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Medical & Dental Malpractice – Should You Leave Out Defendants?

What if you like one of the doctors and do not want to sue him, or your relative works for the hospital where you were a patient and you do not want to cause trouble by suing the hospital?  Can you leave them out, even though they were partly responsible?  Can you pick out one doctor, whom you dislike, sue him, and leave everybody else alone?

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What if You or Your Lawyer Make a Mistake and Sue the Wrong Doctor?

It can happen.  If your case was complicated, or your treatment involved several doctors, it can be confusing and will require the assistance of medical experts or dental experts to sort it out and identify the real culprits.  (more…)

Why not sue everybody in a medical or dental malpractice case?  There are several reasons, to list just a few:

You do not want to sue innocent people.  These are called harassment suits.  They are not ethical, and they usually fail.  In some states, they can also expose you to a countersuit by the doctor or an assessment of costs by the court for bringing a frivolous lawsuit.  More importantly, if you go into court suing a number of people, especially if some of them are obviously innocent, you will prejudice the jury against you and appear to be a quarrelsome person, who does not deserve anything.

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Can Medical Professionals Be Sued Individually for Medical Malpractice?

Some nurses (CRNA’s) are trained and licensed to give anesthesia.  In a New Jersey case, a nurse anesthetist put the breathing tube in a patient’s esophagus instead of the trachea, causing the patient severe and permanent brain damage.  Since she was a hospital employee, the Plaintiff’s lawyer sued the hospital.  But, at that time under New Jersey law, a hospital could only be sued for $10,000 no matter how bad the medical malpractice, or how badly the patient was injured.  This is not enough to pay the costs of the lawsuit if you win, so experienced lawyers sue the hospital employees personally.  As a result, most hospital unions make the hospitals give their members personal malpractice insurance.

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What if the Doctor I am Suing has a Partnership or a Professional Corporation?

If a member of a medical group commits malpractice, can you sue all of his partners, even though they had nothing to do with the mishap?  Yes.  The law holds that when a doctor benefits from another doctor’s actions, he can also be held responsible for them.  Since all members of the medical group benefit from the activities of every other member, they are all responsible for his malpractice, and it does not matter whether they have a partnership, or organized as a professional corporation (with the letters P.C. or P.A. after their names), or work together without any formal arrangement.

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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.

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.

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.

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.

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.

     
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