Archive for May, 2009
Brain Damaged Infants
Everyone sympathizes with injured children and the financial problems of parents who must care for them. It is usually difficult for the doctor to show he did not injure the child. So many things can go wro
ng during pregnancy and delivery, and newborn infants are easily damaged. That is harsh, and infants are born with birth defects from natural causes that have nothing to do with the delivery or the care in the nursery. But, the birth defects that are due to other causes are of different types. When a newborn infant or small child is found to be suffering from a brain hemorrhage, hypoxia (lack of oxygen) to the brain, cerebral palsy, or injuries to the nerve trunks to the arm, the cause is probably a birth injury that could have been avoided.
In a Texas case, a newborn infant suffered a brain hemorrhage which resulted in severe, permanent impairment. The delivery was normal and the APGARs (tests performed by the doctor or nurse right after an infant is born to determine how healthy it is) were normal when it was born. No one could explain it. It was passed off as “one of those accidents that happen.” Then, about three years later, a nurse let it slip that she had dropped the infant on the floor while bathing it. There was no one around, so she put it back in the crib and said nothing. Luckily, the person she talked to was a friend of the child’s mother and relayed the story. When questioned under oath, the nurse admitted the accident, and the child’s parents brought a successful lawsuit against the hospital, which was responsible for the nurse’s actions.
The Rule Is: A brain damaged infant, or child with cerebral palsy, is due to some error or malpractice until proven otherwise.
Another powerful factor in your favor is that the jury wants to help the victims of this tragedy, no matter who was or was not at fault. Society wants to help the victims of this tragedy. There are limited public funds available, and the only way to do so is out of the doctor’s malpractice insurance. It is what is called loss allocation. Like workman’s compensation, it is a legal theory that allows juries to help people who have been severely injured through no fault of their own, without having to decide whether the doctor did something bad or just made an honest error that caused the injury.
Patient Permanently Disabled or in a Coma
When a patient is left permanently disabled and can no longer care for himself or herself, the costs of medical care become astronomical. Juries tend to be sympathetic, if not to the comatose patient, then to the family facing huge medical costs.
In these cases, the jury wants to help out, and the only money available is the doctor’s insurance policy. Public funds or assistance are inadequate. So, juries will bend over backward to find an excuse to give a helping hand. They see their social responsibility as helping the person who has been severely injured, and the family burdened with crushing expenses, rather than trying to split hairs in deciding whether or not the doctor made an error or a cold, impartial balancing of the scales of justice. They believe the easiest way to help with the problem is to have the doctor’s insurance company pick up the expense.
Before you file a malpractice lawsuit, or even consult an attorney, you have to decide what you hope to accomplish. It cannot repair your injuries or make you forget your pain and suffering. It cannot bring the dead back to life or take away the pa
in and bitterness of the crushed hopes you had for your brain damaged child. Usually, it cannot even punish the doctor or the hospital; they are insured. The only thing a lawsuit can do is give you some financial compensation for your injury or loss.
Every day people sue doctors for various reasons that have nothing to do with financial recovery and most of those cases are lost, leaving the people poorer and more disillusioned than before. Here are some of the valid and invalid reasons why people go to court. A medical malpractice case can be lengthy and cost a lot of money. Before you being a lawsuit, you should have some idea whether your case can be won and get you enough money to make it worthwhile.
You have to look at what lawyers call the actuarial value of the case, which is the odds that a jury will find in your favor multiplied by the average award for your type of injury. How much are you likely to get if you win. In the next two articles, we will discuss the common types of malpractice complaints and the strengths and weaknesses of each.
Will you find a case exactly like yours in these articles? Probably not. No two patients are exactly alike and every malpractice is different. Two cases may seem identical, but treatment that would be appropriate in one case could be malpractice in the other. A slight difference in the dosage of a drug may make the difference between like and death.
What you will find in these articles is a discussion of the strengths and weaknesses of difference types of cases that you can apply to your case and get an idea as to your chances of success. But, before you attempt to make any decision regarding your own case, you should all these articles that do not seem to apply to your special problem, so you will know what constitutes good medical care and what is not good medical care. Then, you can apply those principles to your own case and come up with a reliable opinion as to whether you have a valid complaint and what it is likely to be worth.
How to find out if you were the victim of malpractice and how to assert your legitimate rights.
By James Douglas McVean Lake, M.D., J.D.
The author of this article was not engaged in rendering legal advice or assistance. Medic
al Malpractice is not a substitute for competent legal counsel. We assume no responsibility if it is used for that purpose. Only a licensed attorney can give reliable advice concerning a specific case or successfully prosecute a medical malpractice lawsuit.
Although every effort has been made to ensure the accuracy of data cited, we make no warranty against errors, inaccuracies, omissions, or other inconsistencies. All the malpractice cases cited were actual, true life cases. The state locations of some have been changed to protect privacy and confidentiality. Any slights to persons or organizations are unintentional.
PART I – How to find out if you were the victim of malpractice.
Who Can File a Lawsuit
Your aunt, who raised you, has been seriously injured by negligence in a hospital. Her doctor told you there was flagrant malpractice and hinted that something should be done about it. One of the nurses, who took care of your aunt, confirmed that her injuries were the result of neglect, and other patients on the same floor have offered to be your witnesses. Your aunt is too weak and befuddled to file a lawsuit herself, and she has no children or they are far away and could not care less. Can you file a lawsuit on your aunt’s behalf to help her obtain compensation for her injuries?
No, because you do not have what lawyers call standing. You must have a direct interest in the case, which is to say that you must have suffered some physical injury, emotional injury, or financial loss. No matter how bad the malpractice, or how much you love the injured person, you cannot sue unless you were the victim or the legal guardian of a victim. If your aunt is still alive, she can file a lawsuit, or a lawyer can do it for her. If she dies, then either her nearest relative or the administrator of her estate must bring the lawsuit.
The person who files the lawsuit must be someone with a direct interest. For instance, if your aunt lived with you, and you will be burdened with huge nursing and medical expenses as a result of the malpractice, you may also sue on your own behalf. The rule is that the victim must bring the lawsuit if he or she is an adult, alive, and mentally competent. If the victim is a minor, or someone in a permanent coma, the lawsuit can be brought by a parent or a guardian. If the victim has died, it is usually brought by the administrator of the estate, who is appointed by the Court. If there is no administrator, as in the case of an infant, your lawyer will file a petition with the Court to have an administrator appointed to protect the interests of the infant or incompetent person, or the heirs of someone who has died.
Unless you were injured or suffered a financial loss, or the injured was a member of your immediate family or someone legally entrusted to your care, you cannot file lawsuit. Only the injured person, or someone who is legally empowered to act for him, can file a lawsuit. If there is any question, your attorney will decide who is the proper person to bring the lawsuit.
To get back to your aunt, if you are the only available relative but cannot sue, your lawyer may petition the Court to have you appointed as her guardian, so you can make a claim on her behalf.
Some people you might not expect can sometimes file a lawsuit. In general, any person who has been injured, or suffered a loss as a direct result of the malpractice, can sue or join with someone else in suing. For instance, a wife may join her husband in suing if medical malpractice has rendered him impotent and deprived her of his services and companionship. A parent may sue for loss of anticipated support from a child, who has been permanently disabled or killed.
The Rule Is: You have to be (a) the injured person, or (b) someone who can legally act for that person if he or she is dead, insane, or a child, or (c) a person who will suffer some loss or damage as a consequence of the injury to the patient.
One special category is for people who have suffered a severe emotional upset from seeing the person injured. In a Michigan case, a man was severely injured in a car crash and died as a result of malpractice in the hospital ER. His fiancée, who was in the car but not injured, was in the ER and watched as he choked to death. Understandably, she became hysterical and went into a deep depression, during which she attempted suicide and required extensive psychiatric care. She could not bring a lawsuit for her fiancé’s death, because they were not married, but she sued and won an award for her own emotional trauma.
The requirements for filing a lawsuit for emotional distress are different in each state. In some states you have to be a close relative and have actually witnessed the malpractice. In other states, just the knowledge that your relative was injured is enough. Some states may require proof of a serious, emotional upset, such as psychiatric treatment or confinement in a hospital. Some states may accept your testimony that you were upset. The type of malpractice also has an effect. If the doctor’s conduct was outrageous enough to offend the average juror, they may not require such proof at all.
The rule Is: Do not rely on your unsupported word that you were deeply disturbed by the doctor’s malpractice. If you are going to claim emotional damages, you will need to consult a psychiatrist or psychologist to testify that your emotional upset was genuine and serious enough to require treatment best online casinos au reviews and warrant some compensation.