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Posts Tagged ‘medical malpractice’
Thursday, June 30th, 2011
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.
Disability
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.
Tags: disability, legal disability, medical malpractice, medical malpractice case, medical malpractice lawsuit, mentally competent, statute is tolled, tolling the statute, victim of malpractice
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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, 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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Wednesday, January 19th, 2011
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.
Tags: adverse effect, confidential information, emotional damages, invasion of privacy, malpractice, medical expert witness, medical malpractice, psychological problems
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Thursday, January 6th, 2011
When you go to the doctor, you have the right to expect him, and his employees, to keep information about you confidential. If he leaks information about your medical condition, it can damage your business, personal, emotional life, and your relationships and standing in the community.
What if an employee of the doctor, or the hospital, leaks confidential information about you? The employer is supposed to take due precautions to see that his employees respect the confidentiality of what goes on in the doctor’s office, or the hospital, and do not “talk out of school.” They are responsible for their indiscretions, if they do. If your doctor’s secretary tells her husband that you have tuberculosis, and he spreads it around the community, you would sue the doctor.
What if you find out the doctor, or the hospital, took pictures of you, without your consent, while you were undressed, under anesthesia, or in some other embarrassing situation and have shown them at a medical meeting or allowed them to be published? What if they allowed some outsider to watch? All those things would be grounds for a lawsuit.
What if the doctor, or his employee, puts out a story that you have a disease that would expose you to discrimination, ridicule, or contempt in your community? That is known as defamation, and the doctor really has no defense. He is responsible, and you may not even have to show you suffered any actual damages. Like the New Jersey woman with breast cancer, your justifiable apprehension of repercussions is enough to justify an award or settlement.
Outrageous Conduct: Earlier in the blog, it was noted that mere bad manners and crude language do not constitute malpractice, and generally they do not. Probably the most common cause of unsuccessful lawsuits is resentment at unfriendly or unfeeling actions by doctors or nurses. But, there is an exception. If the conduct of the doctor or hospital employee is so outrageous or offensive by normal standards, that it seriously disturbs your peace of mind, and is directed at you or a close relative, you may have grounds for a lawsuit.
The Rule Is: What constitutes outrageous behavior depends on the individuals involved in each particular case. However, there is one requirement you must meet. The words or actions must have been deliberate and intentional.
Tags: defamation, invasion of privacy, medical malpractice, outrageous conduct, slander
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Thursday, November 11th, 2010
Nothing in medical malpractice is so misunderstood as mental distress and psychological injuries. We see newspaper accounts of people who have received awards for pain and suffering or emotional distress. A sympathetic jury has decided to compensate someone for their terrible and frightening ordeal, in addition to their financial loss. It is true that mental distress can bring awards, but it can also be very difficult to prove. Judges can set aside what they consider to be excessive awards for claims of mental suffering with no reasonable basis, and some states have put limits on the amounts juries can give for “pain and suffering.”
So, how do you receive adequate compensation for your pain and suffering? Just saying that you are suffering and very upset, or shedding a few tears, will not get you very far. You have to show that: you required psychiatric treatment, you lost your job, your marriage fell apart, or you suffered some other demonstrable loss.
The Rule Is: You have to show that you actually did receive a shock that would have profoundly disturbed the average juror, and you suffered some real disturbance in your personal, emotional, or business life.
Types of Emotional Distress
Personal Suffering: Because of a doctor’s malpractice, you have to undergo painful surgery or will spend the rest of your life in a wheelchair. You hurt every time you move or maybe you cannot move at all. That is usually self evident and easy to prove.
Disfigurement: This ranks with physical pain in its appeal to juries, provided it was due to a doctor’s negligence and not some other cause. But, if you have been disfigured by an accident or a disease like cancer, you will not get much sympathy, if you sue the doctor, who did his best to correct it. To make a strong case, you have to show two things:
1. You looked normal before his treatment, and your disfigurement was entirely due to the doctor’s negligence.
2. It is permanent and cannot be completely repaired by existing surgical techniques.
Fear and Apprehension: This comes from knowing that you are in danger of death or disability because of the malpractice. A New Jersey gynecologist failed to diagnose a woman’s breast cancer in its early stages, when the chance for cure was good. When the cancer was removed by another surgeon two years later, the chance of a fatal recurrence was much greater because of the delay. The court ruled that the woman did not have to show the cancer had come back as a result of the delay or that she had actually suffered any physical harm. The court said her justifiable fear of a fatal recurrence, and the increased chance of such an outcome, justified the award against the gynecologist.
Emotional Shock: This comes from seeing someone near and dear to you seriously injured or killed. If you witness malpractice, which results in the death or serious injury of a member of your immediate family, the shock you suffer may justify a claim. In most states, you must actually witness the event, although some states will let you file a claim if you can show a genuine, emotional upset just from hearing the news. Your lawyer will have to advise you as to the exact law in your state.
Tags: disfigurement, emotional shock, fear and apprehension, medical malpractice, mental distress, personal suffering, psychological injuries
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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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Thursday, September 30th, 2010
The courts in each state decide how much probability you have to show in order for the judge to let the jury decide your medical malpractice or dental malpractice case. In some states, you have to show that it was more likely than not (better than a 50% chance) that you would have gotten a different result. Other states only require you to show the malpractice was a substantial factor in producing the bad result and leave it up to the judge to decide what a substantial factor is in each case. In some states, you only have to show there was a remote possibility of a better result in order to get to the jury. A Texas lady won a case when she showed that she suffered anxiety because of a remote possibility of cancer resulting from a burn, and a Virginia man won a verdict for failure to diagnose his cancer of the esophagus, even though his chance of survival with the best treatment was only 9%.
The Rule Is: Your medical expert witness or dental expert witness should be able to testify that it is more likely than not (better than 50%) you would have received a better result, if you had not been the victim of malpractice. But, the Loss-of-Chance Theory only applies to the effects of malpractice and does not relieve you of the obligation of showing that the doctor committed a departure from good and accepted practice.
How Does This Affect Your Award?
While the possibility that your injury was due to other factors probably cannot be used as a defense by the doctor, it can be used in determining the amount of your award. For example, if the Virginia jury had decided the patient with cancer of the esophagus should get $100,000.00, the award would have been reduced to 9% or $9,000.00. If the court had decided the lady with breast cancer had only a 50% chance of success with early treatment, she would have received 50% of the award. Theoretically, the court will adjust the amount of the award in proportion to the probable effect of the malpractice on your injury.
In real life, it is rare for a jury to reduce the amount of its award much if the doctor was only 50% or 60% liable. As already explained, many courts and jurors see malpractice awards as Loss Allocation, which is another way of saying that they use whatever funds available to help people, who have been injured or suffered a serious loss through a physician’s or a dentist’s carelessness or neglect.
Tags: dental expert witness, dental malpractice case, loss allocation, loss of chance theory, medical expert witness, medical malpractice, remote possibility, substantial factor rule, victim of malpractice
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