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.