Posts Tagged ‘malpractice’
Another type of abandonment that most people are not aware of is when a doctor turns over an important part of your care to someone who is less qualified. In a Michigan case, an anesthesiologist told a patient that he would give her anesthesia during her surgery. He turned her care over to a nurse anesthetist as soon as the patient was asleep. The nurse anesthetist let the tube slip out of the patient’s trachea, causing severe hypoxia (lack of oxygen), cardiac arrest, and death. The patient’s family sued the anesthesiologist for abandonment and won. It was malpractice for the anesthesiologist to have turned the patient’s care over to the nurse anesthetist, who was less qualified, without informing the patient before surgery and obtaining her consent.
Residents do All or Part of the Surgery
Today, many hospitals train doctors, called residents, to become specialists. It is common for surgeons to let residents do all, or part, of the surgeries on the surgeon’s private patients, under the surgeon’s supervision. Some academic medical centers require surgeons to let residents do all the surgery, even on the surgeon’s private patients. Even so, it is not uncommon for surgeons to charge patients for the surgery and not tell them about the switch or who actually performed the surgery.
Medical Treatment and Surgery as a Non-Assignable Contract
An ophthalmologist admitted a patient to a New York City hospital for delicate eye surgery. The hospital’s rules required the ophthalmologist to let the resident in Ophthalmology perform the surgery. After surgery, the resident told the patient that he was the one who had performed the surgery, and the patient sued the ophthalmologist. Why? When a doctor undertakes to treat you as his patient, it is called a Non-Assignable Contract. The doctor has to do it himself and cannot turn your treatment over to someone else without your consent. Medical treatment, and especially surgery, fits the description of a Non-Assignable Contract. When you hire a doctor, you are paying for that doctor’s special skills, and you do not want another doctor working on you, especially if you are under anesthesia and if it is a doctor you have never heard of. If your doctor lets someone else work on you, without your knowledge and consent, your doctor is liable for any bad results. Even if the person who performed the surgery did not actually commit malpractice, because it is reasonable to suppose you would not have gotten the bad result, had your doctor had lived up to his obligation. Even if the results are good, your doctor has still breached his contract with you. If you had wanted to be treated by a resident, you would have saved your money and gone to the medical center’s clinic.
The Rule Is: Once a physician or dentist accepts you as his patient, he has to take care of you until you are cured, or turn your treatment over to another qualified doctor with your knowledge and consent, or he has to give you adequate notice that he is dropping you as a patient.
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.
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.
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.
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.
Hospitals are responsible for their employees, contractors, and staff. A hospital has the same obligation as any commercial enterprise to protect people, who enter its premises, whether they are patients or not. Here are some examples of medica
alpractice cases that challenged a hospital’s liability.
1. The hospital must maintain its buildings and equipment in good operating condition.
In Wisconsin, a woman went to visit her mother in a hospital and left her children outside. When they climbed onto a ledge to look in their grandmother’s window, one child fell off the ledge and suffered a head injury. The hospital said it was not liable. The child was not allowed inside as a visitor because of its age, and the hospital had no control over the child’s actions outside the building. The court disagreed and said the hospital had a duty to make its premises safe for everyone, inside and out.
2. Patients must be protected from dangerous conditions and self harm, especially if they are confused, drugged, suicidal, mentally or physically impaired.
In a Kentucky case, a hospital patient tried to walk down a flight of stairs while under sedation. She fell and was killed. The court held that the hospital was negligent in failing to keep her restrained in bed, when she was mentally confused.
3. Patients must be protected from harm or invasion of privacy by other patients or intruders.
In Massachusetts, a reporter disguised as a doctor sneaked into the delivery room. When his story appeared in a newspaper, the patient sued the reporter and the hospital for invasion of privacy and emotional distress.
The hospital said it was not responsible, since the reporter had gotten in without anyone’s knowledge. The doctors and nurses in the delivery room thought he was a new hospital orderly. But, the court said the hospital was liable, because it failed to give the patient the protection she had the right to expect.
4. Patients must be protected from hospital-acquired infections.
These are infections that patients contract from other patients or hospital personnel. It was thought, these infections were the result of germs passing from one patient to another. But, with sterilization techniques and antibiotics, chances are a hospital-acquired infection is due to some negligence on the part of the nurses or doctors.
It is difficult to sue a hospital, if you are injured by normal hospital conditions and practices. People who slip and fall on highly-polished floors will often waste a lot of money and effort trying to sue the hospital as if it were a department store. This is a non-starter, because hospitals are supposed to have highly-polished floors. A Mississippi man fell and suffered a concussion while waiting outside the operating room, where his wife was undergoing surgery. He claimed that he was overcome by chemical odors from the operating room. The court said the odors were normal in a hospital and dismissed his lawsuit.
Thousands of patients suffer, due to malpractice, and do not get the compensation they deserve. If you are a malpractice victim, or your client is a malpractice victim, contact JD.MD, Inc., today at 800-225-5363. We can provide you with a Comprehensive Screening Report, an initial case evaluation, of your medical malpractice cases.
Your lawyer will tell you that pleading res ipsa is risky, and your chances of winning are not good. He will probably recommend using it only as a last resort, if you absolutely cannot find a doctor willing to act as your medical expert witness or
dental expert witness. Even though your case may be obvious, the defense lawyers will bring in experts against you and raise side issues and legal technicalities that you will probably lose.
But res ipsa does come into malpractice cases in another way and can be useful when you do not know exactly what happened or who was responsible. In order to sustain a legal complaint against somebody, whether it is for medical malpractice, dental malpractice, or food poisoning in a restaurant, you have to prove three things:
1. What injury you suffered.
2. Who was responsible.
3. How that person’s actions caused the injury.
What if you are not sure what happened, or who did it? When you go to a doctor’s office or into a hospital, people will say: “take this pill”, “hold still for an injection”, etc. Either they do not explain what they are going to do, or it is highly technical, and you do not understand it. People you never saw before, and may never see again, do all sorts of things to you. A doctor comes into your room the night before surgery, asks you a few questions, listens to your heart, and leaves. You do not know who he is or what his function is, but this is the doctor, who is going to give you anesthesia the next day. For three or four hours, your life and future health will be in his hands.
You have headaches or chest pains, and your doctor sends you to the hospital for arteriography (x-rays of an artery). In the x-ray department, someone you do not know, who could be a doctor, a nurse, or a technician, puts a tube into the artery in your groin and threads it up to your heart or brain and injects dye, so they can take pictures of the arteries. This is medicine at its best. But, do you know who they are or what they are doing? You can only hope they are qualified do it right.
In a Missouri case, a man had an aneurysm (weak spot and bulge) of an artery in the brain. Aneurysms can burst and kill you, but brain surgery to clamp them is risky and expensive. So, it was decided to use another treatment. The doctor put a tube into the femoral artery (in the groin) and threaded it up to the aneurysm in the brain. Then he injected a medical version of crazy glue, which sticks to human tissue. The glue seals the leak just as effectively as brain surgery. When it works, it is magic.
Before pulling out the tube, the doctor sent the patient back to x-ray to check that the glue was in the right place. But, by the time the x-rays were taken, the glue had hardened around the tip of the tube. One end of the tube was stuck to his brain, and the other was sticking out of his groin. The tube could not be pulled out without tearing the artery and causing a potentially fatal hemorrhage. The court held that a juror does not need a medical expert
witness to know that the tube should not have been left in until the glue hardened, and the patient did not need an expert to explain the malpractice.
Or, you are in an automobile accident and taken to the ER. They admit you to the hospital, where you may be treated by several different doctors and nurses. Ideally, you get the best medical care, and everything turns out fine. But, when you are discharged from the hospital and find out something was done wrong, how do you know when or where it happened, or who did it? Can you use res ipsa in those situations?
The way res ipsa works is best seen in a famous California case. A doctor took out a patient’s appendix, and when the patient woke up, he found that the nerves and muscles of one shoulder were permanently damaged. It is a long way from the appendix to the shoulder, so he sued the doctor for medical malpractice. Remember, we said you have to say who hurt you and how they did it in order to establish your case. The doctor’s lawyer said the patient did not have a case, because he could not say 1.) who had injured him, or 2.) how it had been done.
That was unfair, because the patient was asleep at the time, and there was no way he could know what happened. All he knew was that he had a normal shoulder before the operation and was crippled when he woke up. The case went up to the California Supreme Court, not once but twice, and both times the court said the plaintiff did not have to say who hurt him or how he was injured. Since the doctors and nurses were the only ones who knew what took place, it was up to them to explain how the injury could have happened without negligence.
That is how you can use the theory of res ipsa. When you do not know what happened, it shifts the burden of proving how you were injured to the doctor, who then has to prove he did not commit medical malpractice or dental malpractice. Does that go against the spirit of the law that says you are innocent until proven guilty? No. It is a matter of fairness and makes the person who has the information come forward with it. If a doctor could cover up merely by refusing to disclose what happened, it would be easy for him to win malpractice suits by concealing the evidence and would be unfair to his patients. Res ipsa makes the doctor come forth with the evidence and justify his actions.
Do you always need a medical expert witness or a dental expert witness to explain a doctor’s malpractice to the jury? You do, but there is an exception. The function of a medical expert witness or
a dental expert witness is to explain technical arguments in simple terms the jury can understand. In medical malpractice and dental malpractice cases, each side hires doctors as expert witnesses, to explain its version of what happened to the jurors.
What if you cannot find a doctor, who is willing to be your expert witness and testify on your behalf? If you do not have an expert witness, the judge will probably rule that you have failed to make a Prima Facie Case, which means you have failed to show you have a valid complaint, and the judge will dismiss your case before the jury even hears your arguments.
Can you get around that obstacle, or do you just let your case go? Theoretically, if you know a lot about medicine, you could take the witness stand and explain your side of the argument, but you would have very little chance of winning. Your expertise would be
no match for the specialists testifying against you, and you would be an easy mark for a skilled, defense lawyer.
Winning a medical malpractice or dental malpractice lawsuit is like winning a boxing championship – you actually have to beat the champ. A tie will not do. In a medical malpractice or dental malpractice lawsuit, the doctor you are suing can act as his own expert, because he is an expert – and win.
There is another way you can go. If the malpractice is so obvious that the average juror can understand it without an explanation, there is a legal theory called Res Ipsa Loquitur, which means “the thing speaks for itself”, and in most states, you do not need an expert witness. In an Illinois case, a patient had a myelogram (injection of dye into the spinal canal) to diagnose the cause of back pain. During the injection, he felt a severe pain in his leg and afterward found that his leg was permanently paralyzed. Since he was not lame when he walked into the hospital, and paralysis is not a normal and usual complication of a myelogram, the court held that the average juror could understand there was malpractice, and he did not need a medical expert witness to explain what happened. In a Kansas case, a surgeon left a gauze sponge in a woman’s abdomen. The court ruled it was common knowledge that leaving a sponge in a patient was malpractice, and the woman did not need a medical expert witness.
In some defective product cases, you can also sue the doctor for malpractice, if he had anything to do with it. An eye specialist in Illinois was implanting an artificial lens after removing a cataract. When he got the cataract ou
t of the patient’s eye, he found that the implant he planned to use was defective and could not be inserted. Since the hospital did not have a replacement available, he could not finish the operation. He had to sew up the eye without the implant and do a second operation, which went wrong and
resulted in permanent loss of vision. The court held that the manufacturer and the hospital were liable to the patient, for selling a defective product to the hospital, even though they never had anything to do with the patient.
Could the patient also sue the doctor? Yes. There is always the chance that a surgical implant will be found to be defective, damaged in handling, or accidentally contaminated, so it cannot be used. A patient obviously cannot be kept on the operating table under anesthesia, while the factory ships a replacement. So, the surgeon and the hospital have a duty to be sure that a sterile back-up is available in the operative room in case anything happens. But, that is malpractice, which is different from the strict liability we are discussing. The patient would have to show they were both guilty of negligence and failed to anticipate the mishap, which would not be too difficult.
What if you do not find out you were injured by some machine or device until a long time later, when the product that injured you has been thrown away and can no longer be examined for flaws? What if the defective wheelchair, the contaminated injection vial, or the short-circuited heating pad have been thrown away by the time your lawyer asks to have them examined? How can you prove you were injured?
The Rule Is: It does not matter. All you have to do is show your injury was of the type that could have been caused by such a defective product. Then the defense has to prove that it was not. You do not have to produce the actual item that harmed you, especially if you can show that it is no longer available.
This is the length of time in which you must file a medical malpractice lawsuit or a dental malpractice lawsuit, allowing for all possible extensions we have listed in earlier blog posts. Most states use the
Hybrid Rule under which a medical malpractice lawsuit or a dental malpractice lawsuit must be started within a certain length of time after the time of accrual – no matter what. Unless you have a really good excuse, such as deliberate concealment of malpractice by the physician or dentist, you cannot sue for any reason after the absolute time limit has passed. This is simply an application of the legal principle mentioned earlier, that a person should not have to spend the rest of his life worrying that someone might come after him for a mistake made in the distant past.
Other states use a system known as Balancing the Equities in deciding whether
to grant an extension of the time limit. It means that the judge can consider all the factors, which might have justified a delay over the time limit and decide whether Equity (fair play) entitles you to more time. However, you must be prepared to show good reason why you are entitled to an extension, and it will usually be granted only if the delay was caused by something totally beyond your control.
1. You should be prepared to show that you suffered a genuine emotional upset.
You should be seen by a psychiatrist or psychologist, who can confirm that you are not faking. The doctor should order a complete medical work
-up, in addition to the psychological consultation. Otherwise, the defense lawyer may convince the jury you are faking, or your condition is due to some other cause.
2. You must show that it was more than a temporary upset.
You should maintain contact with your doctor or psychiatrist, while your case is in progress, especially if you continue to feel the emotional effects of your insult or injury. If you are actually under treatment by a psychiatrist, your case is stronger. Your testimony that you have had psychological problems, since your injury, is not nearly as convincing to a jury as your treating physician’s testimony that you have required ongoing care.
3. You must show that it had an adverse effect on your life.
You should keep a diary of your problems and relations with others. This helps to document the adverse changes that have occurred in your family, social, and business relationships. Letters, documents, or written comments about your condition are also helpful to your lawyer; however, they should be spontaneous. You should never solicit them from other people. The courts will not admit written evidence,
which has been prepared in anticipation of litigation. In other words, the judge probably will not let your lawyer show the jury a document that has been written at your request because of the chance that it is phony or misleading.
A California woman sued a plastic surgeon, because he located her umbilicus (belly button) an inch to one side, while removing fat from her abdomen. The jury gave her an award for a little displacement of her belly button. She won because she first established malpractice by bringing in a professor of Plastic Surgery as her medical expert witness. But, she also brought in a psychiatrist, who testified the plaintiff was so upset by bad results of the surgery that she had been under his care since it happened, and her career, marriage, and social life had suffered.
4. You have to establish that confidential information was leaked.
A medical malpractice case is not a criminal case, so you do not have to prove exactly who did it or how it was done, although it helps if you can produce a reliable witness, who heard the doctor talking openly about your condition. But, it is not absolutely necessary. The fact that confidential information, only the doctor heard from you in the privacy of his office, has become public knowledge is enough in some states.
A celebrity was in a New York hospital with a heart condition. Some reporters have contacts inside hospitals and pay hospital employees for information about famous patients. Every morning the New York newspapers reported on what had happened to the celebrity in the hospital. His cardiologist said he first learned the results of his patient’s ECG (electrocardiogram) when he read it in the morning paper. The celebrity sued the hospital for invasion of privacy and won.
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 hos
pital 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.