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Archive for the ‘Uncategorized’ Category
Thursday, May 19th, 2011
All states have Statutes of Limitations for medical malpractice and dental malpractice lawsuits. This is the time limit for filing a claim after you have been injured. In most states, it is an absolute bar, and you cannot bring suit if you go even one day over. In other states, if you can go before a judge and show good reason why you delayed over the time limit, he may give you an extension of the time limit. But, even in those states, the extension of the time limit is usually short and can be used by the opposing lawyers to weaken your case.
The Rule Is: Missing a time limit, or filing date, could be fatal to your case. If you have even the slightest doubt about how much time you have left, check with a lawyer.
How Do You Calculate the Time Limit?
The date on which the clock starts running in your case is known to lawyers as the Time of Accrual and is usually the date you were injured or the date you discovered you had been the victim of medical malpractice or dental malpractice. It can be delayed, and the clock stopped, in the case of: infants, minors, persons with legal disabilities, and by concealment or deceit on the part of the doctor.
The time limits for filing a lawsuit are determined by statute, which means the legislature in each state has set them by law. These laws are complicated, and different limits may apply to different types of cases. In the next few posts, we will be discussing incidents that will either start or stop the clock. We will also provide you with details, concerning each state’s Statute of Limitations for medical malpractice and dental malpractice.
Tags: dental malpractice, dental malpractice lawsuits, malpractice claim, medical malpractice, statute of limitation, statute of limitations, time of accrual
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Thursday, May 5th, 2011
Before you start a malpractice case, you have to know if the time limit has run out. Our laws recognize that it is not fair to make people live in fear that someone may sue them for a long ago deed or mistake. Every state has what are known as Statutes of Limitation, time limits for filing different types of civil actions.
All states have different Statutes of Limitation for medical malpractice and dental malpractice lawsuits. After a certain number of months or years, you can no longer sue the doctor or the hospital, no matter how bad the malpractice.
Should You File Early and Not Wait for the Deadline?
Yes. State deadlines are last-chance opportunities. There are many reasons why you should consult a lawyer and file your lawsuit, as soon as you are reasonably sure that you have been the victim of medical malpractice or dental malpractice. Even if you are not sure about the malpractice, and are within the time limit for your state, it is safer to talk to a lawyer and let her or him decide whether delay is advisable. The following are a few reasons for moving promptly on your case:
1. It protects you against having your case dismissed, because you missed the deadline. In some states, the deadline can be extended by a judge on a showing of good reason for the delay. In most states, if you go even one day over the deadline, you are out of luck.
2. It allows your lawyer time to discover what happened. In a Utah case, a woman suffered a surgical injury to the sciatic nerve that runs down the back of the leg. She considered her options for a long time. Finally, just before the time limit ran out, she consulted a lawyer, who filed a lawsuit against the surgeon. When the lawyer got the hospital records a month later, he learned that a hospital employee was to blame, and there was no case against the surgeon. It was too late to sue the hospital, and the plaintiff received nothing.
3. In some states, until you file your lawsuit, you cannot obtain all the facts and medical records, such as x-rays and doctor’s office records, to learn what really happened. It takes time to obtain documents and evidence.
4. In most instances, insurance companies are only concerned with cases that have been filed. They recognize these cases as serious claims and are more apt to settle. An unfiled lawsuit is an empty threat that goes into the inactive file and is ignored.
5. It allows you plenty of time to find the medical expert witness or dental expert witness you need. A New York lawyer had a strong case involving medical malpractice by a neurologist. In New York, a case can take a long time to come to trial, so the lawyer filed it away. Early in August, the court notified the lawyer that his case would come to trial just before Labor Day. When he started checking his files, preparing for the trial, he realized that he had never hired a medical expert witness. In the two or three weeks he had left, he started frantically looking for a qualified expert, who could testify on his client’s behalf. He was finally able to contact three neurologists, who agreed to help him, but none of them were available over the Labor Day holiday, When he went to court without a medical expert witness, the judge dismissed his case With Prejudice, meaning that it could not ever be brought again. The lawyer was sued by his client for legal malpractice.
6. Memories fade, witnesses move, and essential records may be lost or destroyed. The records and evidence necessary to your case should be gathered as early as possible. A witness statement, made soon after the injury, is more valuable than one made years later.
7. Scars fade, pain subsides, and people adjust to their disabilities. With the passage of time, most injuries, even death, have less impact on a jury. Jurors are more impressed by imagining the suffering and problems facing an injured person, than by hearing the defense lawyers tell them that you have adjusted to your disability, are holding a job, driving a car, and have a happy family life.
8. Many medical malpractice cases and dental malpractice cases are settled instead of going to trial, and settlement negotiations can take a long time. If you wait to file your lawsuit until after the settlement negotiations, your payment could be delayed. But, if your lawsuit is filed before your lawyer begins negotiating with defense lawyers, it is in the pipeline, and he can engage in settlement negotiations, without delaying the trial if negotiations break down.
Tags: dental expert witness, dental malpractice, dental malpractice cases, dental malpractice lawsuits, medical expert witness, medical malpractice cases, statutes of limitation, victim of medical malpractice
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Thursday, April 14th, 2011
There are four things to remember about suing a doctor for breach of contract:
1. You have to show that it was something you would not have done without an explicit promise of a good result.
2. You should have the doctor’s promise in writing, or one reliable witness, if it was a verbal promise. Otherwise, it will turn into a dispute, with you on the losing end.
3. The results have to be far below what you could reasonably expect, e.g. your nose looks much worse than it did before Plastic Surgery.
4. Your expectations must be reasonable, e.g. if your knees are crippled by arthritis or old injuries, you cannot expect the doctor to make them work like they did when you were sixteen.
Suing a Doctor for Breach of Contract:
1. In suing for breach of contract, the time limit is much longer than for a medical malpractice or dental malpractice lawsuit. If you have run over your time limit to file a malpractice lawsuit, and can satisfy the conditions noted above, you may be able to salvage your case by a suit for breach of contract.
2. You do not have to prove the doctor committed malpractice. You only have to show that the results did not conform to the doctor’s promises. In many cases, the report of a surgical operation only describes the mechanical details of what was done. It does not say how well it was done and is useless to prove malpractice. A report of a gallbladder operation might describe everything as going perfectly, but if you still have trouble and your x-rays show that gall stones were left behind, it does not matter what the surgeon’s report says.
Disadvantages of Suing a Doctor for Breach of Contract:
1. The amount you receive may be limited. In some states, you can only sue for what you have lost. This is known as Reliance Damages, the money you lost by relying on the doctor’s promises. In other states, you can also get Expectancy Damages, compensation for the happiness, satisfaction, and gains you would have achieved if the doctor had made good on his promise. Expectancy damages can run almost as high as what you would receive in a medical malpractice or dental malpractice lawsuit.
2. You must prove there was a definite promise of a specific result. The law governing breach of contract is different from laws governing medical malpractice or dental malpractice and is different in every state. Only your lawyer can tell you whether it will be worthwhile, or even possible, in your case.
The Rule Is: A lawsuit for breach of contract can sometimes succeed when you cannot sue for malpractice. Only your lawyer can decide whether this is the way to go.
Tags: breach of contract, dental malpractice, dental malpractice lawsuit, expectancy damages, gallbladder operation, medical malpractice, Plastic Surgery, reliance damages
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Tuesday, March 22nd, 2011
If a doctor tells you that you are sure to get a good result, or there is absolutely no chance of anything going wrong, that is what is known as an Express Warranty and creates a contract. You give him your money, or put up with the suffering, inconvenience, and time lost due to the treatment, in consideration of his express warranty that he can produce a certain result.
What if the doctor does not actually make any specific promises? What if he says, “I have given these weight-loss pills to over 500 patients, and no one has ever had a bad reaction.” What if a plastic surgeon shows you photos of patients he has operated on, and every photo shows an attractive person, so you think, “This doctor never misses. All his patients look wonderful, so I will, too.” Are those warranties, even if he did not spell them out in so many words?
Yes. This type of inducement creates what lawyers call an Implied Warranty and also creates a contract between you and the doctor. Even though the doctor did not spell it out, his presentation to you was designed to create the impression that nothing could go wrong. In some states, the courts will recognize an implied warranty as grounds for a lawsuit for breach of contract, but you have to be careful. As already explained in our blog, giving a good prognosis is recognized and accepted medical practice, to reassure the patient. The courts in most states will consider an implied warranty as just a prognosis and not a contract.
An unusual case of an implied warranty, giving rise to a successful lawsuit for breach of contract, took place in New York City. A famous plastic surgeon, who was also a talented artist, used to give his patients sketches showing what they would look like after he operated on them. When one patient’s nose did not turn out like the nose in the doctor’s sketch, she sued for breach of contract. The New York court held that the sketch was an implied contract and she won.
The Rule Is: If you claim the doctor gave you a warranty, either express or implied, you have to be prepared to show that it went well beyond what could be considered as a good prognosis and misled you into submitting to treatment you would not otherwise have had.
For instance, a ruptured appendix needs to be attended to immediately. Either it comes out right away or you could develop anything from an abdominal abscess to a fatal peritonitis. So, it does not really matter what the doctor tells you before he operates. On the other hand, you are not going to let a doctor do major surgery on your arthritic knee, or a rhinoplasty (nose job) on your daughter, unless you are reasonably sure he will produce a good result. You have time to look for a doctor, who will do the best job. If the procedure is something unrelated to your health or well being, like a face lift, it may not matter whether you ever have it done.
Tags: accepted medical practice, breach of contract, express warranty, face lift, implied warranty, prognosis, rhinoplasty
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Tuesday, March 8th, 2011
What if a doctor says, “I’ll admit I promised my patient a good result, and it didn’t turn out that way, but I defy you to show that I did anything wrong.” Maybe you do not have to. It is good medical practice and dental practice for doctors to give what is called a prognosis, which means an educated guess. They will tell patients that everything will be all right, or that they will recover, or predict the outcome of disease. It is a time-honored tradition to make the patient feel better, and it is not binding on the doctor.
The prognosis is not a guarantee of good results. The courts have ruled that when a doctor accepts you as a patient, he only undertakes to treat you, not to cure you or produce any specific result. In fact, the medical profession considered that, since no one can predict the outcome of an illness with any degree of certainty, any such guarantee is unethical. Most good doctors avoid saying anything that could be taken as a specific promise or guarantee of results and will rarely give you more than a general idea of what to expect.
There is an exception, however, when the doctor persuades you to submit to some treatment on the express promise that he will produce a certain result. This is especially true when the treatment is something you really did not need and would not have submitted to but for the doctor’s specific promise. In other words, you may have reason to sue for Breach of Contract if you did something, or submitted to some unnecessary treatment or surgery, just because you relied on the doctor’s promise of good results. The doctor’s promise does not have to be spelled out or put in writing. You would have to show that you acted in reliance on the doctor’s explicit promise of a good result.
Tags: breach of contract, prognosis
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Friday, February 4th, 2011
When Can a Doctor or Hospital Legally Release Confidential Information?
There are occasions when it is both permissible and necessary for a doctor to reveal confidential information about you. He can discuss your case with another doctor in consultation. He can discuss it at a staff or committee meeting in the hospital, provided it is a regular hospital meeting attended only by the medical staff, and the discussions are confidential. He can disclose it to your health insurance company. When you fill out an insurance claim form you authorize him to do so. Also, all insurance companies, health or life, require a consent at the time you apply for a policy. They can come back later and ask your doctor about your medical condition.
You cannot sue a doctor for medical malpractice or dental malpractice for entries he makes in a hospital or clinical record in the course of your treatment, even if they are wrong. But, you can sue the doctor or the hospital if they make your record public without your written permission. The Joint Commission requires that all hospitals keep medical records secret and not allow unauthorized people access to them. The Health Insurance Portability and Accountability Act of 1996 (HIPAA) gives you rights over your health information and sets rules and limits on who can look at and receive your health information.
Another exception is when you have a reportable disease. The law requires a doctor to report certain communicable disease to the health department to protect the public, and the health authorities are supposed to keep it confidential. If they leak confidential information about you, you can sue the health department. Usually, what happens is if you think you have been the victim of a confidential information leak, you sue both the health department and the doctor, and then let them fight it out between themselves to see who pays the award.
A doctor can also be ordered to reveal confidential information about a patient, if he is testifying in court. However, the judge would probably only order him to do so if it were necessary to the case. Finally, the doctor can reveal information about you if you sue him for malpractice. In that case, you are considered to have made your condition public when you filed the lawsuit.
Tags: communicable disease, confidential information leak, dental malpractice, HIPAA, joint commission, medical malpractice, reportable disease, victim of a confidential information leak
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Wednesday, January 19th, 2011
1. You should be prepared to show that you suffered a genuine emotional upset.
You should be seen by a psychiatrist or psychologist, who can confirm that you are not faking. The doctor should order a complete medical work-up, in addition to the psychological consultation. Otherwise, the defense lawyer may convince the jury you are faking, or your condition is due to some other cause.
2. You must show that it was more than a temporary upset.
You should maintain contact with your doctor or psychiatrist, while your case is in progress, especially if you continue to feel the emotional effects of your insult or injury. If you are actually under treatment by a psychiatrist, your case is stronger. Your testimony that you have had psychological problems, since your injury, is not nearly as convincing to a jury as your treating physician’s testimony that you have required ongoing care.
3. You must show that it had an adverse effect on your life.
You should keep a diary of your problems and relations with others. This helps to document the adverse changes that have occurred in your family, social, and business relationships. Letters, documents, or written comments about your condition are also helpful to your lawyer; however, they should be spontaneous. You should never solicit them from other people. The courts will not admit written evidence, which has been prepared in anticipation of litigation. In other words, the judge probably will not let your lawyer show the jury a document that has been written at your request because of the chance that it is phony or misleading.
A California woman sued a plastic surgeon, because he located her umbilicus (belly button) an inch to one side, while removing fat from her abdomen. The jury gave her an award for a little displacement of her belly button. She won because she first established malpractice by bringing in a professor of Plastic Surgery as her medical expert witness. But, she also brought in a psychiatrist, who testified the plaintiff was so upset by bad results of the surgery that she had been under his care since it happened, and her career, marriage, and social life had suffered.
4. You have to establish that confidential information was leaked.
A medical malpractice case is not a criminal case, so you do not have to prove exactly who did it or how it was done, although it helps if you can produce a reliable witness, who heard the doctor talking openly about your condition. But, it is not absolutely necessary. The fact that confidential information, only the doctor heard from you in the privacy of his office, has become public knowledge is enough in some states.
A celebrity was in a New York hospital with a heart condition. Some reporters have contacts inside hospitals and pay hospital employees for information about famous patients. Every morning the New York newspapers reported on what had happened to the celebrity in the hospital. His cardiologist said he first learned the results of his patient’s ECG (electrocardiogram) when he read it in the morning paper. The celebrity sued the hospital for invasion of privacy and won.
Tags: adverse effect, confidential information, emotional damages, invasion of privacy, malpractice, medical expert witness, medical malpractice, psychological problems
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Thursday, January 6th, 2011
When you go to the doctor, you have the right to expect him, and his employees, to keep information about you confidential. If he leaks information about your medical condition, it can damage your business, personal, emotional life, and your relationships and standing in the community.
What if an employee of the doctor, or the hospital, leaks confidential information about you? The employer is supposed to take due precautions to see that his employees respect the confidentiality of what goes on in the doctor’s office, or the hospital, and do not “talk out of school.” They are responsible for their indiscretions, if they do. If your doctor’s secretary tells her husband that you have tuberculosis, and he spreads it around the community, you would sue the doctor.
What if you find out the doctor, or the hospital, took pictures of you, without your consent, while you were undressed, under anesthesia, or in some other embarrassing situation and have shown them at a medical meeting or allowed them to be published? What if they allowed some outsider to watch? All those things would be grounds for a lawsuit.
What if the doctor, or his employee, puts out a story that you have a disease that would expose you to discrimination, ridicule, or contempt in your community? That is known as defamation, and the doctor really has no defense. He is responsible, and you may not even have to show you suffered any actual damages. Like the New Jersey woman with breast cancer, your justifiable apprehension of repercussions is enough to justify an award or settlement.
Outrageous Conduct: Earlier in the blog, it was noted that mere bad manners and crude language do not constitute malpractice, and generally they do not. Probably the most common cause of unsuccessful lawsuits is resentment at unfriendly or unfeeling actions by doctors or nurses. But, there is an exception. If the conduct of the doctor or hospital employee is so outrageous or offensive by normal standards, that it seriously disturbs your peace of mind, and is directed at you or a close relative, you may have grounds for a lawsuit.
The Rule Is: What constitutes outrageous behavior depends on the individuals involved in each particular case. However, there is one requirement you must meet. The words or actions must have been deliberate and intentional.
Tags: defamation, invasion of privacy, medical malpractice, outrageous conduct, slander
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Thursday, November 11th, 2010
Nothing in medical malpractice is so misunderstood as mental distress and psychological injuries. We see newspaper accounts of people who have received awards for pain and suffering or emotional distress. A sympathetic jury has decided to compensate someone for their terrible and frightening ordeal, in addition to their financial loss. It is true that mental distress can bring awards, but it can also be very difficult to prove. Judges can set aside what they consider to be excessive awards for claims of mental suffering with no reasonable basis, and some states have put limits on the amounts juries can give for “pain and suffering.”
So, how do you receive adequate compensation for your pain and suffering? Just saying that you are suffering and very upset, or shedding a few tears, will not get you very far. You have to show that: you required psychiatric treatment, you lost your job, your marriage fell apart, or you suffered some other demonstrable loss.
The Rule Is: You have to show that you actually did receive a shock that would have profoundly disturbed the average juror, and you suffered some real disturbance in your personal, emotional, or business life.
Types of Emotional Distress
Personal Suffering: Because of a doctor’s malpractice, you have to undergo painful surgery or will spend the rest of your life in a wheelchair. You hurt every time you move or maybe you cannot move at all. That is usually self evident and easy to prove.
Disfigurement: This ranks with physical pain in its appeal to juries, provided it was due to a doctor’s negligence and not some other cause. But, if you have been disfigured by an accident or a disease like cancer, you will not get much sympathy, if you sue the doctor, who did his best to correct it. To make a strong case, you have to show two things:
1. You looked normal before his treatment, and your disfigurement was entirely due to the doctor’s negligence.
2. It is permanent and cannot be completely repaired by existing surgical techniques.
Fear and Apprehension: This comes from knowing that you are in danger of death or disability because of the malpractice. A New Jersey gynecologist failed to diagnose a woman’s breast cancer in its early stages, when the chance for cure was good. When the cancer was removed by another surgeon two years later, the chance of a fatal recurrence was much greater because of the delay. The court ruled that the woman did not have to show the cancer had come back as a result of the delay or that she had actually suffered any physical harm. The court said her justifiable fear of a fatal recurrence, and the increased chance of such an outcome, justified the award against the gynecologist.
Emotional Shock: This comes from seeing someone near and dear to you seriously injured or killed. If you witness malpractice, which results in the death or serious injury of a member of your immediate family, the shock you suffer may justify a claim. In most states, you must actually witness the event, although some states will let you file a claim if you can show a genuine, emotional upset just from hearing the news. Your lawyer will have to advise you as to the exact law in your state.
Tags: disfigurement, emotional shock, fear and apprehension, medical malpractice, mental distress, personal suffering, psychological injuries
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Monday, October 18th, 2010
Let’s say you have a condition that has not bothered you for a long time but flares up due to malpractice. For example, you have an old back injury, which has finally quieted down after giving you trouble for many years. While you are in the hospital for another condition, you are allowed to fall off an examining table. Subsequently, your back condition flares up again. Can the hospital claim that it was not responsible, because you already had a bad back? The answer is no. There is an old legal rule that the wrongdoer takes his victim as he finds him.
Imagine that somebody hits you lightly on the head, just a bump that would not injure a normal person. But, you have a hole in your skull from an old injury and suffer a serious brain injury with permanent disability. Can your attacker get away with it by pleading that he did not know you were abnormal and that what he did would not have hurt a normal person? No, he cannot. There actually was such a case, and it gave rise to the legal theory know as the Thin-Skulled Plaintiff.
Anything that causes a quiescent condition to flare up, or a chronic condition to become worse, is considered exactly the same as an original injury. The fact that the doctor did not know does not excuse him.
It is important for you to realize that this applies only to medical malpractice and dental malpractice. If a doctor gives you some treatment, which causes you to have a bad reaction, without committing any malpractice, he is not to blame unless he knew beforehand you were likely to have the reaction. For example, if a doctor gives you penicillin, and you have an allergic reaction, that is your fault. If he gives you penicillin when he knows, or should have known, you are allergic, that is his fault.
You can set down three rules for a flare up of a preexisting condition or an unusual reaction:
1. If it is because of medical malpractice or dental malpractice, the doctor is responsible.
2. If there is no malpractice, and the doctor did not know about your particular problem, he is not liable.
3. If there is no malpractice, but the doctor knew, or should have known, about your special condition and did something that caused it to flare up or become worse, he is liable.
Tags: back injury, brain injury, dental malpractice, malpractice, medical malpractice, preexisting condition, quiescent condition, thin-skulled plaintiff, unusual reaction
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