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Does Captain of the Ship Doctrine or Borrowed Servant Doctrine Apply in Your Case?

April 3rd, 2014

You may be asking: “What is the difference between the Captain of the Ship Doctrine and the Borrowed Servant Doctrine?” when it comes to determining who is responsible in a medical malpractice or dental malpractice case.

Captain of the Ship Doctrine

Under the Captain of the Ship Doctrine, the doctor is responsible for everything that happens while he is in charge, whether it was done by people under his control or not.  If another surgeon comes in to help him and makes a mistake, he can still be held responsible, even though the other doctor is a fully-qualified specialist.  This doctrine imposes more responsibility on the doctor than the Borrowed Servant Doctrine; however, a lot of states do not recognize it.

Borrowed Servant Doctrine

Under the Borrowed Servant Doctrine, a doctor is only responsible for the people under his supervision and control.  Under this doctrine, he cannot be held responsible for the actions of another specialist.

Agents

If a doctor or hospital has the authority to control someone else, that person may be his agent or the hospital’s agent, and the doctor or hospital can be held liable for the agent’s actions.  They may be in different locations and have never met.  What matters is the Authority to Control, not actual control.

In a Colorado malpractice case, a ski instructor suffered a broken knee on the slopes.  The municipality where he was injured had an arrangement with a Denver hospital that all accident cases would be taken to the office of a local pediatrician, who would give emergency treatment, and send the patient on to the Denver hospital.  Even though the man asked to be taken to a nearby orthopaedic surgeon, the rescue squad took him to the pediatrician, who manipulated the knee, tearing the ligaments, and causing permanent damage.  When the man sued, the Denver hospital claimed that its contract was with the town, and the hospital had no control over the pediatrician.  But, the court held that the pediatrician was acting as the hospital’s agent, because the hospital had the authority to tell the pediatrician to send it all injured people brought in by the rescue squad.  The jury awarded the plaintiff damages against all three: the pediatrician, the hospital, and the municipality.

In a New York case, a heart specialist engaged a retired doctor to make follow-up visits to his patients in the hospital and at home, as they were convalescing.  The arrangement was that the retired doctor would charge the patients directly for his services and could be completely independent.  The retired doctor missed signs of a recurring heart attack in an elderly lady and she died.  The heart specialist claimed that he was not responsible for the doctor, who was an independent physician.  But, the court held that the retired doctor was acting as the heart specialist’s agent, because the specialist had the authority to tell him how to treat his patients.

It can be difficult to determine who exactly was at fault in your client’s medical malpractice case.  JD.MD can help you.  Contact us today at 800-225-5363 for an initial case evaluation or a medical expert’s opinion.

Who Do You Sue for Medical Malpractice?

February 18th, 2014

Now that you have written your client’s medical malpractice complaint, and given it serious thought, it may seem that all the doctors, as well as some of the hospital employees, were responsible for your injuries.  You do not want to let a guilty party escape, so why not sue all of them?  It does not work that way.  It is rare for more than one or two doctors at most to be responsible for what happened.  Secondly, a “shotgun” approach can be expensive and risky when it comes to a medical malpractice claim.  It can cause you to lose your meritorious case against the responsible party.  Each doctor is responsible for his own acts, and he may be responsible for the acts of others in the following situations:

Employees

An employer is responsible for the acts of his employees, while they are acting in the capacity of their employment.  The hospital is responsible if a nurse lets a patient fall off a table; however, the hospital may not be responsible if the cafeteria waitress, who was not authorized to touch patients, lets the patient fall in the hospital cafeteria.  That is because she was acting outside the scope of her employment.

The Borrowed Servant

When employees of one person work for someone else, who supervises them or tells them what to do, the person in control, and not the employer, is responsible for their actions.  It commonly arises in the operating room, where a hospital employee assisting a surgeon may commit medical malpractice.  If the employee was working under the doctor’s supervision and orders, then the hospital is not liable for the actions of the borrowed servant, but the doctor is.  This also comes up in cases where a nurse, technician, or some other hospital employee is working under a doctor’s orders, and a patient is injured.

A Minnesota woman was admitted to the hospital ICU with a heart attack.   One of the nurses had trouble reading the doctor’s handwritten orders for medication.  Instead of checking with the doctor, she gave what she thought the doctor ordered, which proved to be wrong and killed the patient.  When the family sued the hospital, the court ruled that the nurse was acting directly under the doctor’s written orders.  Since they were carelessly written and confusing, the doctor was liable.  The hospital was not involved and was cleared.

The Captain of the Ship

If the doctor was in charge of other people, who were not his employees and did things wrong, you may be able to hold the doctor responsible, even if he was not personally present, just as the captain of a ship is ultimately responsible for everything that happens aboard his ship.  For example, a surgeon is in absolute control in the operating room.  He must be obeyed instantly, and without question, by everyone else in the room.  He is ultimately responsible for everything that happens.  If an orderly hooks up the electric cautery wrong, and it burns the patient, the surgeon may be responsible, even though he may not have seen the orderly do it.

It can be difficult to determine who exactly was at fault in your client’s medical malpractice case.  Contact JD.MD, Inc., today at 800-225-5363 for an initial case evaluation or a medical expert’s opinion.

Was Malpractice the Cause of the Injury?

January 21st, 2014

Once you have identified the person responsible for an injury, you need to decide whether their actions actually caused your client’s injury.  This is called Proximate Cause; a vague term that means the chain of events by which the act of medical malpractice or dental malpractice caused injury or damages.

Malpractice can be Obvious or Remote

Some cases of malpractice can be obvious, such as a patient bleeding to death because a surgeon failed to tie off an artery during surgery.  Or, it can be remote, such as an Ohio case in which a surgeon botched an operation on a girl’s face.  The surgery had to be re-done, resulting in scarring.  The girl sued the surgeon, not because of her scarring and disfigurement, but because it caused her father, who was mentally unstable, to commit suicide.  Sound far-fetched?  It was, but the girl succeeded in winning the case.

Hospital Malpractice was a Foreseeable Risk and a Proximate Cause

The most far-out example they teach in law school is the case of the man who was hit by a car and taken to a hospital ER, where he was injured as a result of a doctor’s malpractice.  Since the accident occurred in a state that limits the amount a plaintiff can receive from a hospital for malpractice, and the driver who hit him was insured, the plaintiff sued the driver for all his injuries; those resulting from the doctor’s malpractice as well as from the crash.

Sound far-fetched?  How can you hold the driver of a car responsible for what a doctor did in the hospital ER?  The court ruled that the plaintiff could collect, because hospital malpractice was a foreseeable risk and was the result of the accident, which caused the plaintiff to be taken there.  There was proximate cause.

A Bad Result does not always mean Malpractice Occurred

Just because something went wrong, or your client had a bad result, does not always mean the doctor committed medical malpractice or dental malpractice.  Babies are born with birth defects, and even the best-planned medical treatment can produce bad results.  As the Supreme Court of the State of Washington put it: “A physician does not undertake to cure his patient, nor insure that treatment will be successful, and neither does failure to perfect a cure evidence of want of proper care or skill.”  A New Hampshire man sued his surgeon, because at the end of open-heart surgery, an air bubble from the aorta went to his brain and left the patient paralyzed.  He lost.  The court ruled that open-heart surgery is a high-risk undertaking, which it is, and the air bubble was a normal and usual hazard.

Find Out if You Have a Malpractice Case

Every day, lawyers start medical malpractice or dental malpractice lawsuits, because their clients have suffered injuries, only to find out later they do not have a case.  Time and money have been spent for nothing, because the doctor did not commit malpractice, or malpractice did not cause the bad result.

The Rule Is: In every successful malpractice action, there is some identifiable occurrence that was probably malpractice and probably the proximate cause of the injury.  Establishing a convincing chain of proximate cause is a job for an experienced lawyer and one reason why plaintiffs should not prosecute a malpractice case without one.

Thousands of patients suffer due to medical and dental malpractice and do not get the compensation they deserve.  If you are a victim of malpractice, or your client is a victim of malpractice, contact JD.MD, Inc., today at 800-225-5363.  We can provide you with an initial case evaluation or an expert’s opinion.

When is Abandonment by a Doctor Justified?

December 11th, 2013

Just because a physician or dentist agrees to take you on as his patient does not mean that he is stuck with you forever.  You have to be a good patient.  If you do not follow the doctor’s orders, or miss appointments, or do not pay your bill, or are abusive, or if the doctor retires or decides he does not want to continue treating you, for any reason whatsoever, all he has to do is give you fair warning. This warning will come usually by letter, saying he will not treat you anymore after a certain date.

A Doctor Can Legitimately Drop You as a Patient

A doctor can legitimately drop you as a patient, against your will, at any time and for any number of reasons.  Failure to pay your bill, his belief that you should be treated by a doctor in another specialty, a personality conflict, or he is going on a long vacation, are only a few valid reasons your doctor may drop you.  However, there are some requirements any doctor must adhere to if they wish to drop you as a patient:

No Longer Need Your Doctor’s Care

A doctor can choose to release you as a patient, if you no longer need his care.  A neurosurgeon decide there is nothing more he can do for you and turn your case over to a physical therapist.  You cannot compel a doctor to treat you against his professional judgment.

Consent to Termination of the Doctor’s Services

You may also consent to termination of the doctor’s services.  The most common way this happens when a patient goes to another doctor.  The act of consulting someone else releases the first doctor from future obligations, but it does not relieve him of responsibility for what he already did.

Adequate Notice to Find Another Doctor

He gives you adequate notice so you can find another doctor.  A doctor will usually recommend another doctor or hospital who will accept you as a patient, but he does not have to.  Most doctors do not want to prejudice their professional relationships by unloading deadbeats or unpleasant patients onto their colleagues.  And, the doctor recommended does not have to be as qualified as the doctor who is dropping you.  It is not your doctor’s fault if he is the only neurosurgeon in town, and you have to travel to another town to find another neurosurgeon.  That is not his problem.  The law requires him to give you adequate warning so you can look for a replacement doctor.

The Rule Is: You cannot accuse a doctor of abandonment, if he gives you fair warning, and a substitute doctor is available.

Thousands of patients suffer, due to medical and dental malpractice, and do not get the compensation they deserve.  If you are a victim of malpractice, or your client is a victim of malpractice, contact JD.MD, Inc., today at 800-225-5363.  We can provide you with an initial case evaluation or an expert’s opinion.

Other Types of Abandonment by a Doctor

November 5th, 2013

Another type of abandonment that most people are not aware of is when a doctor turns over an important part of your care to someone who is less qualified.  In a Michigan case, an anesthesiologist told a patient that he would give her anesthesia during her surgery.  He turned her care over to a nurse anesthetist as soon as the patient was asleep.  The nurse anesthetist let the tube slip out of the patient’s trachea, causing severe hypoxia (lack of oxygen), cardiac arrest, and death.  The patient’s family sued the anesthesiologist for abandonment and won.  It was malpractice for the anesthesiologist to have turned the patient’s care over to the nurse anesthetist, who was less qualified, without informing the patient before surgery and obtaining her consent.

Residents do All or Part of the Surgery

Today, many hospitals train doctors, called residents, to become specialists. It is common for surgeons to let residents do all, or part, of the surgeries on the surgeon’s private patients, under the surgeon’s supervision.  Some academic medical centers require surgeons to let residents do all the surgery, even on the surgeon’s private patients.  Even so, it is not uncommon for surgeons to charge patients for the surgery and not tell them about the switch or who actually performed the surgery.

Medical Treatment and Surgery as a Non-Assignable Contract

An ophthalmologist admitted a patient to a New York City hospital for delicate eye surgery.  The hospital’s rules required the ophthalmologist to let the resident in Ophthalmology perform the surgery.  After surgery, the resident told the patient that he was the one who had performed the surgery, and the patient sued the ophthalmologist.  Why?  When a doctor undertakes to treat you as his patient, it is called a Non-Assignable Contract.  The doctor has to do it himself and cannot turn your treatment over to someone else without your consent.  Medical treatment, and especially surgery, fits the description of a Non-Assignable Contract.  When you hire a doctor, you are paying for that doctor’s special skills, and you do not want another doctor working on you, especially if you are under anesthesia and if it is a doctor you have never heard of.  If your doctor lets someone else work on you, without your knowledge and consent, your doctor is liable for any bad results. Even if the person who performed the surgery did not actually commit malpractice, because it is reasonable to suppose you would not have gotten the bad result, had your doctor had lived up to his obligation.  Even if the results are good, your doctor has still breached his contract with you.  If you had wanted to be treated by a resident, you would have saved your money and gone to the medical center’s clinic.

The Rule Is: Once a physician or dentist accepts you as his patient, he has to take care of you until you are cured, or turn your treatment over to another qualified doctor with your knowledge and consent, or he has to give you adequate notice that he is dropping you as a patient.

Thousands of patients suffer, due to medical and dental malpractice, and do not get the compensation they deserve.  If you are a victim of malpractice, or your client is a victim of malpractice, contact JD.MD, Inc., today at 800-225-5363.  We can provide you with an initial case evaluation or an expert’s opinion.

Exceptions to Requirements for a Doctor Patient Relationship

June 13th, 2013

Did you know that a doctor does not have to accept you as a patient? Just because you ask a doctor’s opinion, or go to his office, does not make you a patient. They have to accept you, either formally or by doing something, like giving advice or prescribing treatment.

You Cannot Demand a Doctor to Treat You When and Where You Wish.

If the doctor has office hours in the morning, they do not have to see you in the afternoon at your convenience. If the doctor tells you to go to a certain hospital, but you do not go, because you would rather be in a hospital of your choice, and something happens, the doctor is not responsible. You can suggest another hospital that you would prefer to be admitted to, but if the doctor does not comply, you can ask him to refer you to another doctor.

Abandonment is Reverse Reliance

When a doctor does not treat you when you expect him to, terminates your medical or dental care, or drops you as a patient, it is called reverse reliance. This can also occur while you still need postop care or when the doctor walks out without warning and refuses to give you another appointment.

Other Examples of Abandonment

Like the doctor patient relationship, there are other ways a doctor can abandon a patient, which might not occur to you. Suppose you are being treated by a doctor, who goes away for vacation and does not arrange for another doctor to care for his patients. Something goes wrong, and you cannot contact him. Is he liable? Yes. Doctors must make reasonable arrangements for the care of their patients when they are not available. They can do this by having another doctor on call, or referring their patients to a hospital ER, as long as an appropriate doctor is available.

This is a common cause of medical and dental malpractice, because doctors cannot have just any doctor take over their duties. For example, an ophthalmologist cannot turn over a complicated eye case to a family doctor. They must arrange for another qualified, eye specialist to cover for them. A lot of malpractice cases arise because a doctor may go away and does not leave anyone covering for them, or have their answering service refer patients to a hospital ER, which may not be adequately staffed. When that happens and something goes wrong, the doctor is liable, and the hospital may also be liable for accepting a patient that its ER was not equipped to treat. The doctor on duty in the ER must call in a qualified specialist, if one is available, or refer the patient to another hospital where the patient can receive appropriate care. The ER doctor is only justified in attempting treatment if there is not a qualified specialist available, and no other hospital is within reasonable distance, considering the patient’s condition.

Thousands of patients suffer due to medical and dental malpractice, and do not get the compensation they deserve. If you are a victim of malpractice, or your client is a victim of malpractice, contact JD.MD, Inc., today at 800-225-5363. We can provide you with an initial case evaluation or an expert’s opinion.

Requirements for a Doctor Patient Relationship

May 15th, 2013

With any doctor patient relationship, there should be mutual respect and trust between the two parties. Support is provided to the patient through open and honest discussion where diagnoses and treatment plans can be made and activated.

Unfortunately, this is not always the case, and many patients find themselves victims of medical or dental malpractice.

The following will help you to better understand a successful doctor patient relationship:

1. A Promise of Care in Return for Consideration

A doctor will take you into his care, then advise and treat you in return for payment or promise of payment, whether you actually pay or not.

2. A Promise of Care Creating Justifiable Reliance

A doctor on a camping trip promised his friend that his chest pain was not serious, and the friend relied on the doctor’s promise, to his detriment – the friend had a heart attack.

However, a promise of care with no consideration or reliance does not create a doctor patient relationship, such as a doctor giving advice at a social function, if you did not pay the doctor or take his advice.

With no doctor patient relationship established, the doctor cannot be responsible for any illness or injuries caused to you, since they were not caused by his advice.

3. The Doctor has to be Acting in his Capacity as a Physician or Dentist

If you express a medical or dental concern to someone who does not hold himself out as a doctor, and you do not know he is a doctor, he is not liable, and you cannot claim to have acted in reliance on his advice.

The Rule Is: If you relied on people to treat your medical or dental condition, because you were led to believe they were qualified professionals, you had the necessary doctor patient relationship, even if you do not know who they were, never saw them, or never paid them any money.

Thousands of patients suffer due to medical and dental malpractice and do not get the compensation they deserve. If you are a victim of malpractice, or your client is a victim of malpractice, contact JD.MD, Inc., today at 800-225-5363. We can provide you with an initial case evaluation or an expert opinion.

Other Ways a Doctor Patient Relationship can be Established

April 30th, 2013

In our previous blog posts, we have been discussing ways in which a doctor patient relationship can be established other than a situation in which a person is treated by a doctor in his office or in the hospital. The following are examples of two other ways this can happen.

Unauthorized Prescriptions

In a Michigan case, a doctor’s wife took some of his prescription forms, forged her husband’s signature, and gave her friends prescriptions for sleeping pills. One lady overdosed and sued the doctor. Was he liable? No, because his wife had ready access to his office, which was in their home, and he had no reason to suspect that she would do such a thing. The doctor’s license to prescribe drugs did not extend to his wife, and she had committed a crime by forging his signature. This woman did not have a case for medical malpractice against the doctor.

Vicarious Liability

Injuries can be caused by nurses, technicians, and other employees of doctors and hospitals. A lab technician may do hundreds of tests a day that are sent in by many doctors. Is the technician liable if he or she makes a mistake and gives a wrong report, which causes a doctor to give the wrong treatment? You know the answer to that one – reliance. How about the owners or operators of the lab, even if they had the best equipment and hired only the most competent people? Absolutely. When a doctor can exercise any control over the actions of another, he has what is known as Vicarious Liability. If people have the authority to act for the doctor, like an x-ray technician taking x-rays while the doctor is not in his office, the doctor is responsible for their actions as the agent, and they may not have any responsibility at all.

Thousands of patients suffer due to medical malpractice and do not get the compensation they deserve. If you are a victim of malpractice, or your client is a victim of malpractice, contact JD.MD, Inc., today at 800-225-5363. We can provide you with an initial case evaluation or an expert’s opinion.

Did You Have a Doctor Patient Relationship?

April 4th, 2013

You cannot sue a doctor who has never treated you or seen you as a patient. You must have a doctor patient relationship. If a doctor treats you in his office or the hospital, you are his patient and can hold him responsible for whatever happens. But, there are other ways in which a doctor patient relationship can be formed.

Partnership Liability

In an Oregon case, a doctor died while being sued for malpractice, and it was found that he had no assets or insurance to satisfy the judgment. Did the plaintiff come away empty handed? No. The doctor who died had practiced in partnership with another doctor. There was no formal arrangement but both had their names on the door, saw each other’s patients, and divided the practice income. Since each partner benefited from the actions of the other, each was liable for the other’s actions. The surviving partner’s insurance paid the claim, even though he had never seen the patient.

Ethical Duty to Warn

A woman in Illinois went to a doctor for an insurance exam, which was paid for by the insurance company. The doctor found a curable breast cancer and reported it to the insurance company but did not tell the woman, who later died of it. The doctor claimed he was working for the insurance company and had no duty to the patient. Right? No. A doctor has a duty to anyone who comes under his professional care, even if only for an examination, regardless of who pays the bill. In this case, the doctor had an ethical and legal duty to warn the patient of her life-threatening condition.

In a California case, a psychiatrist had a homicidal patient, who told the psychiatrist that he intended to kill a certain girl. The psychiatrist never warned the girl or her family, and his patient murdered the girl. The psychiatrist defended his lack of action by saying that he had a duty to protect the confidence of his patient and owed no duty to the girl, whom he did not know. The California court said that a doctor has a duty to protect unsuspecting people from harm that he knows his patient is likely to inflict and upheld a large verdict against the psychiatrist. However, in two other California cases, one in which a girl’s parents sued a psychiatrist, because he did not warn them she might commit suicide and another in which a patient under psychiatric care shot and killed patrons in a diner. The courts said that the psychiatrists only had to warn people who they knew were actually threatened by their patients and not relatives or casual victims, like the diner patrons.

Thousands of patients suffer due to malpractice, and do not get the compensation they deserve. If you are a victim of malpractice, or your client is a victim of malpractice, contact JD.MD, Inc., today at 800-225-5363. We can provide you with an initial case evaluation or an expert’s opinion.

Do You Have a Cause of Action?

March 19th, 2013

Before you file a medical malpractice or dental malpractice lawsuit, you have to find out whether you have a cause of action. Here is your first check-list:

Did You Have a Doctor Patient Relationship?

You cannot sue a doctor for medical malpractice who has never treated you or seen you as a patient. You must have a doctor patient relationship. If a doctor treats you in his office or the hospital, you are his patient and can hold him responsible for whatever happens. But, there are other ways in which a doctor patient relationship can be formed.

Reliance on a Doctor’s Assurance

Two couples were camping in Minnesota. One of the men was a pediatrician. During the night, the other man became sick, and his wife wanted to take him to the hospital. But, the pediatrician checked him over and said he would be better in the morning. Actually, his friend was suffering from a heart attack and was dead in the morning. The widow sued the pediatrician, claiming that her husband could have survived if he had been taken to a hospital. The pediatrician defended himself by saying: “I didn’t treat him. I’m not a heart specialist and didn’t even have a stethoscope with me. I just gave him the best, friendly advice I could under the circumstances.” Was it malpractice? Yes. By holding himself out as a physician, qualified to diagnose and treat the complaints, he had caused his friends to act, or not to act, in reliance on his assurance there was no danger. The pediatrician exercised a controlling influence on their decision.

Reliance on a Doctor’s Advice

You meet a doctor at a party and say: “Doctor, I have this heart (stomach, rheumatic, etc.) condition.” Maybe you are innocently trying to talk to him or maybe you are trying to get free medical advice. No matter. If the doctor says: “I’m sorry, that’s not my specialty” or “Why don’t you come and see me at my office”, there is no doctor patient relationship or cause of action. But, if he gives you advice concerning your problem, and you act on it, and anything goes wrong, he is liable. This is because he held himself out as a physician and caused you to act in reliance on that representation.

Reliance on an Unknown Doctor’s Opinion

In a New Jersey case, a boy twisted his neck in a football game. He went to the hospital, and they took x-rays. The doctor in the ER told him it was a sprain and sent him home. During the night, the boy became permanently paralyzed from the neck down, because the radiologist, who read the x-rays, missed a fracture of the vertebra, which should have been operated on immediately. The radiologist claimed that his only responsibility was to the hospital and the ER doctor, and he had never seen the boy or given him any advice or treatment. Was there a doctor patient relationship in this case? Yes. The radiologist had caused the treating doctor to act in reliance on the radiologist’s reading of the x-rays, and that was the cause of the paralysis. The jury found that the radiologist was the only one responsible and assessed a large award against him. Even if you never consulted a doctor, or never heard of him, he can be held liable if he causes you harm while acting in his capacity as a physician.

Reliance on a Doctor’s Signature

In a New York case, a doctor would leave signed prescription pads with his nurse. If patients came to his office when he was not there, the nurse would call him, and he would tell her how to fill out the prescription form. A signed prescription pad was stolen by a drug dealer, who filled it out and gave it to a teenager. The teenager had the prescription filled, took the medication, and died of an overdose. Was the doctor or the pharmacist liable for the teenager’s death? The doctor was fully responsible, because the pharmacist had acted in reliance on the doctor’s signature, which he knew to be genuine. The doctor was negligent in leaving signed prescription forms where they could be stolen.

Thousands of patients suffer, due to malpractice, and do not get the compensation they deserve. If you are a victim of malpractice, or your client is a victim of malpractice, contact JD.MD, Inc., today at 800-225-5363. We can provide you with an initial case evaluation or an expert’s opinion.

     
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