disclosing the risks. This is in the event that there is possibility of making an already frail patient sicker with stress or fear. The physician must then be able to clearly demonstrate the reason for not providing full disclosure.

A patient can sue a physician based on the lack of informed consent – even if the procedure was successful – if the doctor performed a second procedure after the patient had provided informed consent for the original procedure. However, the patient only has a claim if the second different procedure was absolutely not necessary or was a mistake. This readily applies in situations in which a doctor remedies a serious medical problem that is discovered during the completion of another procedure. In this instance, the patient most likely will not have a claim for lack of informed consent as the additional procedure was highly necessary or life-saving.

For more information about our law practice, or to discuss your legal concerns with an attorney who understands the complex area of medical malpractice, contact our offices today.

Examples of Medical Malpractice