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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.

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.

A doctor's duty to make a correct diagnosis requires him to inform himself by ordering the necessary tests, interpreting the test results correctly, and arriving at a logical conclusion by putting all the pieces of the diagnostic picture in their pro

per places and perspectives. With the sophisticated diagnostic tools today, a wrong diagnosis is more often the result of negligent or careless diagnostic work-up than lack of medical knowledge. It is often impossible to make a precise diagnosis, but there is rarely an excuse for making a wrong diagnosis. The following are some of the most common negligent errors:

1. Failure to do all routine screening tests indicated by the patient's history or physical findings.

2. Ignoring test results which do not fit in with the doctor's preconceived idea of what is wrong with the patient, especially when those results are positive.

3. Failure to repeat laboratory tests periodically or if the patient's condition does not respond as expected.

4. Attributing the patient's illness to a previous disease without checking to learn whether or not a new condition has developed.

5. Reliance on negative laboratory results, which do not square with other test results or the patient's general condition, especially if the patient's condition continues to decline.

6. Failure to repeat physical examinations and laboratory tests at frequent intervals during the course of a long illness.

In a Florida case, a 50 year-old man, with a history of smoking, went to a doctor complaining of wheezing and pain in the c

hest, a clinical picture suggestive of lung cancer. Even though the doctor was a specialist in Internal Medicine, he treated the patient and failed to take a chest x-ray for almost a year. When another doctor finally ordered a chest x-ray, the man's lung cancer was inoperable.

In a Georgia case, an elderly man in a nursing home complained of passing blood in his urine. This is a cardinal sign of cancer of the urinary tract and demands an immediate and complete work-up to identify the cause. However, the nursing home doctor did nothing about it for over a year, even though the bleeding was repeatedly noted in his chart, and the nursing home staff did nothing to notify the man's family or any other doctor. When his family finally found out and took him to a urologist, he was found to have terminal kidney cancer and died within a few weeks.

Now that you know what constitutes medical malpractice or dental malpractice, you can decide whether your doctor actually committed a departure from good and accepted practice that caused your bad results and is grounds for a malpractice lawsuit. Do not think about the words malpractice or negligence, which carry a moral implication of wrongdoing. Think about a departure from good and accepted practice. Did the doctor or the hospital employee do something that was not in keeping with accepted practices by good doctors? Did he make a serious mistake that a good and careful doctor should not have made?

The Rule Is: A valid medical malpractice case or dental malpractice case should be based upon a showing that the doctor did something that a good and careful doctor, in the same or similar situation, under the same or similar circumstances, would not have done.


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