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Archive for the ‘Uncategorized’ Category
Wednesday, September 28th, 2011
This is the length of time in which you must file a medical malpractice lawsuit or a dental malpractice lawsuit, allowing for all possible extensions we have listed in earlier blog posts. Most states use the Hybrid Rule under which a medical malpractice lawsuit or a dental malpractice lawsuit must be started within a certain length of time after the time of accrual – no matter what. Unless you have a really good excuse, such as deliberate concealment of malpractice by the physician or dentist, you cannot sue for any reason after the absolute time limit has passed. This is simply an application of the legal principle mentioned earlier, that a person should not have to spend the rest of his life worrying that someone might come after him for a mistake made in the distant past.
Other states use a system known as Balancing the Equities in deciding whether to grant an extension of the time limit. It means that the judge can consider all the factors, which might have justified a delay over the time limit and decide whether Equity (fair play) entitles you to more time. However, you must be prepared to show good reason why you are entitled to an extension, and it will usually be granted only if the delay was caused by something totally beyond your control.
Tags: balancing the equities, dental malpractice lawsuit, equity, hybrid rule, malpractice, medical malpractice lawsuit
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Tuesday, July 19th, 2011
Concealment and Deceit
These are specific forms of disability. A doctor delivers a baby and causes a brain injury; he knows that he can be sued. So, he alters the medical records, deletes references to what happened, and deliberately misleads the parents into thinking their child was brain damaged for some other reason.
You can understand the doctor’s feelings, even if you cannot sympathize with his actions. It is a temptation to head off a major lawsuit that will cause his medical malpractice insurance premiums to skyrocket, just by making a few judicious entries in the medical records and some soothing statements to the parents. Or, a doctor sews up an instrument inside a patient and when asked about it lies and says that all the instruments were accounted for, hoping to string the patient along until the time limit for a medical malpractice lawsuit has run out.
These actions would toll the statute of limitations until the concealment or deceit is discovered. However, the doctor has to do more than just keep quiet and not volunteer any information. No doctor is going to come right out and tell you that he committed medical malpractice.
You have to show there was active and deliberate concealment or deceit by the doctor or the hospital, and that it was designed to keep you from learning you had been the victim of malpractice. Failure to tell you, or giving you an explanation that makes him look good, is not sufficient reason to sue. The doctor has to actually try to mislead or deceive you by altering medical records, lying about what happened, or otherwise falsifying the information you receive.
Foreign Object
This means that some foreign object, a sponge or surgical instrument, was closed up inside your body without you knowing it. The clock does not start running until you detect it or should have detected it. For example, a surgical clamp or needle can stay inside your body for years without causing any trouble that would alert you to the fact it is there. A broken surgical needle can migrate around your chest or abdomen for years and cause strange symptoms without the victim realizing what is causing them. On the other hand, a gauze sponge in your abdomen, or dye injected into your spinal column, will probably cause a lot of trouble almost immediately.
In a New Hampshire case, the doctors committed medical malpractice by failing to deliver the entire placenta after the birth of a baby. That resulted in the patient having to undergo a hysterectomy. The doctors committed further malpractice by sewing up a gauze sponge inside the patient. The sponge caused serious infections over the next two or three years, but the same doctors, still treating her, either did not know or did not tell her what it was. She finally became so ill that she went to a hospital in Boston where the sponge was found and removed. But, by that time, it was too late, and she died leaving three orphans.
When her family filed a lawsuit, the doctors’ lawyers claimed the case was over the time limit, because the deceased lady and her family should have known something was wrong much earlier. But, the court held that her confidence in her doctors meant that the statute of limitations was tolled until the sponge was discovered and removed in Boston. If the doctors had advised doing an exploratory operation to find the cause of the trouble, and she had ignored that advice for more than two years, it might have been a different story.
The Rule Is: No patient can be criticized for continuing to have blind faith in a doctor even though he or she may have serious doubts about the doctor’s competence or performance. It is not a defense to a charge of medical malpractice, to say the patient should have suspected something was wrong and consulted another doctor. The doctor is the expert; it is his or her duty to refer the patient to another doctor, if referral is indicated.
Tags: concealment, deceit, foreign object, malpractice lawsuit, medical malpractice, statute of limitations, victim of malpractice
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Thursday, June 30th, 2011
You have surgery for sinus trouble but do not get any relief because of negligence by the ENT specialist, who performed the surgery. He continues to treat you for another 10 years. Can you still bring a medical malpractice lawsuit, even though you realized you have been the victim of malpractice, after the operation 10 years earlier but did not file your lawsuit?
In some states you can. The clock does not start until after the last treatment for the same or a related condition. Continuing treatments for the same sinus trouble would stop the clock, so would respiratory trouble or ear disease, if they were complications of the sinus trouble. But, treatment for a sprained ankle or a stomach complaint would not do it, because they are not related to the sinus disease.
Some people use this law to bring a medical malpractice case to life, long after the time limit has run out. When they find out too late the doctor has done something wrong, they go back and ask for another treatment. That can automatically start the clock running again.
In a Michigan case, a man had over 200 hair transplants for baldness. He liked them at first but later decided he did not like them. As time went on, he became more and more dissatisfied and finally decided to sue the dermatologist for medical malpractice. However, the two-year time limit had run out, so his lawyer told him to go back to the doctor and get just one transplant to cover a small bare spot. The unsuspecting dermatologist did it, and the very next day, the man’s lawyer filed a medical malpractice lawsuit for everything that had been done years before. The single treatment started the clock again.
Disability
This means legal disability, not physical disability. It includes minors, mental incompetents, persons in a coma, or persons who are physically prevented from exercising their legal rights, such as military personnel serving abroad or people in jail. Anyone who is prevented from exercising his or her legal rights for good reason is considered legally disabled and the Statute is Tolled (the clock is stopped) until the legal disability is removed. Most states do not start counting until the disabled person, or a legal guardian, is able to assert their legal rights.
If a child is injured, the clock may not start running until the child reaches age 10 or even full adulthood. Other examples of tolling the statute are: if a person is temporarily, mentally incompetent because of an overdose of drugs given by a doctor and is spaced out for a long time, or if a person is confined in a mental institution. It may not start until after the person is released and has become mentally competent again. Some states even extend the time limit for people in prison. A person in prison is usually not in a position to do anything about it until after they are released. Fundamental fairness requires an extension.
Tags: disability, legal disability, medical malpractice, medical malpractice case, medical malpractice lawsuit, mentally competent, statute is tolled, tolling the statute, victim of malpractice
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Tuesday, June 14th, 2011
Date of the Occurrence
This is the date the malpractice actually occurred. You were the victim of medical malpractice during surgery or in the emergency department of a hospital. There is no difficulty in determining the Date of the Occurrence. On the other hand, if your mother went to a doctor complaining of a lump in her breast, and he saw her several times over a period of a year but failed to do a diagnostic work-up that would have revealed cancer, the date of the occurrence could be difficult to determine. Or, if you had a series of spinal manipulations for a bad back, you cannot be sure which one caused your fractured vertebrae.
Date of Discovery
Often, it is difficult to determine precisely when malpractice and injury occurred. In some cases, it is not even discovered until after the time limit, counting from the date of the occurrence, has run out. Therefore, most states use another measure called the Date of Discovery. This is the date on which a reasonable person should have discovered that he or she was the victim of malpractice.
In most medical malpractice or dental malpractice cases, the victims do not realize they have been the victims of malpractice for a long time. They tend to think their complaints are normal and usual complications of their disease or treatment. In fact, it is estimated that almost 90% of malpractice victims do not file suit, because they never realize their injuries are due to someone’s negligence.
A Georgia man suffered a serious back injury while working on a construction site. The emergency room doctors were surprised to see a surgical clamp on the x-rays. When the doctors questioned the patient, he told them he had had stomach surgery in Delaware 20 years earlier. He also told them he had suffered from chronic stomach trouble ever since, but it had not been bad enough for him to consult a doctor. He discovered the malpractice, and the clock started running when the doctor in Georgia told him about the instrument left in his abdomen. He sued and won.
Let us assume the man in Georgia had had so much discomfort from the clamp in his abdomen, that he had gone to another doctor a year later, and that doctor said, “I don’t know why you are still having stomach trouble. Let’s take an x-ray.” But, the patient had ignored the doctor’s advice and did not do anything until later. The court would have said that he should reasonably have discovered it sooner when it would have shown up on an x-ray and failure to do so was his own fault. His complaint would be thrown out, because it was way over the time limit.
At the other extreme, a Pennsylvania woman tried to sue a plastic surgeon for medical malpractice one week after the statute of limitations had run, because she decided that she did not like the rhinoplasty he had done. The court ruled there was no valid excuse for not having moved sooner. She had been looking at her nose every day since her surgery and had ample opportunity to make up her mind. Her case was barred.
The legal term for this is Laches, and it means that if you sit on your legal rights for a long time and do not move to enforce them, you lose them. Once you have reason to suspect medical malpractice or dental malpractice, you must move, if only to find out whether your suspicions are correct.
Tags: Add new tag, date of discovery, date of occurrence, dental malpractice, dental malpractice cases, laches, medical malpractice, statute of limitations, victim of medical malpractice
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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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