Medical Malpractice
Medical malpractice is negligence committed by a
professional health care provider--a doctor, nurse, dentist, technician,
hospital or hospital worker-whose performance of duties departs
from a standard of practice of those with similar training and experience,
resulting in harm to a patient or patients. Most medical malpractice
actions are filed against doctors who have failed to use reasonable
care to treat you. The profession itself sets the standard for malpractice
by its own custom and practice. Historically under the so-called
"locality rule," a doctor was required only to possess
and apply the knowledge and use the skill and care that is ordinarily
used by reasonably well-qualified physicians in the locality, or
similar localities, in which he or she practiced. But today the
trend is toward abolishing such a rule in favor of a national standard
of practice.
Hasn't there been talk about changing the
way that malpractice cases are handled?
Yes. Especially in the 1980s, doctors and members of the insurance
industry said there was a "malpractice crisis," with spiraling
insurance premiums and unreasonably high jury verdicts. As a response
to that, some states passed laws capping damage awards, limiting
attorneys' fees and shortening the time period in which plaintiffs
could bring malpractice suits. Some states instituted no-fault liability
for malpractice claims, or developed arbitration panels to hear
medical malpractice claims before they could be filed in court to
be determined by a judge or jury
Other "tort reforms" are often discussed,
including reducing recovery for "pain and suffering" in
malpractice lawsuits and reducing damages to take into account payments
from insurance and workers' compensation.
What do I do if a think I have a medical
malpractice claim?
Talk to a lawyer who specializes in such work. Tell the attorney
exactly what happened to you, from the first time you visited your
doctor through your last contact with him or her. What were the
circumstances surrounding your illness or injury? How did your doctor
treat it? What did your doctor tell you about your treatment? Did
you follow your doctor's instructions? What happened to you? Answers
to these and other relevant questions become important if you think
your doctor may have committed malpractice. Like other personal
injury claims, the case will either be settled or go to trial, usually
before a jury.
How does a jury determine if a doctor's actions
were within the standards of good medical practice?
A jury will consider testimony by experts--usually other doctors,
who will testify whether they believe your physician's actions followed
standard medical practice or fell below the accepted standard of
care. In deciding whether your heart surgeon was negligent, for
example, a jury will be told to rely on expert testimony to determine
what a competent heart surgeon would have done under the same or
similar circumstances. A specialist, like a heart surgeon, is held
to a higher standard of care--that of a specialist--than would be
expected of a non-specialist.
Should You Stop and Help Someone in an Emergency?
Generally you do not have a duty to stop and help someone in an
emergency. The law says that if you did not cause the problem and
if you and the victim have no special relationship you need not
try to rescue a person. But states have passed so-called Good Samaritan
laws that excuse doctors--and sometimes other helpers--from liability
for negligence for coming to the aid of someone in an emergency.
In some states, if you injure someone while driving, you must help
that injured person, regardless of who was at fault. Some courts
look at the circumstances of the rescue. They say that if you know
someone is in extreme danger that could be avoided with little inconvenience
on your part, you must provide reasonable care to the victim. Of
course, you always are free to go voluntarily to the aid of someone
in trouble. But if you abandon your rescue efforts after starting
them, you may be liable if you leave a victim in worse condition
than you found him or her.
I signed a consent form before my doctor
performed surgery. What did it really mean?
It is common practice in hospitals for patients to sign a form giving
the doctor their consent, or approval, to perform surgery. In the
form, the patient usually consents to the specific surgery as well
as to any other procedures that might become necessary. Before you
sign it, your doctor should give you a full description of the surgery
and the risks involved, and the ramifications of not getting such
treatment. If you can prove that your physician misrepresented or
failed to adequately inform you of the risks and benefits before
surgery, your consent may be invalid. The only time the law excuses
doctors from providing such information is in emergencies or when
it would be harmful to a patient. But even if your doctor should
have secured your consent and did not, you still may not automatically
recover. You may still have to prove that, if adequately informed,
a reasonable person would not have consented to the surgery.
If the consent form is considered valid, can
I recover any damages in a malpractice action against my doctor?
Yes, you still may be able to recover damages. A consent form does
not release from liability a physician who did not perform the operation
following established procedures or who was otherwise negligent.
You may also have a claim that the surgery the physician performed
went beyond the consent you gave. Then the doctor might even be
liable for battery.
What if I'm just not satisfied with the results
of my surgery? Do I have a malpractice case?
In general, there are no guarantees of medical results. You would
have to show an injury or damages that resulted from the doctor's
deviation from the appropriate standard of care for your condition.
I got pregnant even though my husband had
a vasectomy. Can we recover damages?
Yes, you may be able to win a case. A number of negligence cases
have been permitted against physicians for performing unsuccessful
vasectomies or other methods of sterilization that resulted in unwanted
children. Courts increasingly allow a suit to be filed by the parents
of a child born as a result of wrongful conception or wrongful pregnancy.
Damages generally are limited to those associated with the pregnancy
and birth and do not extend to support of the child.
I don't think it was necessary for me to have
a cesarean section when I delivered my daughter. Is there anything
I can do about it?
Although most malpractice cases involving cesarean sections are
brought against doctors who did not perform them when they should
have, with resulting injuries to the mother or child, it is possible
for a woman to win damages against her doctors for unnecessarily
delivering her child by cesarean section. An expert would still
be necessary to state that in doing the cesarean section, the delivering
doctor deviated from the appropriate standard of care.
My doctor prescribed a drug for treatment
but failed to tell me it was part of an experimental program. What
can I do?
This is quite a rare circumstance, but your physician had a duty
to tell you that the drug was part of an experimental program. You
had the right to refuse to participate in it. You now may have grounds
for an action against your doctor.
May I recover medical and hospital bills from
someone who caused an injury to me even though my insurance company
has paid the bill?
Yes. However, if you do recover payment from the person who injured
you for those bills, some states require you to reimburse your insurance
company. In those states, the law does not allow you to get a double
recovery. Often the insurance policy contains a subrogation clause
that does not permit double recovery.
My aunt discovered that a sponge left in her
during an operation years ago was the source of stomach trouble.
May she still sue?
Like other personal injury cases, medical malpractice lawsuits are
subject to specific statutes of limitations (discussed earlier in
this chapter). Until recently, your aunt's suit may have been thrown
out of court. In many statutes, time limits on filing began when
the injury occurred--on the day of the operation. To alleviate such
a harsh--and final--result, many states today have altered their
laws, and the clock for filing a case does not begin to toll until
people discover that they have suffered an injury, or should have
discovered it. Even with the discovery rule, there are time limits,
known as statutes of repose, which limit the time within which to
file suit before or after discovery of the injury.
My father's job exposed him to asbestos. Now
he has lung disease. Is it too late to file a claim?
It may not be too late. Many people who suffered injuries from toxic
substances such as asbestos did not know at the time of exposure
that the compounds were harmful. As a result, some states have enacted
laws allowing people to file lawsuits for a certain amount of time
from the date when the lung impairment or cancer begins, rather
than from the date of exposure. A lawyer can tell you whether your
father still has time within the statutes of limitations applicable
in your state. In general, the area of workplace illnesses is covered
by workers' compensation (discussed earlier in this chapter and
in the "Law in the Workplace" chapter).
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