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Juries see a medical malpractice or a dental malpractice lawsuit not as a contest between the doctor and his injured patient, to be divided on strict principles of right and wrong, like a criminal trial. Jurors are concerned with finding ways and funds to compensate the victims of malpractice.

Of course, the concern of jurors will not do any good, if it does not result in adequate compensation for your injuries and losses. Luckily, there is the equivalent of a billion dollar malpractice trust fund that has been established for your protection and compensation.

Judgment Proof Doctors

Doctors carry malpractice insurance for their own protection. In the 1970’s the cost of malpractice insurance rose dramatically. The reaction of many doctors was to reduce their insurance premiums by carrying less insurance or going bareback, meaning they had no malpractice insurance at all. That created the risk that a successful lawsuit against them could result in a levy against their personal wealth. So, doctors set up legal dodges, such as putting all their assets in the names of their wives or children, or setting up corporations or trust funds, which were protected from malpractice judgments. A court award or judgment is just a piece of paper if you cannot enforce it, and many victims of malpractice found that they could not obtain justice through the courts.

Plaintiffs discovered that the doctors who injured them had no insurance and were Judgment Proof, meaning plaintiffs could not enforce court judgments when they won. Plaintiffs then began suing the hospitals, where the malpractice occurred, under the legal theory known as Joint and Several Liability. Hospital insurance premiums soared. Since many hospitals are financed largely by public funds, the states and municipalities found themselves having to spend large sums to care for severely-injured malpractice victims of judgment-proof doctors and for hospital insurance.

Mandatory Malpractice Insurance

As a result, today all hospitals and health plans require doctors to carry adequate malpractice insurance, in order to have a staff appointment and treat patients in the institution. Many states have also started to institute mandatory malpractice insurance requirements to obtain licensure.

The requirement for mandatory malpractice insurance by states and hospitals is not for the doctors’ protection; they can do that for themselves. It is a billion dollar malpractice trust fund that has been created for your protection and compensation. If you can show that you were injured by someone’s negligence, you are entitled to be compensated by this fund.

Thousands of patients suffer, due to malpractice, and do not get the compensation they deserve. If you are a victim of malpractice, or your client is a victim of malpractice, contact JD.MD, Inc., today at 800-225-5363. We can provide you with an initial case evaluation or an expert’s opinion.

Concealment and Deceit

These are specific forms of disability.  A doctor delivers a baby and causes a brain injury; he knows that he can be sued.  So, he alters the medical records, deletes references to what happened, and

deliberately misleads the parents into thinking their child was brain damaged for some other reason.

You can understand the doctor’s feelings, even if you cannot sympathize with his actions.  It is a temptation to head off a major lawsuit that will cause his medical malpractice insurance premiums to skyrocket, just by making a few judicious entries in the medical records and some soothing statements to the parents.  Or, a doctor sews up an instrument inside a patient and when asked about it lies and says that all the instruments were accounted for, hoping to string the patient along until the time limit for a medical malpractice lawsuit has run out.

These actions would toll the statute of limitations until the concealment or deceit is discovered.  However, the doctor has to do more than just keep quiet and not volunteer any information.  No doctor is going to come right out and tell you that he committed medical malpractice.

You have to show there was active and deliberate concealment or deceit by the doctor or the hospital, and that it was designed to keep you from learning you had been the victim of malpractice.  Failure to tell you, or giving you an explanation that makes him look good, is not sufficient reason to sue.  The doctor has to actually try to mislead or deceive you by altering medical records, lying about what happened, or otherwise falsifying the information you receive.

Foreign Object

This means that some foreign object, a sponge or surgical instrument, was closed up inside your body without you knowing it.  The clock does not start running until you detect it or should have detected it.  For example, a surgical clamp or needle can stay inside your body for years without causing any trouble that would alert you to the fact it is there.  A broken surgical needle can migrate around your chest or abdomen for years and cause strange symptoms without the victim realizing what is causing them.  On the other hand, a gauze sponge in your abdomen, or dye injected into your spinal column, will probably cause a lot of trouble almost immediately.

In a New Hampshire case, the doctors committed medical malpractice by failing to deliver the entire placenta after the birth of a baby.  That resulted in the patient having to undergo a hysterectomy.  The doctors committed further malpractice by sewing up a gauze sponge inside the patient.  The sponge caused serious infections over the next two or three years, but the same doctors, still treating her, either did not know or did not tell her what it was.  She finally became so ill that she went to a hospital in Boston where the sponge was found and removed.  But, by that time, it was too late, and she died leaving three orphans.

When her family filed a

lawsuit, the doctors’ lawyers claimed the case was over the time limit, because the deceased lady and her family should have known something was wrong much earlier.  But, the court held that her confidence in her doctors meant that the statute of limitations was tolled until the sponge was discovered and removed in Boston.  If the doctors had advised doing an exploratory operation to find the cause of the trouble, and she had ignored that advice for more than two years, it might have been a different story.

The Rule Is: No patient can be criticized for continuing to have blind faith in a doctor even though he or she may have serious doubts about the doctor’s competence or performance.  It is not a defense to a charge of medical malpractice, to say the patient should have suspected something was wrong and consulted another doctor.  The doctor is the expert; it is his or her duty to refer the patient to another doctor, if referral is indicated.

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.

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.

Stale Cases

You knew you were the victim of malpractice but did not know what to do. You were so shocked and depressed that you kept it to yourself, or like many people, you hated the thought of getting involved in a lawsuit and

waited three or four years before deciding to go ahead and consult a lawyer. It may be too late, and you may be barred from filing your lawsuit. It is called the Statute of Limitations and applies to you if you do not file your lawsuit within the prescribed time. You will be forever barred from suing.

The time limit is generally two to three years from the Date of Discovery, which is the date on which you discover, or should have discovered, that you were the victim of malpractice. Most states grant extensions for cases involving minors, mental patients, and x-ray treatment. The statutes of limitations are different for each state, very complex, and constantly being changed.

The Rule Is: If you are in doubt about the time limit in your case, consult a lawyer.

In a Delaware case, a Georgia man suffered a broken rib on a construction site. When he went to the hospital, the x-ray showed a surgical instrument that had been left in his abdomen by a surgeon in Delaware 10 years before. He won his case, because there was no way he could have suspected the instrument was there. The fact that he had not discovered it Tolled the Statute, which is a legal way of saying that it stopped the clock.

The second reason for not delaying is that people die or move away; memories fade; records become lost or mislaid; and it becomes more difficult, or even impossible, for you to get the facts you need to prove your case.

The third reason is that wounds heal, scars fade, and stiff joints limber up, so that your injuries become less impressive with the passage of time.

Fourth, it may be much more difficult, or impossible, for you to collect if the doctor has died in the meantime. There is a legal rule in many states called The Dead Man’s Rule, which means you cannot say the doctor said or did something if he is not available to refute it and defend himself. It could be used to prevent you from bringing in the necessary testimony to win your case.

Furthermore, a lot of doctors have what is known as Claims Made malpractice insurance policies, which only cover claims actually filed while the policy is in force. If your lawsuit is filed after the doctor dies or retires and his insurance lapses, there may not be any money to pay you, even if you win.

Finally, many jurors will ask themselves why you have delayed so long in asking for relief. If you think you have been the victim of malpractice, do not sit on your rights. Consult a lawyer.

Plastic Surgery

Juries are sympathetic to people who have been disfigured or injured through no fault of their own and made worse by Plastic Surgery. However, outside of localities where cosmetic surgery is common, juries do not sympathize with people who have surgery done for reasons they consider frivolous. The average jury is composed of ordinary people, who work for a living. The idea of someone spending thousands of dollars just to look better, and then complain because the result was not as good as expected, do not move the average juror to tears.

Cosmetic Plastic Surgery, which is done for vanity, is unnecessary to the patient’s health. The surgeon may do a selling job to persuade the patient to go through with it, often just to get the surgical fee, which can amount to thousands of dollars for an hour’s work doing a “nose job.” In that case, it is a different matter. You can sometimes get around the difficult job of proving malpractice and file a suit for breach of contract. The surgeon persuaded you to submit to the expense, suffering, and risk of the operation on the direct or implied promise that you would look and/or feel better. If he failed to deliver, you can probably get into court, no matter how many consent forms you signed or how many pamphlets he gave you disclaiming any promises or guarantees. Juries tend to view those disclaimers as sharp practices and ignore them.

Dentistry

The trouble with suing a dentist is that, even if you win, you may not receive enough to make it worthwhile. That is because most jurors have had dental work and know what wonders modern dentistry can accomplish. Many people have cosmetic dentistry to make their teeth look perfect. Neither the wearer or anybody else can tell them from the real thing. As a result, a dentist can damage your teeth, and the case is not worth very much. And, it is not much good complaining about the pain and suffering you endured, since every juror knows that pain and suffering can occur with normal dental treatment.

The exception is when a dentist causes injuries such as brain damage or death due to anesthesia; failure to give prophylactic antibiotics to patients with rheumatic heart disease; infection that spreads to other parts of the body; or nerve injuries. A New Jersey man obtained a $400,000.00 settlement from a dentist who failed to diagnose cancer of the mouth until it had spread and required disfiguring surgery of the face and neck.

Stale Cases

You knew you were the victim of malpractice but did not know what to do. You were so shocked and depressed that you kept it to yourself, or like many people, you hated the thought of getting involved in a lawsuit and

waited three or four years before deciding to go ahead and consult a lawyer. It may be too late, and you may be barred from filing your lawsuit. It is called the Statute of Limitations and applies to you if you do not file your lawsuit within the prescribed time. You will be forever barred from suing.

The time limit is generally two to three years from the date of discovery, which is the date on which you discover, or should have discovered, that you were the victim of malpractice. Most states grant extensions for cases involving minors, mental patients, and x-ray treatment. The statutes of limitations are different for each state, very complex, and constantly being changed.

The Rule Is: If you are in doubt about the time limit in your case, consult a lawyer.

In a Delaware case, a Georgia man suffered a broken rib on a construction site. When he went to the hospital, the x-ray showed a surgical instrument that had been left in his abdomen by a surgeon in Delaware 10 years before. He won his case, because there was no way he could have suspected the instrument was there. The fact that he had not discovered it Tolled the Statute, which is a legal way of saying that it stopped the clock.

The second reason for not delaying is that people die or move away; memories fade; records become lost or mislaid; and it becomes more difficult, or even impossible, for you to get the facts you need to prove your case.

The third reason is that wounds heal, scars fade, and stiff joints limber up, so that your injuries become less impressive with the passage of time.

Fourth, it may be much more difficult, or impossible, for you to collect if the doctor has died in the meantime. There is a legal rule in many states called The Dead Man’s Rule, which means you cannot say the doctor said or did something if he is not available to refute it and defend himself. It could be used to prevent you from bringing in the necessary testimony to win your case.

Furthermore, a lot of doctors have what is known as Claims Made malpractice insurance policies, which only cover claims actually filed while the policy is in force. If your lawsuit is filed after the doctor dies or retires and his insurance lapses, there may not be any money to pay you, even if you win.

Finally, many jurors will ask themselves why you have delayed so long in asking for relief. If you think you have been the victim of malpractice, do not sit on your rights. Consult a lawyer.

Plastic Surgery

Juries are sympathetic to people who have been disfigured or injured through no fault of their own and made worse by Plastic Surgery. However, outside of localities where cosmetic surgery is common, juries do not sympathize with people who have surgery done for reasons they consider frivolous. The average jury is composed of ordinary people, who work for a living. The idea of someone spending thousands of dollars just to look better, and then complain because the result was not as good as expected, do not move the average juror to tears.

Cosmetic Plastic Surgery
, which is done for vanity, is unnecessary to the patient’s health. The surgeon may do a selling job to persuade the patient to go through with it, often just to get the surgical fee, which can amount to thousands of dollars for an hour’s work doing a “nose job.” In that case, it is a different matter. You can sometimes get around the difficult job of proving malpractice and file a suit for breach of contract. The surgeon persuaded you to submit to the expense, suffering, and risk of the operation on the direct or implied promise that you would look and/or feel better. If he failed to deliver, you can probably get into court, no matter how many consent forms you signed or how many pamphlets he gave you disclaiming any promises or guarantees. Juries tend to view those disclaimers as sharp practices and ignore them.

Dentistry

The trouble with suing a dentist is that, even if you win, you may not receive enough to make it worthwhile. That is because most jurors have had dental work and know what wonders modern dentistry can accomplish. Many people have cosmetic dentistry to make their teeth look perfect. Neither the wearer or anybody else can tell them from the real thing. As a result, a dentist can damage your teeth, and the case is not worth very much. And, it is not much good complaining about the pain and suffering you endured, since every juror knows that pain and suffering can occur with normal dental treatment.

The exception is when a dentist causes injuries such as brain damage or death due to anesthesia; failure to give prophylactic antibiotics to patients with rheumatic heart disease; infection that spreads to other parts of the body; or nerve injuries. A New Jersey man obtained a $400,000.00 settlement from a dentist who failed to diagnose cancer of the mouth until it had spread and required disfiguring surgery of the face and neck.

Psychiatry

Since most psychiatrists just sit and listen, or talk to their patients, they do not get into much trouble. Also, some psychiatric patients make poor witnesses and have long histories of abnormal behavior, so it is difficult to prove the psychiatrist made them worse. However, there are three important exceptions:

1. Sexual relations with patients – When sex therapy began, some psychiatrists used it as an excuse to have sex with their female patients. To add insult to injury, they would often charge for these sessions and would sometimes criticize the patient for being inadequate in bed. Some psychiatric societies have tried to justify this atrocious behavior as legitimate therapy. But, the public and the courts do not buy it. The psychiatrist who does it can lose his license, as well as the malpractice case, and may also face criminal charges. Not only is this so-called treatment unethical, but it is totally ineffective and usually makes the patient’s emotional problems worse.

2. Suicide – When a psychiatrist ignores warnings that a patient may be suicidal and fails to take precautions to prevent it, you have a case. A suicidal patient must be hospitalized in a properly staffed facility. In New York case, a suicidal man was admitted to a psychiatric hospital. The staff took all the usual precautions and removed everything from his clothing and room that could be used to commit suicide. But, they let him wander in the corridor where he found an unlocked broom closet and hanged himself with the electric cord of a floor polisher. The family sued and won.

3. Patients dangerous to others – A psychiatrist is supposed to guard his patient’s secrets. In the past, they would not even warn someone that a patient was threatening to kill. A California case, in which the psychiatrist was held liable because he did not warn a woman that his patient was homicidal and promising to kill her, changed all that. Now, most states hold a doctor responsible if he fails to warn the intended victim of his dangerous patient’s threats.

However, the psychiatrist is not responsible to everybody, only to people who he has reason to believe are threatened by his patient. The analyst of a disturbed patient who fired a shotgun in a crowded restaurant was cleared of any liability for failure to warn the victims, because he had no warning his patient was going to kill and did not know who the victims would be. In another landmark case, the court held that a psychiatrist had no duty to warn the parents of his suicidal patient that she intended to kill herself.

The Rule Is: A physician treating a patient who is dangerous to others is only liable if he knows the patient is dangerous and who is in danger. He has no responsibility to unknown third parties or for harm the patient does to himself.

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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