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Posts Tagged ‘dental malpractice’
Thursday, November 10th, 2011
There is a time when you do not have to prove that anybody did anything wrong. That is when you are injured by a defective product, whether it is a surgical instrument, an electrical or mechanical device, splint, or an implant. Let us say you had a severe burn from an electric cautery during surgery, or your hip implant broke, or your spouse had a fatal heart attack because of a defective pacemaker. All you have to show is the product or medicine was defective or harmful, and you were injured. You do not have to show there was medical malpractice or dental malpractice.
Years ago, if a manufactured product injured someone, the only person who could bring a lawsuit was the person who had bought the product. If it injured anyone else, there was nothing they could do about it, because the law said they did not have what lawyers call Privity of Contract with the manufacturer. The manufacturer was only responsible to the people who bought its product and did not have any responsibility for other people who might use it and be injured.
In an old Wisconsin case, a mother and her infant were leaving the hospital in a hospital wheelchair. The brakes were defective and allowed the wheelchair to roll into the street, where it was hit by a car. The infant was killed. When the parents sued the company that made the wheelchair and the hospital, the judge dismissed the suit. He said the company had no responsibility to the parents, because it had not sold them the wheelchair. The hospital was not liable, because it had not manufactured the wheelchair and did not know it was defective.
That theory no longer applies to injuries caused by a defective product. Today, if you are injured by a manufactured product or device, and not by someone’s actions, every person who had anything to do with the accident can be sued under what is called the theory of Strict Liability. Lawyers call it the Stream of Commerce, because a manufactured product is like a log put into a fast-running river that crashes into things as it is swept downstream. Anyone who is damaged by it, even a thousand miles downstream, has a claim against the person who put it into the water. Once a defective product is sold to the public, there is no way of knowing who will use it or where it will end up. So, the law says that everyone who had anything to do with putting it into the Stream of Commerce has a responsibility for whatever damage it does and can be sued by anybody who is injured by it. Under today’s law, the Wisconsin parents would be able to sue the manufacturer, wholesaler, retailer of the wheelchair, and the hospital.
Tags: defective product, defective products, dental malpractice, medical malpractice, privity of contract, stream of commerce, strict liability
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Thursday, October 20th, 2011
The U.S. Constitution says all powers not spelled out in the Constitution are reserved to the states. If the Constitution does not give the Federal Government authority to control something, it comes under state control. Health law comes under state control, and each state makes its own laws and rules, concerning medical malpractice and dental malpractice.
The following is a list of state time limits, or statutes of limitations, which has been abbreviated. You can see what the statute is in your state; however, the laws do change, and there are important exceptions to the rules. In some states, the courts allow different time limits than those set by law. In the states that use the hybrid rule, the time limit is an absolute deadline, and your case must be dismissed, if you are even one day late. In states that balance the equities, your lawyer may obtain an extension from the judge, but it is a needless risk that you should not run.
The Rule Is: Whether you live in a state that uses the hybrid rule or one that balances the equities, file your lawsuit early and avoid the deadline. If there is any question about the time limit in your case, do not try to figure it out yourself - consult a lawyer.
State Statutes of Limitations in Medical Malpractice and Dental Malpractice:
Alabama – 2 years from injury or discovery; 4 years absolute limit. Minors under 4 years have until 8th birthday.
Alaska – 2 years from injury or discovery. Two years + 1 day of a minor’s 18th birthday.
Arizona – 2 years from injury. Statute tolled if claimant is under 18, mentally incompetent, or imprisoned.
Arkansas – 2 years from injury. Minors under age 9 have until 11th birthday.
California – 3 years from injury or discovery; statute tolled by foreign object concealment. Minors under 6 have until 8th birthday; outside limit 4 years.
Colorado – 2 years from discovery; other types of disability until 2 years after termination; statute tolled by concealment. Minors under 6 have 2 years after 6th birthday.
Connecticut – 2 years from injury or discovery. No extension for minors.
Delaware – 2 years from injury; 3 years from discovery; minors have until 6th birthday.
District of Columbia – 3 years from injury or discovery; limitation period begins to run on minor’s 18th birthday.
Florida – 2 years from injury or discovery; outside limit 4 years. Limitations apply to minors aged 8 or older; child under 8 must file suit by 8th birthday or within limitations period outlined above, which ever time period is greater.
Georgia – 2 years from injury; 1 year from discovery of foreign object; no action may be brought more than 5 years after injury. Minors have until 7th birthday; statute of repose cannot run before minor’s 10th birthday.
Hawaii – 2 years from injury or discovery; failure to disclose malpractice tolls the statute. Absolute limit 6 years.
Idaho – 2 years from injury. Statue begins to run upon a minor’s 18th birthday.
Illinois – 2 years from injury or discovery; if injury cannot be discovered during 2 year period, action must be filed within 4 years of injury; suits may be brought up to 8 years after injury but not after age 22.
Indiana – 2 years from injury. Minors under 6 have until 8th birthday.
Iowa – 2 years from injury or discovery; 6 year absolute limit. Also applies to minors 8 or older; minors under 8 have 2 years from date of injury or by 10th birthday, whichever is later.
Kansas – 2 years from injury or discovery; maximum of 4 years from occurrence. Minors have until within 1 year of 18th birthday, but not more than 8 years after injury.
Kentucky – 1 year from injury; 5 year absolute limit. For unmarried minors, statute begins to run on 18th birthday; for married minors, statute begins to run upon date of marriage.
Louisiana – 1 year from injury or discovery; 3 year absolute limit. Concealment tolls statute.
Maine – 3 years after date of injury; action accrues on date when foreign object in body is discovered or should have been discovered. Minors have 6 years after injury or within 3 years after minor reaches age of majority, whichever occurs first.
Maryland – 5 years from injury or 3 years from discovery of injury; 3 years from occurrence for death. Minors under 16 have until 16th birthday.
Massachusetts – 3 years from injury or discovery; disability 3 years after removal; concealment tolls the statute until 3 years after discovery. Minors under 6 have until 9th birthday.
Michigan – 2 years from date of injury, or within 6 months of discovery to a maximum of 6 years following injury. Minors under 8 statute begins to run on 10th birthday, or within the 2 year statute of limitations, whichever is greater. Minors under 13 with injuries to the reproductive system have until 15th birthday or within the 2 year statute of limitations, whichever is greater.
Minnesota – 4 years from injury or omission. Minors must file within 1 year of 18th birthday but no more than 7 years after date of injury.
Mississippi – 2 years from injury, omission, or discovery; not more than 7 years after injury or omission.
Missouri – 2 years from injury or omission; not more than 10 years after date of the act. Minors under 8 must file by 20th birthday.
Montana – 3 years from injury or discovery; absolute limit 5 years.
Nebraska – 2 years from injury or death; 1 year from discovery; 2 years from last treatment in failure to diagnose cancer; absolute limit 10 years.
Nevada – 3 years from injury, omission, or within 1 year of date of discovery, whichever is earlier; minors included. Minors with brain damage or birth defects have until 10th birthday; minors whose injuries result in sterility have 2 years from date of discovery.
New Hampshire – 2 years from injury; 2 years from discovery of foreign object.
New Jersey – 2 years from injury, omission, or discovery. Statute begins to run on a minor’s 18th birthday; minors with birth injuries must file by 13th birthday.
New Mexico – 3 years from injury or death; concealment tolls statute. Minors under 6 have until 9th birthday.
New York – 30 months from injury or omission; 1 year from date foreign object was or should have been discovered. Minors have 3 years from date of 18th birthday to commence action, but statute cannot be extended more than 10 years from date of injury or omission.
North Carolina – 3 years from injury or omission; 2 years from discovery to a maximum of 4 years; 2 years for wrongful death; 1 year for discovery of foreign object to a maximum of 10 years after date of injury. Minors within 1 year of 18th birthday.
North Dakota – 2 years from injury or discovery; maximum of 6 years. Disability of a minor may not extend statute by more than 12 years.
Ohio – Notice to defendant within 1 year of injury; action may be filed 180 days after notice; service of notice tolls statute by 180 days; 1 year for foreign object, but not more than 4 years after object discovered. Minors have 4 years after injury.
Oklahoma – 2 years from injury or discovery; 2 years for death or newborn. Minority and mental incompetence extend time limit, except for newborns.
Oregon – 2 years from injury; 3 years from death; absolute limit 5 years, except for concealment.
Pennsylvania – 2 years from injury or death; concealment and disability toll statute.
Rhode Island – 3 years from injury. Statute begins to run on minor’s 18th birthday.
South Carolina – 3 years from injury or discovery; 6 years for death; 2 years from discovery of foreign object or negligent placement of device; disability 2 years from discovery or 1 year from removal.
South Dakota – 2 years after injury or omission. Minors under 6 have 2 years after 6th birthday to file; minors 6 and older must file within 3 years from injury or omission.
Tennessee – 1 year from date of injury or discovery; not more than 3 years after injury except for concealment; 1 year after discovery of concealment; 1 year for discovery of foreign object. Statute begins to run on minor’s 18th birthday.
Texas – 2 years for injury or omission; not more than 10 years after that date. Minors under 12 have until 14th birthday.
Utah – 2 years for injury or discovery; 1 year from date of insertion of foreign object left in body or discovery; not more than 4 years from date of injury or omission. Statute runs on minor’s 18th birthday.
Vermont – 3 years for injury and discovery; 2 years from occurrence for death; concealment tolls statute; absolute limit 7 years; 20 years from last treatment for x-ray injuries.
Virginia – 2 years from injury or omission; 1 year for foreign object left or discovered, but not more than 10 years after insertion. Minors under 8 have until 10th birthday.
Washington – 3 years for injury; 1 year after discovery.
West Virginia – 2 years for injury or death; concealment tolls the statute.
Wisconsin – 3 years from injury or death; 1 year from discovery; concealment tolls statute. Minors have until age 10.
Wyoming – 2 years from injury, discovery, or death; disability tolls statute until 1 year after removal; court may grant extension if malpractice not discoverable with due diligence. Minors have until 8th birthday.
The Rule Is: These state time limits, which are subject to change, are absolute deadlines. After they run out, you cannot file your lawsuit for medical malpractice or dental malpractice. If your case is near its time limit, consult a lawyer as soon as possible.
Tags: dental malpractice, hybrid rule, medical malpractice, state time limits for malpractice, statutes of limitation, statutes of limitations
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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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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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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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Monday, August 23rd, 2010
If you are going to file a medical malpractice lawsuit or a dental malpractice lawsuit, you have to show that you were injured. Otherwise, the court cannot give you anything, no matter what the doctor did to you. The question is whether you have to prove that what happened was the doctor’s fault, beyond a reasonable doubt, and rule out all other possibilities.
Let us assume you had a baby in a hospital and the infant suffered a subdural (brain) hemorrhage. The hemorrhage clears up, but as your child grows, he or she develops cerebral palsy, which you learn may have been due to rough handling and improper use of obstetrical forceps during delivery. You have reason to believe the same injuries that caused the subdural hemorrhage also caused your child’s cerebral palsy. When you file your lawsuit, the doctors and the hospital admit that it was a difficult delivery, and the baby’s head was damaged. But, they also say that cerebral palsy has many causes, and challenge you to rule out other possible diseases or injuries. That would be almost impossible. How would you deal with it?
Or, your husband has severe chest pain and goes to the hospital where they do not take an ECG (electrocardiogram), or any lab tests, and send him home with medications. He later dies of a heart attack. The hospital says, “It was a massive heart attack, and he probably would have died anyway, even if he had been in the ICU (intensive care unit).” How do you answer that?
Or, you had a spinal operation for a bad back. Afterward, you developed a wound infection and meningitis, which left you paralyzed and brain damaged. When asked how this could happen in a modern hospital, under sterile techniques and infection control, the doctor showed your family a booklet published by the American College of Surgeons, stating that 7% of surgical wounds become infected. The booklet attributes the infections to contamination by the patient’s own germs and does not mention medical malpractice as a possible cause. He told the family that it was just your bad luck to be one of the 7%, and your infection was not anyone’s fault. You probably brought the germ into the hospital with you. True or false?
A woman goes to a doctor’s office several times over a period of months, complaining of a lump in her breast. The doctor does not do any diagnostic tests and tells her not to worry. Two years later, she goes to another doctor who discovers she has breast cancer, and it is inoperable. Cancer is an insidious disease, and no one can say for sure that it will not spread, even if treated aggressively in its very earliest stages. So, the doctor says, “How can you prove that she could have been cured two years ago?” You can’t. Not even the best cancer specialist can. You can give statistics and percentages, but no one can say for sure that that particular case could have been cured. So, what do you do?
Are these explanations valid defenses? Do they destroy your case? Do you have to show beyond a reasonable doubt that the doctor’s malpractice was the only cause of your injuries?
The Old “But For” Rule
In the past, medical malpractice cases and dental malpractice cases came under what lawyers call the But For Rule, which said the doctor was only liable if the bad result would not have occurred, but for his negligence. In simple terms, that meant the plaintiff had to rule out all other possible causes of the injury and show the bad result was 100% the doctor’s fault. That was often impossible, except for the most flagrant malpractice. In all the cases listed above, it would have been easy for the doctor to slip off the hook, by raising doubts and questions and demanding that the patient perform the impossible task of disproving all other possible causes.
Medicine and Dentistry are complex, and it is not often that you can nail anything down with 100% certainty or say that any single thing caused a good or bad result, especially with modern medicine and dentistry where different doctors and hospital personnel may be giving a patient several different treatments at the same time. Who is to say just who was responsible for what? Under that doctrine, all a doctor had to do was raise doubts and claim that some other person was partly responsible for the bad result, or that some other disease might have caused the injury, or that the outcome might have been the same, even if he had not committed malpractice and had done everything right, and he was home free.
We will discuss the new Substantial Factor Test in our next blog post.
Tags: brain damaged, breast cancer, but for rule, cerebral palsy, dental malpractice, dental malpractice lawsuit, heart attack, medical malpractice, medical malpractice lawsuit, meningitis, subdural hemorrhage, substantial factor test, wound infection
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Wednesday, July 7th, 2010
Fraud and deceit by physicians and dentists are serious words. They mean the doctor either defrauded you or deliberately deceived you. There are usually four ways in which a doctor can be guilty of these unethical actions.
First, the doctor intentionally misleads you as to the nature of your condition and what the treatment involves.
A North Carolina surgeon told a patient that a heart operation held no risk. The patient was not yet 40 years old, the operation was not really necessary, and he could have lived for many years without it. But, since the doctor had assured him there was not any risk, he decided to go ahead with it, just to be on the safe side. After the operation, the patient developed an air bubble to the brain and died.
Postoperatively, the patient’s family found out the operation was considered dangerous by heart surgeon, and as many as 10% of the people who have it die. Even though the doctor had performed the operation correctly and had not committed malpractice, he had willfully concealed the dangers of the operation to get the patient to agree to the surgery. The family sued, charging that the doctor had deliberately deceived the patient about the risks, and he did it for the money. The jury thought so, too.
Second, the doctor intentionally misleads you as to what went wrong with a treatment and gives you a false story to keep you from suing him, until the statute of limitations (time limit) runs out.
Third, the doctor alters or destroys his office records, or the hospital records, in order to conceal the truth from your lawyer and the jury. This is known as spoliation of evidence and is the most serious of all.
In a New York case, a woman was sent home from the hospital with pneumonia and she died. When the family’s lawyer obtained the hospital chart, all the reports of laboratory tests were normal. Since that did not square with the patient’s condition, the lawyer obtained a court order to see the original records in the hospital laboratory. It turned out that when the doctor was notified he was being sued for medical malpractice, he went to the hospital and removed the original laboratory report slips that showed his patient had a raging infection. He substituted forged reports that showed a normal white blood count when he sent her home. When that was brought out at trial, the jury not only gave the victim’s family an award for compensatory damages but added an amount for punitive damages, to punish the doctor for attempting to deceive the court.
Since reports of surgical operations and discharge summaries are very important, most hospitals require doctors to dictate the report of an operation before he leaves the surgical suite and the discharge summary within 48 hours after his patient is discharged from the hospital. The dates these reports are dictated and transcribed are indicated by a notation in the lower, left corner that read like this: D: 01/22/09, T: 01/24/09.
In a New Jersey case, a team of neurosurgeons botched a major brain operation, and the patient died. When the patient’s family filed a lawsuit for medical malpractice, and their lawyer obtained the medical records from the hospital, he discovered the report of the operation and the discharge summary had been dictated and typed a year after the patient died and two months after the lawsuit had been filed. Under hospital policy, the doctors would have been suspended and would not have been able to admit patients to the hospital, if the chart had not been completed. But, they had been admitting patients all along, since the patient died, so it was obvious they had destroyed their original reports and substituted falsified reports. The secretary was honest and noted the correct dates she typed the revisions and exposed the doctors’ scheme to deceive the court. The patient’s family won at trial.
Not all cases of alteration of medical records and spoliation of evidence are as easily detected as in this New Jersey case. Sometimes it requires an Authenticator of Disputed Documents (handwriting expert) to prove it to the satisfaction of the court. In a Virginia case, the authenticator found that the doctor had used a pen that was not even manufacturer until after the dates on his handwritten note. If you can show medical records have been altered or destroyed, it puts you in a strong position.
Fourth, a doctor offers to help you with your medical malpractice case or dental malpractice case or promises to be your expert witness. At the last minute, he fails to appear to testify or changes his opinion on the witness stand.
A Utah lawyer was suing an anesthesiologist for medical malpractice, which resulted in the death of a patient during surgery. The surgeon, who had performed the operation was critical of the anesthesiologist and offered to act as the lawyer’s medical expert witness. The lawyer did not bother to look for another expert or obtain any other opinion. The surgeon was also helpful in preparing an airtight case against the anesthesiologist, and there was never any question that the surgeon was responsible, too.
Three weeks before the case was due to go to trial, the surgeon announced that he would not be able to act as the expert witness “for personal reasons.” When the lawyer went to an independent expert, who was located in another city, he was astonished to learn that the surgeon, who had been so helpful, was the one who had committed malpractice and should have been sued. The lawyer did not have a case at all against the anesthesiologist. The surgeon had led the lawyer along until it was too late to sue him. When confronted, the surgeon admitted he never had any intention of testifying. It was too late to find a substitute expert, and the case was lost.
Tags: alteration of medical records, Authentication of Disputed Documents, compensatory damages, deceit, dental malpractice, dental malpractice case, expert witness, fraud, medical expert witness, medical malpractice, medical malpractice case, punitive damages, spoliation of evidence, statute of limitations
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