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Exceptions to Requirements for a Doctor Patient Relationship

June 13th, 2013

Did you know that a doctor does not have to accept you as a patient? Just because you ask a doctor’s opinion, or go to his office, does not make you a patient. They have to accept you, either formally or by doing something, like giving advice or prescribing treatment.

You Cannot Demand a Doctor to Treat You When and Where You Wish.

If the doctor has office hours in the morning, they do not have to see you in the afternoon at your convenience. If the doctor tells you to go to a certain hospital, but you do not go, because you would rather be in a hospital of your choice, and something happens, the doctor is not responsible. You can suggest another hospital that you would prefer to be admitted to, but if the doctor does not comply, you can ask him to refer you to another doctor.

Abandonment is Reverse Reliance

When a doctor does not treat you when you expect him to, terminates your medical or dental care, or drops you as a patient, it is called reverse reliance. This can also occur while you still need postop care or when the doctor walks out without warning and refuses to give you another appointment.

Other Examples of Abandonment

Like the doctor patient relationship, there are other ways a doctor can abandon a patient, which might not occur to you. Suppose you are being treated by a doctor, who goes away for vacation and does not arrange for another doctor to care for his patients. Something goes wrong, and you cannot contact him. Is he liable? Yes. Doctors must make reasonable arrangements for the care of their patients when they are not available. They can do this by having another doctor on call, or referring their patients to a hospital ER, as long as an appropriate doctor is available.

This is a common cause of medical and dental malpractice, because doctors cannot have just any doctor take over their duties. For example, an ophthalmologist cannot turn over a complicated eye case to a family doctor. They must arrange for another qualified, eye specialist to cover for them. A lot of malpractice cases arise because a doctor may go away and does not leave anyone covering for them, or have their answering service refer patients to a hospital ER, which may not be adequately staffed. When that happens and something goes wrong, the doctor is liable, and the hospital may also be liable for accepting a patient that its ER was not equipped to treat. The doctor on duty in the ER must call in a qualified specialist, if one is available, or refer the patient to another hospital where the patient can receive appropriate care. The ER doctor is only justified in attempting treatment if there is not a qualified specialist available, and no other hospital is within reasonable distance, considering the patient’s condition.

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.

Requirements for a Doctor Patient Relationship

May 15th, 2013

With any doctor patient relationship, there should be mutual respect and trust between the two parties. Support is provided to the patient through open and honest discussion where diagnoses and treatment plans can be made and activated.

Unfortunately, this is not always the case, and many patients find themselves victims of medical or dental malpractice.

The following will help you to better understand a successful doctor patient relationship:

1. A Promise of Care in Return for Consideration

A doctor will take you into his care, then advise and treat you in return for payment or promise of payment, whether you actually pay or not.

2. A Promise of Care Creating Justifiable Reliance

A doctor on a camping trip promised his friend that his chest pain was not serious, and the friend relied on the doctor’s promise, to his detriment – the friend had a heart attack.

However, a promise of care with no consideration or reliance does not create a doctor patient relationship, such as a doctor giving advice at a social function, if you did not pay the doctor or take his advice.

With no doctor patient relationship established, the doctor cannot be responsible for any illness or injuries caused to you, since they were not caused by his advice.

3. The Doctor has to be Acting in his Capacity as a Physician or Dentist

If you express a medical or dental concern to someone who does not hold himself out as a doctor, and you do not know he is a doctor, he is not liable, and you cannot claim to have acted in reliance on his advice.

The Rule Is: If you relied on people to treat your medical or dental condition, because you were led to believe they were qualified professionals, you had the necessary doctor patient relationship, even if you do not know who they were, never saw them, or never paid them any money.

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 opinion.

Other Ways a Doctor Patient Relationship can be Established

April 30th, 2013

In our previous blog posts, we have been discussing ways in which a doctor patient relationship can be established other than a situation in which a person is treated by a doctor in his office or in the hospital. The following are examples of two other ways this can happen.

Unauthorized Prescriptions

In a Michigan case, a doctor’s wife took some of his prescription forms, forged her husband’s signature, and gave her friends prescriptions for sleeping pills. One lady overdosed and sued the doctor. Was he liable? No, because his wife had ready access to his office, which was in their home, and he had no reason to suspect that she would do such a thing. The doctor’s license to prescribe drugs did not extend to his wife, and she had committed a crime by forging his signature. This woman did not have a case for medical malpractice against the doctor.

Vicarious Liability

Injuries can be caused by nurses, technicians, and other employees of doctors and hospitals. A lab technician may do hundreds of tests a day that are sent in by many doctors. Is the technician liable if he or she makes a mistake and gives a wrong report, which causes a doctor to give the wrong treatment? You know the answer to that one – reliance. How about the owners or operators of the lab, even if they had the best equipment and hired only the most competent people? Absolutely. When a doctor can exercise any control over the actions of another, he has what is known as Vicarious Liability. If people have the authority to act for the doctor, like an x-ray technician taking x-rays while the doctor is not in his office, the doctor is responsible for their actions as the agent, and they may not have any responsibility at all.

Thousands of patients suffer due to medical 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.

Did You Have a Doctor Patient Relationship?

April 4th, 2013

You cannot sue a doctor who has never treated you or seen you as a patient. You must have a doctor patient relationship. If a doctor treats you in his office or the hospital, you are his patient and can hold him responsible for whatever happens. But, there are other ways in which a doctor patient relationship can be formed.

Partnership Liability

In an Oregon case, a doctor died while being sued for malpractice, and it was found that he had no assets or insurance to satisfy the judgment. Did the plaintiff come away empty handed? No. The doctor who died had practiced in partnership with another doctor. There was no formal arrangement but both had their names on the door, saw each other’s patients, and divided the practice income. Since each partner benefited from the actions of the other, each was liable for the other’s actions. The surviving partner’s insurance paid the claim, even though he had never seen the patient.

Ethical Duty to Warn

A woman in Illinois went to a doctor for an insurance exam, which was paid for by the insurance company. The doctor found a curable breast cancer and reported it to the insurance company but did not tell the woman, who later died of it. The doctor claimed he was working for the insurance company and had no duty to the patient. Right? No. A doctor has a duty to anyone who comes under his professional care, even if only for an examination, regardless of who pays the bill. In this case, the doctor had an ethical and legal duty to warn the patient of her life-threatening condition.

In a California case, a psychiatrist had a homicidal patient, who told the psychiatrist that he intended to kill a certain girl. The psychiatrist never warned the girl or her family, and his patient murdered the girl. The psychiatrist defended his lack of action by saying that he had a duty to protect the confidence of his patient and owed no duty to the girl, whom he did not know. The California court said that a doctor has a duty to protect unsuspecting people from harm that he knows his patient is likely to inflict and upheld a large verdict against the psychiatrist. However, in two other California cases, one in which a girl’s parents sued a psychiatrist, because he did not warn them she might commit suicide and another in which a patient under psychiatric care shot and killed patrons in a diner. The courts said that the psychiatrists only had to warn people who they knew were actually threatened by their patients and not relatives or casual victims, like the diner patrons.

Thousands of patients suffer due to 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.

Do You Have a Cause of Action?

March 19th, 2013

Before you file a medical malpractice or dental malpractice lawsuit, you have to find out whether you have a cause of action. Here is your first check-list:

Did You Have a Doctor Patient Relationship?

You cannot sue a doctor for medical malpractice who has never treated you or seen you as a patient. You must have a doctor patient relationship. If a doctor treats you in his office or the hospital, you are his patient and can hold him responsible for whatever happens. But, there are other ways in which a doctor patient relationship can be formed.

Reliance on a Doctor’s Assurance

Two couples were camping in Minnesota. One of the men was a pediatrician. During the night, the other man became sick, and his wife wanted to take him to the hospital. But, the pediatrician checked him over and said he would be better in the morning. Actually, his friend was suffering from a heart attack and was dead in the morning. The widow sued the pediatrician, claiming that her husband could have survived if he had been taken to a hospital. The pediatrician defended himself by saying: “I didn’t treat him. I’m not a heart specialist and didn’t even have a stethoscope with me. I just gave him the best, friendly advice I could under the circumstances.” Was it malpractice? Yes. By holding himself out as a physician, qualified to diagnose and treat the complaints, he had caused his friends to act, or not to act, in reliance on his assurance there was no danger. The pediatrician exercised a controlling influence on their decision.

Reliance on a Doctor’s Advice

You meet a doctor at a party and say: “Doctor, I have this heart (stomach, rheumatic, etc.) condition.” Maybe you are innocently trying to talk to him or maybe you are trying to get free medical advice. No matter. If the doctor says: “I’m sorry, that’s not my specialty” or “Why don’t you come and see me at my office”, there is no doctor patient relationship or cause of action. But, if he gives you advice concerning your problem, and you act on it, and anything goes wrong, he is liable. This is because he held himself out as a physician and caused you to act in reliance on that representation.

Reliance on an Unknown Doctor’s Opinion

In a New Jersey case, a boy twisted his neck in a football game. He went to the hospital, and they took x-rays. The doctor in the ER told him it was a sprain and sent him home. During the night, the boy became permanently paralyzed from the neck down, because the radiologist, who read the x-rays, missed a fracture of the vertebra, which should have been operated on immediately. The radiologist claimed that his only responsibility was to the hospital and the ER doctor, and he had never seen the boy or given him any advice or treatment. Was there a doctor patient relationship in this case? Yes. The radiologist had caused the treating doctor to act in reliance on the radiologist’s reading of the x-rays, and that was the cause of the paralysis. The jury found that the radiologist was the only one responsible and assessed a large award against him. Even if you never consulted a doctor, or never heard of him, he can be held liable if he causes you harm while acting in his capacity as a physician.

Reliance on a Doctor’s Signature

In a New York case, a doctor would leave signed prescription pads with his nurse. If patients came to his office when he was not there, the nurse would call him, and he would tell her how to fill out the prescription form. A signed prescription pad was stolen by a drug dealer, who filled it out and gave it to a teenager. The teenager had the prescription filled, took the medication, and died of an overdose. Was the doctor or the pharmacist liable for the teenager’s death? The doctor was fully responsible, because the pharmacist had acted in reliance on the doctor’s signature, which he knew to be genuine. The doctor was negligent in leaving signed prescription forms where they could be stolen.

Thousands of patients suffer, due to 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.

Suing for Hospital Negligence

March 7th, 2013

Hospitals have a responsibility to protect patients against the consequences of negligent errors. In the past, hospitals were mostly charities, run by churches and municipalities, and you may have contributed time and money to your local hospital. Most people would not have thought of suing their local hospital any more than suing their church.

Hospitals are Big Businesses

Hospitals picture themselves as friendly, open-door places where you can go for care. That is true, and most hospitals do a wonderful job; however, hospitals are also big businesses. The price of a semi-private room plus three meals can cost more than $1,200.00 per day. If you take two aspirin, add $75.00 or more to your bill. Doctors, who work for hospitals, such as x-ray specialists and pathologists, often have contracts under which they receive large fees for services that the hospital bills to your insurance company.

Doctors Employed by the Hospital

Some hospitals employ surgeons and medical specialists, who bill patients for their services as if they were independent doctors. But, the doctors then endorse these payments over to the hospital in return for a salary. These kickbacks may amount to 4 or 5 times as much as the hospital pays the doctor. If you have paid a hospital doctor for x-rays, anesthesia, or some other service, look at the record of your payment to see if it was endorsed over to the hospital. This is not to criticize hospitals, but to show you they work like any other big business.

Funding from Federal and State Governments

Hospitals do not derive all their income from patients and health insurance. Many of them receive funding from the federal and state governments. This is your tax money that hospitals receive for giving you care. If your care was not appropriate, don’t be afraid to speak up. It’s your money.

Malpractice Insurance to Protect Patients

All hospitals carry workers’ compensation insurance for the protection of their employees and malpractice insurance for the protection of their patients. No one challenges the right of an injured, hospital employee to file for workers’ compensation. There is no valid reason why you should not seek just compensation, if you are injured by hospital negligence.

The Rule Is:
When you file a medical malpractice lawsuit, you are asserting your legal rights in seeking just compensation from funds that have been set aside as much for your protection as the doctor’s or the hospital’s.

Thousands of patients suffer, due to 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.

Malpractice Insurance Industry vs. Medical Malpractice Lawsuits

February 20th, 2013

The malpractice insurance industry and medical societies have mounted nationwide campaigns to frighten the public by implying that if they file a medical malpractice lawsuit to assert their legitimate rights, the medical profession may disappear, and they will not be able to get medical care. And, it is true that several states’ laws concerning malpractice need revision. Some victims of the most flagrant medical malpractice receive little or nothing, while other people receive sizeable awards for questionable claims.

Malpractice Awards for Questionable Claims

An elderly New York woman was partially disabled by medical malpractice in a hospital ER. Her disability was not total, consisting mainly of difficulties in walking and digesting food. She was unemployed, so her financial losses were minimal. Yet, a jury awarded her several million dollars. In a Pennsylvania case, a woman claimed that a CT scan had destroyed her psychic powers. Even though the judge warned the jury that she had not offered proof of any malpractice, or that she had been harmed in any way, the jury gave her a sizeable award. At the other extreme, are cases in which injured patients, with bona fide claims and serious injuries, get nothing. But, exorbitant insurance costs and malpractice awards for questionable claims are the exception not the rule.

Malpractice Insurance Premiums are a Business Expense

Doctors pay their malpractice insurance premiums, whether they are sued or not. It is a business expense that doctors pay for the privilege of practicing medicine or dentistry, the same as the insurance that automobile companies carry to compensate people, who are injured or killed by design defects in their cars. Even in New York, where malpractice premiums are some of the highest in the country, they are a small percentage of the doctor’s income – a business expense, and it is 100% deductible.

The Rule Is: If you do not assert your rights, and many malpractice victims do not, the insurance company gets to keep the money that was set aside for your protection. The doctor does not receive a refund of his malpractice insurance premiums, if he is not sued.

Thousands of patients suffer, due to 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.

JD.MD, Inc. Listed on Top 100 Sites for Nursing and Medical Law

February 8th, 2013

OnlineFNP.com, a website for students to learn about accredited Family Nurse Practitioner programs in the U.S., has featured JD.MD, Inc., on its list of Top 100 Sites for Nursing and Medical Law. To view the complete list, go to OnlineFNP.com.

OnlineFNP.com connects students to degree programs; it provides information about family nurse practitioner career options, financial aid, and education.

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There is no charge to join JD.MD’s roster of medical and dental expert witnesses. Contact us at information@jdmd.com to receive a Confidential Registration form.

Suing a Doctor for Malpractice

January 24th, 2013

People used to think that suing a pillar of the community for medical malpractice or dental malpractice was a terrible thing. This point of view was encouraged by the medical and dental professions, whose attitude was, “How can people be so ungrateful when we are dedicated to saving humanity?” And, when the doctor was a family friend and confidant, that was a valid argument.

Many Doctors are Highly-Paid Technicians

But today, that relationship is basically gone. Many doctors are highly-paid technicians, who have spent a lot of time and money being educated, so they can earn a very good living. They are super specialized, which means they are concerned with treating one part of the body or one organ, and most of them have little free time for a patient’s personal problems or anything outside their narrow field of expertise. They see patients as technical problems to be cured and gotten on their way as quickly as possible. Some doctors see as many as a 70 patients a day. How much time do you think such a doctor has to listen to your personal problems?

Even the Most Learned Professors Make Mistakes

In the past, when the doctor was the trusted family advisor, a medical malpractice or dental malpractice lawsuit was considered a breach of trust and friendship and a terrible accusation that the doctor had committed an unprofessional act. A doctor, who was sued, felt his reputation and career were on the line. Those days are gone. Today, the law recognizes that even the most learned professors make mistakes. When people are injured by medical malpractice or dental malpractice, they should be compensated.

Many Doctors are Sued, and It Does Not Hurt Their Prestige or Incomes

Even if your claim is successful, you are not going to bankrupt the doctor, or take away his home, or lifetime earnings. When a doctor is sued for medical malpractice or dental malpractice, his insurance company hires a lawyer, pays the expenses of his defense, and any settlement or judgment against him. If the doctor’s insurance company settles the case out of court, the doctor may not have to spend a single afternoon away from his office, explaining his actions in court. In fact, defense lawyers often ask the judge to issue an order that any settlement paid to a victim remain “sealed and secret”, so it is difficult or impossible to find out whether the doctor was successfully sued for malpractice, and his reputation and income remain intact. Today, many doctors are sued, and it does not hurt their prestige or their incomes.

Thousands of patients suffer, due to 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.

The Billion Dollar Malpractice Trust Fund

January 8th, 2013

Juries see a medical malpractice or a dental malpractice lawsuit not as a contest between the doctor and his injured patient, to be divided on strict principles of right and wrong, like a criminal trial. Jurors are concerned with finding ways and funds to compensate the victims of malpractice.

Of course, the concern of jurors will not do any good, if it does not result in adequate compensation for your injuries and losses. Luckily, there is the equivalent of a billion dollar malpractice trust fund that has been established for your protection and compensation.

Judgment Proof Doctors

Doctors carry malpractice insurance for their own protection. In the 1970’s the cost of malpractice insurance rose dramatically. The reaction of many doctors was to reduce their insurance premiums by carrying less insurance or going bareback, meaning they had no malpractice insurance at all. That created the risk that a successful lawsuit against them could result in a levy against their personal wealth. So, doctors set up legal dodges, such as putting all their assets in the names of their wives or children, or setting up corporations or trust funds, which were protected from malpractice judgments. A court award or judgment is just a piece of paper if you cannot enforce it, and many victims of malpractice found that they could not obtain justice through the courts.

Plaintiffs discovered that the doctors who injured them had no insurance and were Judgment Proof, meaning plaintiffs could not enforce court judgments when they won. Plaintiffs then began suing the hospitals, where the malpractice occurred, under the legal theory known as Joint and Several Liability. Hospital insurance premiums soared. Since many hospitals are financed largely by public funds, the states and municipalities found themselves having to spend large sums to care for severely-injured malpractice victims of judgment-proof doctors and for hospital insurance.

Mandatory Malpractice Insurance

As a result, today all hospitals and health plans require doctors to carry adequate malpractice insurance, in order to have a staff appointment and treat patients in the institution. Many states have also started to institute mandatory malpractice insurance requirements to obtain licensure.

The requirement for mandatory malpractice insurance by states and hospitals is not for the doctors’ protection; they can do that for themselves. It is a billion dollar malpractice trust fund that has been created for your protection and compensation. If you can show that you were injured by someone’s negligence, you are entitled to be compensated by this fund.

Thousands of patients suffer, due to 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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