Posts Tagged ‘dental malpractice cases’
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Earlier, we said that the doctor had to have exclusive control of your care. What if you do not know who had control, or what if several doctors and nurses were involved. The California patient we mentioned earlier had no idea who was responsible for his injury. In a case like that, you do not have to know. You can ask everybody and anybody what they did to you. In the California case, the court said all defendants, who had any part in the surgery, could be called upon to explain their actions.
Can you see what this does for you? You only have to establish what happened to you was probably due to medical malpractice or dental malpractice, and everybody who treated you has to explain his or her actions. It prevents the doctors from defeating your case by simply sitting on evidence, which only they have access to. It may be impossible for you to find out precisely what happened. So, res ipsa makes the doctor, who knows what went on, supply the information.
You do not paint yourself into a corner by guessing who you should sue, you sue under the theory of joint and several liability. That means all or any one of the people you name may be liable for your injuries and the whole amount of your damages. It lets the court assign responsibility and damages as it sees fit. You do not have the responsibility of trying to tell the jury who did what, or who has the money to pay for your damages.
In a Pennsylvania case, a patient suffered a serious back injury while under anesthesia, probably from having been dropped, and only sued the surgeon. When his medical expert took the witness stand at trial, the defense
lawyer asked him if he could say exactly who dropped and injured the patient. Was it the surgeon, the anesthetist, or a hospital employee? The expert admitted he could not say for sure, and the judge ended the trial right there, because the patient failed to make a case. If he had named everybody, jointly and severally, he probably would have won.
The Rule Is: If you are not sure how your injury occurred, or who was responsible, keep your options open until you find out. Your lawyer will know if your state recognizes the theory of res ipsa in medical malpractice and dental malpractice cases.
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.
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 Sta
tutes 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.
You became dissatisfied with your doctor and went to another doctor without telling him. It happens all the time. Or, you signed yourself out of the hospital, and the nurses and doctor made you sign a statement t
hat you were leaving of your own accord and against the doctor’s advice. If you do that and terminate your relationship with a doctor or a hospital, you have released them. They are no longer responsible for what happens to you. You become responsible for everything that happens to you from that moment onward, including aggravation or complications of your previous injuries because of failure to follow-up with your medical care.
However, it is important to note that a release, whether just implied by your actions or actually written out, only releases the doctor or hospital for whatever happens in the future. It does not cancel out any responsibility for what has already been done to you. If you go to another doctor or hospital, they become responsible for everything that is done from the time they accept you as a patient.
Just because you signed a release does not mean you have given up any of your rights for what was done to you before you signed the release. If you are asked to sign a release for things that have already happened, it is illegal, and the courts will not recognize it.
What if you are asked to sign a release before you are treated? That is only good for getting your consent to risky treatment, as already explained in the post on assumption of the risk, and it cannot be used as an excuse for medical malpractice or dental malpractice, because no one can ask you to sign away your protection under the law.
The exception to this is a consent to submit any dispute or malpractice claim to arbitration, instead of going to court. Some states recognize and enforce such agreements. Others consider them an infringement of your constitutional right to have your case decided by a jury of your peers. You will have to check with your lawyer to find out whether arbitration agreements are legal and binding in your state.
It is important for you to know that the release an insurance company adjuster might ask you to sign, in return for a quick settlement of your claim, is different and is legally binding. That is because it has nothing to do with the doctor’s treatment and is a contract
between you and the insurance company. You are getting valuable consideration in the form of a quick settlement of your claim, in return for your agreement to settle for a smaller amount. Since the insurance company is not the person who caused your injuries, it does not have to justify its actions.
The Rule Is: If you believe that you have been the victim of medical malpractice or dental malpractice, do not sign anything without your lawyer’s approval. If you do not have a lawyer, do not sign anything until you do and he or she approves.
Some states have what is called comparative negligence. Under this theory, the court estimates what percentage of the responsibility is due to your actions, and how much can be blamed on the doctor or the hospital.
Imagine that you went to a hospital ER with pneumonia. The doctors and nurses told you that you should stay in the hospital but failed to warn you of the dangers and risks you ran by leaving. You did not think it was serious and signed yourself out against their advice. You later developed serious complications and want to sue the hospital.
In a state that uses contributory negligence, you would probably be barred from collecting anything, because your behavior in defiance of the doctor’s orders was a substantial cause of your damages. However, in a comparative negligence state, the jury might say that the doctor was 20% responsible, the hospital was 20% responsible, and you were 60% at fault. Under the legal theory of comparative negligence, it is possible to be awarded damages, even if you were 90% to blame for what happened to you.
Effect of Comparative Negligence on Your Case
Comparative negligence is more favorable to you. The judge or jury cannot dismiss your case, because you were partly to blame. Theoretically, you can receive something, even if you were almost entirely responsible for what happened to you. However, your chances of winning anything are not very good, if your actions were responsible for more than 50% of your damages. Jurors are not impressed by people who are largely responsible for their own troubles. Lawyers call it “going into court with unclean hands.” Even though the law says you can receive an award when you were the one mainly responsible for your bad results, the jury will probably see you as an opportunist and side with the doctor.
If you think you may have been partly to blame, you should discuss it openly with your lawyer and let him decide whether your chances of winning merit the cost and trouble of going ahead with the case.
Contributory and Comparative Negligence States
Only five states still recognize the pure contributory negligence rule, which says that a damaged party cannot recover any damages if he is even 1% at fault: Alabama, District of Columbia, Maryland, North Carolina, and Virginia.
THE RULE IS: If you are accused of contributory or comparative negligence, the defendants must prove your action met the following conditions:
1. It must have been willful and deliberate.
2. It must have occurred at the same time as the doctor’s malpractice. If it occurred later, it can only be used by the doctor’s lawyer as a mitigating factor to reduce the dollar value of your damages.
3. It must have made your bad result worse than it would have been if you had followed instructions. If it did not have any effect on the course or the outcome of your illness, it cannot be used against you at all – no matter what you