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Prior to 1940, public hospitals could not be sued for medical malpractice, because they were charitable institutions, rendering a public service. It was known as the doctrine of Charitable Immunity. Most hospitals were supported by churches, mun

icipalities, or universities, and it did not seem right to sue an organization that existed on charity and whose only purpose was healing the sick. Today, hospitals are big businesses and big money makers, and that doctrine has been discarded in just about every state. Hospitals can be sued like any other healthcare provider.

However, when charitable immunity was done away with, some states passed laws limiting the amount a patient could recover from a hospital. This continued to give the hospitals privileged status and protection, and by setting the limit so low, it was not worthwhile to file a medical malpractice lawsuit against them.

What do you do if your infant is brain damaged in a hospital, in a state where your recovery is limited? You find out the names of the hospital employees, who might have been responsible, and your lawyer files suit against them individually. They are not covered by the laws that protect hospitals, and almost all of them have their own medical malpractice insurance. In fact, most union contracts require hospitals to give their employees this protection. So, if you cannot sue the hospital for some reason, or the laws of your state prevent you from getting full compensation, your lawyer will sue the individual hospital employees involved.

The other situation is when a hospital employee or contractor does something outside the scope of his or her employment, especially if it is an unlawful or criminal act. In Pennsylvania, the family of a mental patient in a state hospital sued the state, because she had been sexually assaulted by an attendant. The court held that the state was not responsible for the attendant’s criminal act, which was outside the scope of his employment and which it could not have prevented.

In a Texas case, a patient went to a small hospital late at night after an automobile accident. The nurse on duty took x-rays, told the patient they were negative, and sent him home. No radiologist read the x-rays. The patient developed leg paralysis viagra canada from an undetected fracture and sued both the hospital and the nurse. The judge said the hospital was not liable, because the nurse was not authorized to take or read x-rays and should have called in a radiologist. He assessed damages against the nurse.

The Rule Is: If there are doubts about your ability to recover full compensation from a hospital, your lawyer will name individual employees who were responsible.

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.

You have surgery for sinus trouble but do not get any relief because of negligence by the ENT specialist, who performed the surgery. He continues to treat you for another 10 years. Can you still bring a medical malpractice lawsuit

, even though you realized you have been the victim of malpractice, after the operation 10 years earlier but did not file your lawsuit?

In some states you can. The clock does not start until after the last treatment for the same or a related condition. Continuing treatments for the same sinus trouble would stop the clock, so would respiratory trouble or ear disease, if they were complications of the sinus trouble. But, treatment for a sprained ankle or a stomach complaint would not do it, because they are not related to the sinus disease.

Some people use this law to bring a medical malpractice case to life, long after the time limit has run out. When they find out too late the

doctor has done something wrong, they go back and ask for another treatment. That can automatically start the clock running again.

In a Michigan case, a man had over 200 hair transplants for baldness. He liked them at first but later decided he did not like them. As time went on, he became more and more dissatisfied and finally decided to sue the dermatologist for medical malpractice. However, the two-year time limit had run out, so his lawyer told him to go back to the doctor and get just one transplant to cover a small bare spot. The unsuspecting dermatologist did it, and the very next day, the man’s lawyer filed a medical malpractice lawsuit for everything that had been done years before. The single treatment started the clock again.


This means legal disability, not physical disability. It includes minors, mental incompetents, persons in a coma, or persons who are physically prevented from exercising their legal rights, such as military personnel serving abroad or people in jail. Anyone who is prevented from exercising his or her legal rights for good reason is considered legally disabled and the Statute is Tolled (the clock is stopped) until the legal disability is removed. Most states do not start counting until the disabled person, or a legal guardian, is able to assert their legal rights.

If a child is injured, the clock may not start running until the child reaches age 10 or even full adulthood. Other examples of tolling the statute are: if a person is temporarily, mentally incompetent because of an overdose of drugs given by a doctor and is spaced out for a long time, or if a person is confined in a mental institution. It may not start until after the person is released and has become mentally competent again. Some states even extend the time limit for people in prison. A person in prison is usually not in a position to do anything about it until after they are released. Fundamental fairness requires an extension.

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.

An Illinois man went to a hospital ER after being hit in the head with a bottle during a bar fight. He was belligerent, staggering, confused, and had slurred speech. The doctors thought he was drunk and did not pay much attention to him. They a

llowed him to sign himself out against their advice. He went home; his family put him to bed to sleep it off. In the morning, they could not wake him. He was rushed back to the hospital where it was found that he had been suffering from a skull fracture and brain injury and was not drunk at all. He could have been saved when he first went to the ER, but by the time he returned to the ER, the pressure on his brain had caused an irreversible coma and he died.

His family sued the hospital, claiming he should never have been allowed to leave the hospital without a thorough work-up, which would have revealed the head injury and allowed surgeons to save his life. The hospital claimed contributory negligence, because the patient had signed himself out of the hospital against medical advice. The court said his action was not negligent, because it was not willful. In his confused mental state from the brain injury, he did not realize what he was doing.

A Florida man suffered a broken leg in a motorcycle accident. It was set incorrectly in the hospital. He ended up permanently lame due to a crooked leg. When he sued, the doctor moved to have the lawsuit dismissed because of contributory negligence. The doctor claimed the bad result of his treatment had been made worse, because the patient had been too active while still in the cast. The Florida court refused to dismiss the case, because the contributory negligence had occurred long after the doctor's malpr

actice in setting the leg. However, it did reduce the amount of the jury award, because the man had actually tried to play football, and his activity made the results of the doctor's malpractice much worse.

It is not contributory negligence, if you dismiss a doctor who has lost your confidence. You certainly do not have to continue following the advice of a doctor, if you think he is not handling your case right. If that happens, and you are not in a hospital, you simply go to another doctor. If you are in a hospital, you should ask your doctor to call in a qualified consultant. If your doctor refuses to call in another doctor, ask the hospital administrator to intervene. If he refuses, call your lawyer. You are always entitled to a substitution of doctors, if a qualified substitute is available.

The Effects of Contributory Negligence on Your Case

Contributory negligence can have two effects on a medical malpractice lawsuit or dental malpractice lawsuit. First, if the defense lawyers can show that your willful conduct seriously influenced the outcome, they can ask the judge to dismiss your complaint. Second, they can use it to persuade the jury to rule for the defendant. If the jury decides your actions were 50%, or more responsible, it will probably award you nothing.

An Indiana man suffered severe chest pains while playing tennis. He went to a hospital ER where an ECG (electrocardiogram) showed signs of an early heart attack. Hospital admission was advised but he refused and left the hospital against medical advice. Later that day, he resumed playing tennis and dropped dead on the court. The widow's malpractice suit against the hospital for failure to use more vigorous persuasion was dismissed, because of her husband's contributory negligence in ignoring the advice of the ER doctor.


Lawyers call this the Lay Standard, because it is based on what a layman (the patient) understands and not what a professional thinks she needs to understand.  The Reasonable Patient Standard simply says the doctor has to disclose all information which would influence you, or any other reasonable person, in deciding whether or not to go ahead.  This is a lot easier for you, because you do not need a doctor to testify to what is reasonable.  If you would have acted differently, had you known all the facts, then it is not an informed consent.  Put another way, the doctor has to disclose all material risks.  A material risk is one that the average person would take into consideration in making a decision.  And, like the reasonable physician standard, the doctor must also tell you of alternative courses of treatment and what can happen if you refuse treatment.  The reasonable patient standard is better for you, because you do not have to bring in an expert, and the doctor cannot defend himself by saying he told you what one of his colleagues would have told you.

How much a doctor has to tell you varies from state to state.  Some states have the Therapeutic Privilege; some do not.  Some give doctors a free hand in treating life-threatening emergencies.  Only your lawyer can tell you for sure whether the information your doctor gave you satisfied the law in your state.

The first time the reasonable patient standard was used by a court was in Washington, D.C., and it is a famous case.  A neurosurgeon did a laminectomy (a spinal operation) on a 19 year-old girl, who complained of some back pain.  He did not warn her about the possible complications, especially the 1% chance that the operation could leave her paralyzed for life, which it did.  The doctor said he had complied with the law by telling her as much as he thought she needed to know, which was not much.  But, the court said he failed to give her enough information to allow her to make an informed decision.  She would not have risked even a 1% chance of paralysis just to get rid of a backache that could have been treated safely by conservative means.  Since that time, more and more states have adopted the reasonable patient (lay) standard.

An Oklahoma woman was advised to have a routine Pap smear for cancer of the uterus; however, she did not follow-up, and the doctor said nothing more about it.  She did not have the test.  She later developed incurable cancer and sued the doctor for failure to warn her.  At that time, Oklahoma used the reasonable patient (lay) standard, and the court found the doctor was negligent, because he had failed to advise her of all the material risks of her refusal.  The ease and simplicity of the test, and the serious risk of death from cancer, made a warning and follow-up mandatory.

Unusual or Experimental Treatments

All unusual or experimental treatments come under the reasonable patient standard in almost every state.  The doctor must tell you everything that is known about it, including the most remote possibilities of any bad reaction, before subjecting you to anything that is not approved by the federal government or generally accepted by the medical profession.  This is true also of treatments like sterilization or x-ray therapy, which can have permanent effects on your life or cause serious complications years later.

In the 1950’s a sleeping pill called Thalidomide was developed in Germany.  It was never approved by the U.S. Food and Drug Administration, but some doctors brought it into the country and gave it to their patients.  It was later discovered that if taken by pregnant women, it caused children to be born without arms and legs.  Many lawsuits resulted with significant damages awarded.  In all of the cases, the doctors, who had given the drug, were held to the reasonable patient (lay) standard in failing to warn that it was an experimental drug.

Who is Responsible for Informing You?

If you file a medical malpractice lawsuit and complain that you did not sign an informed consent, you may find yourself getting a “fast shuffle” with the doctors, the residents, and the hospital, each blaming someone else.  The rule is that each doctor is personally responsible for informing you about what he is going to do and obtaining your informed consent.  He does not have to do it himself, but if he sends a resident or a nurse or anyone else, he is still responsible for what that person tells you.

If the doctor obtains your consent himself, he should sign it himself.  If someone else does it for him, he accepts responsibility when he countersigns it.  If he does not, both he and the person who obtained it are responsible.  If that person is a hospital employee, the hospital is also responsible.

The Rule Is:
The doctor who actually works on you is ultimately responsible for telling you what he is going to do and obtaining your informed consent, regardless of who actually gets it.

Which Standard Applies in Your State?

The laws in all states are complicated, and there are many exceptions to the general rules.  Only your lawyer can give you a reliable opinion as to which standard applies in your case.

Before you decide whether you have a legitimate complaint for lack of informed consent, let us look at some of the ways you can consent to a doctor’s treatment and some of the ways a doctor can treat a patient without that person’s formal consent.

Implied Consent

This is consent implied by your actions. The very act of walking into a doctor’s office, or a hospital ER, or voluntarily submitting to treatment is a valid consent. If you go into a doctor’s office with a boil on your neck and do not object when he lances it, you have consented. A Mississippi mother sued her local school board, because her child developed a severe reaction to an inoculation that was given to the child at the school clinic. She complained the shot had been given without her consent. The court held that she had given her implied consent by allowing the child to be sent to the clinic.

Verbal Consent

Any time you solicit a doctor’s opinion, advice, or treatment you have consented. It does not matter whether it is in his office, or a hospital, or on a street corner. This applies to simple everyday treatments and office visits, which are easily understood by the average person. It does not cover more complicated procedures, especially surgery.

A South Carolina woman requested a dermatologist to remove a blemish from her face by freezing it with carbon dioxide. The doctor warned her that it might leave a permanent depigmentation (white spot) and even with that knowledge, she agreed. It did and she sued the doctor for medical malpractice, because she had not signed a consent. The court held that her verbal consent was binding, because it was a simple procedure which anyone could understand.

Written Consent

Most medical malpractice lawsuits for lack of informed consent involve written consents. Theoretically, a doctor can do the most complicated and dangerous treatment with only your verbal consent. However, no doctor in his right mind would do such a thing. If the treatment is complicated, dangerous, or involves anesthesia and surgery, a prudent doctor or hospital will obtain a written consent from the patient. This type of consent is valid and binding on the patient, provided it is Fully Informed, meaning that you understood what you are agreeing to.

Consent by Proxy

This is when someone else consents to your treatment on your behalf. The obvious case is a parent consenting to surgery on a child. What if your father is unconscious from a fractured skull and needs immediate brain surgery? Can you give a legally-binding consent? No. In that situation, the doctors have to make the decision and do what they assume the patient would have consented to, if able. Only a spouse, legal guardian, or healthcare power of attorney of a patient can give a proxy consent for someone else.

That does two things. First, it means the doctors cannot pass the buck to you. They are the experts. They are responsible for the technical decisions and must do what they know is best. Second, they cannot do anything to an unconscious patient they know the patient would not have agreed to. For example, they cannot give a blood transfusion to a Jehovah’s Witness or do a hysterectomy on a young, unmarried female.

A teenage girl, who was visiting her aunt in Boston, decided to go to a doctor and have warts removed from her face. Both she and her aunt signed the consent for treatment, which scarred the girl’s face. She sued the doctor for medical malpractice and won. The court held that she could not consent, because she was underage; the aunt was not her legal guardian, and there was no emergency. Therefore, the consent was not legally binding on the girl or her parents.

However, this type of complaint may be difficult to win. It is based on the traditional legal theory that a minor cannot enter into a contract. In recent years, that rule has been seriously undermined by laws permitting teenagers to undergo abortions without their parents knowledge or consent. While the law still requires minors to obtain parental consent for other forms of treatment, the courts are more reluctant to enforce the rule. It does not make sense to permit a doctor to do an operation like an abortion, with only the teenager’s consent, but penalize him for doing trivial procedures, like removing a wart, with the same consent.

The child of two Jehovah’s Witnesses was admitted to a hospital in Maine following an auto accident. A blood transfusion was urgently required to save the child’s life, but the parents refused to consent on religious grounds. No one else could do it. So, the hospital administrator went to a local judge, who appointed the administrator and the doctor in charge of the case as temporary legal guardians. That gave them legal authority to order the transfusions, and the child’s life was saved. When he was out of danger, the judge returned the child to the custody of its parents. How did the parents feel when it was all over? They were happy and grateful their child’s life had been saved without having to violate their religious beliefs.

The Rule Is: There are a number of ways you can consent to treatment for yourself or a member of your family. However, the important points to remember are:

1. A consent only covers your specific illness and the immediate treatment agreed upon between you and the doctor. It does not cover any other disease condition the doctor may find, unless it says so in the consent form.

2. It is not transferable. It only applies to the doctor and the patient named in the consent. If you consent to surgery by one doctor, they cannot switch doctors. That is abandonment. If you consent to have one child’s tonsils out, they cannot do the other child. That is a battery.

3. Consent cannot be given by a family member, even if the patient is unconscious, unless the family member is a spouse, the legal guardian, or has healthcare power of attorney. If the patient cannot consent for some reason, the doctors will obtain a consent from the closest relative available. But, it is not legally binding on the patient. In that situation, the doctors must make the decisions themselves.

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You Received a Terrible Result. It Must be the Doctor’s Fault.

Your husband had by-pass surgery. Afterward, he developed an embolus (air bubble) that lodged in his brain and left him paralyzed and in worse condition than before the surgery. He is certainly entitled to get something for such a terrible result, right? Not nece

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ssarily. Some surgical and medical treatments carry high risks. Complications, including death, can occur without any malpractice. Remember, there has to have been malpractice, and you have to show that it was the probable cause of your injuries.

The Rule Is:
Bad results alone will not win a malpractice lawsuit. In every successful malpractice case, there was some identifiable incident or action that was, more likely than not (a greater than 50% chance), the cause of the injury.

Rudeness and Neglect

No one answered the call button when you were in severe pain, or you found that your mother had been lying on a bedpan all night, or you were kept waiting for three hours in the ER, or they left your father outside the x-ray department all afternoon with no one to attend to him when he was only semiconscious. Outrageous neglect? Yes, but they do not qualify unless they caused some bad result, in addition to the annoyance and aggravation.

A man with a stab wound of the chest was kept waiting in the ER of a Georgia hospital for over two hours and passed out twice before a doctor arrived to take care of him. However, the wound was successfully repaired, and he suffered no bad effects from his ordeal, so his lawsuit was unsuccessful. He should have reported the hospital to the health department or the department of human resources.

The Rule Is:
Neglect, rudeness, and bad manners may be infuriating and justification for strong words, but you must show they actually caused some damages to justify a medical malpractice lawsuit.

You Like the Doctor and Really Do Not Want to Sue Him.

Unless you feel strongly that you have been wronged, and have a healthy dislike for the person who did it, you will not win your case. A malpractice case can take several years. If you are not committed to it in the beginning, you will not have the stamina to see it through to a successful conclusion. You will only spend time and money and receive nothing in return. The insurance company lawyers are hoping to wear you down. One of their ploys is to make you feel sorry for the doctor, or run out of patience, so you will drop your lawsuit or settle for a nominal amount.

The Rule Is:
A malpractice case is always a fight, ostensibly between you and the doctor, but it really is between you and the doctor’s malpractice insurance company to see who gets the money that was set aside for your protection. Unless you are serious enough to fight and see it through to a successful conclusion, you should not start a malpractice case.

You Want to Sue the Doctor but Not the Hospital or Vice Versa.

For some reason, you do not want to sue one of the parties responsible for your injury. Maybe you work for the hospital or the doctor lives just down the block, and you do not want to make enemies. Forget it. The surest way to lose your case is to leave out a party, who should be named as a defendant.

In a Florida case, a woman suffered a serious injury while under general anesthesia. Since she was asleep, she had no way of knowing whether it was caused by the surgeon, the anesthetist, or a hospital employee. She did not want to sue the local hospital for personal reasons and only sued the surgeon. When her expert witness testified at the trial, the defense lawyers asked him if he could say for certain that the doctor, and no one else, had caused the injury. Of course he could not. The injury could have been caused by anybody who handled her while she was unconscious. So, the judge threw her case out of court. If she had sued everyone involved, Jointly and Severally, admitting that she did not know who was responsible, because she had been asleep, and let the jury decide who was responsible, she probably would have won her case and received an award.

There is another risk in leaving out people, who may have caused your injury. Defense lawyers may find a doctor who was involved but was not named as a defendant in the lawsuit and cannot be sued because the statute has run (too much time has elapsed). The defense lawyers blame it all on that doctor. Maybe he even cooperated to help save his colleague and becomes a Voluntary Defendant, which means that he assumes all the blame for what happened to you. That gets everybody else off the hook, and since he can no longer be sued, it leaves you holding the bag.

The Rule Is:
Sue everybody who might have caused your injury. You can always drop your complaint against anyone who turns out not to be at fault. But, you cannot sue anybody after the time limit expires.

Cancer and High-Risk Diseases

Cancer is a dread disease that inspires fear in most people and jurors. The cancer specialist can justify disfiguring surgery or giving the most poisonous drugs or deadly radiation, in order to save his patient from certain death. The same rule applies to heart surgery, in which one patient in ten can die, even with the very best care. In this type of case, the fact that you received a bad result does not mean a thing. You have the difficulty of showing there was no excuse at all for the bad result. The doctor can get eminent professors to testify truthfully that they have had lots of patients die in spite of their best efforts.

The one big exception is failure to diagnose and treat cancer or serious heart disease until it becomes incurable. Today, many cancers are curable if treated early. If you can show that negligent delay in diagnosis and treatment caused a cancer to go from a treatable stage to an incurable one, or that heart surgery was delayed until after the fatal heart attack, you have a solid case.

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Trivial Injuries or Damages

A malpractice lawsuit cannot be brought for the limits of most sm

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all claims courts. The legal paperwork alone costs more than that. But malpractice lawsuits can be brought and settled successfully for as little as $5,000, if handled by a competent lawyer. They are what is known as “nuisance suits” and are usually not worth taking to trial.

It can cost the doctor’s malpractice insurance company $5,000 just to set up the paperwork to defend even the most trifling case and another $10,000 to $20,000 in legal fees and costs if it goes to trial. In addition, malpractice insurance companies always worry about the possibility that a sympathetic jury might give an outrageous award, like the New York jury that gave a woman $200,000 for a cracked bone in her foot.

However, since the chances of winning enough to cover your expenses of going to trial are slim, they do not justify you spending much money or your lawyer doing much work either, and you may even have difficulty finding a lawyer who is willing to accept your case. The lawyers on both sides like to settle small cases for something less than the cost of a trial. They are usually good for a small settlement in the $10,000 to $15,000 range. But, if you become greedy and insist on going for a lot of money, you will probably lose everything.

You should always take your lawyer’s advice regarding the value of your case and not be misled by news stories of enormous awards in malpractice cases. The reason for this is that the occasional big verdict in a malpractice case always receives a lot of publicity. But, you rarely hear about all the plaintiffs who did not win. Being greedy can be a fatal mistake in a malpractice case.

The three important points to remember about trivial or nuisance value claims are:

1. There must be a clear case of malpractice, so you have a good chance of winning something if you go to trial, especially if your injuries were not serious or your financial losses were small.

2. Your injuries were not severe or only temporary. Perhaps the doctor set a fracture wrong, causing some pain and suffering for a few days or weeks before it was corrected, but the final result was good.

3. Your financial losses would not have been over $15,000, even if your medical bills had not been paid by insurance. A jury is not likely to give you much more than you spent.


You have been treated badly. The doctors and nurses have been rude and insensitive. Is that good medical care? No, but it will not win your malpractice case. You have to show actual malpractice caused an injury. You must show there was a departure from good and accepted practice, and it caused you substantial suffering or damages. Rude and insensitive treatment does not equal malpractice.

Maybe you think you will receive a huge verdict in excess of the doctor’s insurance and ruin him financially. Not so. The courts are not going to take away a doctor’s lifetime savings just because he made a mistake. That does not make him a criminal. Even if the jury gets carried away, the judge will probably reduce the amount of the award by what lawyers call Remittitur. Awards in excess of a doctor’s insurance policy are rare and only given in cases of outrageous and offensive conduct by the doctor. So, do not sue a doctor to get even or ruin him financially. It cannot be done. All you can expect is financial compensation for your suffering and financial loss.

Clean Up the Medical Profession

You do not care about the money, but you want to get the doctor out of the medical profession so other people will not have to suffer what you went through. Is that how you feel? You may even have read about how doctors and patients should help in getting bad doctors out of the profession. There is only one problem. It will not work. Even if you win your case, it is not going to affect the doctor’s license to practice and medical societies have little control over doctors.

The Board of Medical Examiners in each state controls medical licenses, and you can file a complaint with the board. But, it usually will not do you any good. Their job is to discipline doctors, not to help you. Cleaning up the medical profession is the job of licensing authorities and the medical establishment; it cannot be accomplished through malpractice suits.

Counter Sue the Doctor for His Bill

The fact that a doctor has overcharged you is no reason to initiate a malpractice lawsuit. The cost of litigation can be many times the doctor’s bill, and even if you win, you are likely to end up with just the amount of the bill being forgiven and not have enough left over to pay your lawyer. Disputes over doctors’ fees are best handled in small claims court or by your lawyer, just like any commercial dispute.

However, if a doctor sues you for his bill and you do not want to pay it, because his services were not satisfactory, you can counter sue in what is called an Affirmative Defense. In some states, you can only counter sue for the amount claimed against you; other states do not limit the amount you can ask for. Either way, it can be an effective means of getting the doctor to reduce or withdraw his bill. Insurance companies do not like doctors who get themselves sued by squeezing patients for money.

How to find out if you were the victim of malpractice and how to assert your legitimate rights.

By James Douglas McVean Lake, M.D., J.D.

The author of this article was not engaged in rendering legal advice or assistance. Medic

al Malpractice is not a substitute for competent legal counsel. We assume no responsibility if it is used for that purpose. Only a licensed attorney can give reliable advice concerning a specific case or successfully prosecute a medical malpractice lawsuit.

Although every effort has been made to ensure the accuracy of data cited, we make no warranty against errors, inaccuracies, omissions, or other inconsistencies. All the malpractice cases cited were actual, true life cases. The state locations of some have been changed to protect privacy and confidentiality. Any slights to persons or organizations are unintentional.

PART I – How to find out if you were the victim of malpractice.

Who Can File a Lawsuit

Your aunt, who raised you, has been seriously injured by negligence in a hospital. Her doctor told you there was flagrant malpractice and hinted that something should be done about it. One of the nurses, who took care of your aunt, confirmed that her injuries were the result of neglect, and other patients on the same floor have offered to be your witnesses. Your aunt is too weak and befuddled to file a lawsuit herself, and she has no children or they are far away and could not care less. Can you file a lawsuit on your aunt’s behalf to help her obtain compensation for her injuries?

No, because you do not have what lawyers call standing. You must have a direct interest in the case, which is to say that you must have suffered some physical injury, emotional injury, or financial loss. No matter how bad the malpractice, or how much you love the injured person, you cannot sue unless you were the victim or the legal guardian of a victim. If your aunt is still alive, she can file a lawsuit, or a lawyer can do it for her. If she dies, then either her nearest relative or the administrator of her estate must bring the lawsuit.

The person who files the lawsuit must be someone with a direct interest. For instance, if your aunt lived with you, and you will be burdened with huge nursing and medical expenses as a result of the malpractice, you may also sue on your own behalf. The rule is that the victim must bring the lawsuit if he or she is an adult, alive, and mentally competent. If the victim is a minor, or someone in a permanent coma, the lawsuit can be brought by a parent or a guardian. If the victim has died, it is usually brought by the administrator of the estate, who is appointed by the Court. If there is no administrator, as in the case of an infant, your lawyer will file a petition with the Court to have an administrator appointed to protect the interests of the infant or incompetent person, or the heirs of someone who has died.

Unless you were injured or suffered a financial loss, or the injured was a member of your immediate family or someone legally entrusted to your care, you cannot file lawsuit. Only the injured person, or someone who is legally empowered to act for him, can file a lawsuit. If there is any question, your attorney will decide who is the proper person to bring the lawsuit.

To get back to your aunt, if you are the only available relative but cannot sue, your lawyer may petition the Court to have you appointed as her guardian, so you can make a claim on her behalf.

Some people you might not expect can sometimes file a lawsuit. In general, any person who has been injured, or suffered a loss as a direct result of the malpractice, can sue or join with someone else in suing. For instance, a wife may join her husband in suing if medical malpractice has rendered him impotent and deprived her of his services and companionship. A parent may sue for loss of anticipated support from a child, who has been permanently disabled or killed.

The Rule Is: You have to be (a) the injured person, or (b) someone who can legally act for that person if he or she is dead, insane, or a child, or (c) a person who will suffer some loss or damage as a consequence of the injury to the patient.

One special category is for people who have suffered a severe emotional upset from seeing the person injured. In a Michigan case, a man was severely injured in a car crash and died as a result of malpractice in the hospital ER. His fiancée, who was in the car but not injured, was in the ER and watched as he choked to death. Understandably, she became hysterical and went into a deep depression, during which she attempted suicide and required extensive psychiatric care. She could not bring a lawsuit for her fiancé’s death, because they were not married, but she sued and won an award for her own emotional trauma.

The requirements for filing a lawsuit for emotional distress are different in each state. In some states you have to be a close relative and have actually witnessed the malpractice. In other states, just the knowledge that your relative was injured is enough. Some states may require proof of a serious, emotional upset, such as psychiatric treatment or confinement in a hospital. Some states may accept your testimony that you were upset. The type of malpractice also has an effect. If the doctor’s conduct was outrageous enough to offend the average juror, they may not require such proof at all.

The rule Is: Do not rely on your unsupported word that you were deeply disturbed by the doctor’s malpractice. If you are going to claim emotional damages, you will need to consult a psychiatrist or psychologist to testify that your emotional upset was genuine and serious enough to require treatment best online casinos au reviews and warrant some compensation.

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