Medical malpractice is the result of a health care provider’s failure to provide the expected standard of care. Doctors who cause harm through their mistakes, ignorance, negligence, lack of skill and misdiagnosis may be found liable to harmed patients in the form of monetary damages.
The medical profession brings health and hope to millions of Americans every day; however far too many are injured or killed due to medical mistakes. In November 1999, the Institute of Medicine (IOM) released a report estimating that as many as 98,000 patients die each year as a result of medical errors in hospitals. Compound this number with the unreported mistakes made in other healthcare settings (physicians’ offices, urgent care centers, nursing homes, pharmacies and home care) and the magnitude of medical malpractice becomes staggering. In addition to the high-costs of medical mistakes in terms of lives and quality of life, our nation pays an estimated $17 billion per year in costs due to preventable errors. As a general rule only a small percentage of malpractice is ever reported or results in a lawsuit.
In legal terms, healthcare professionals are only required to give a standard of care that is ordinary or normal in relation to similarly situated professionals. When a physician is determined to be negligent, it means that he or she has failed to use the same degree of skill and learning, under the same or similar circumstances, that are used by other members of the medical profession. Some of the most common ways that medical malpractice occurs is through failure or errors in timely diagnosis and ordering appropriate treatment, ordering necessary tests and proper medication, consulting with specialists and surgical procedures.
Although there are all types of malpractice claims, the leading types of malpractice claims include:
Birth defects or injuries:
A birth defect is an anomaly in the baby’s body that causes mental or physical disabilities. There are thousands of types of birth defects. Sometimes these defects even lead to death. While many defects are caused by the environment or are genetic and unavoidable, some are caused by a doctor’s negligence. These are more commonly known as birth injuries.
While babies are delivered and born every day, sometimes complications occur. Most babies survive minor complications because nurses and doctors are there monitoring the baby and ready to step in if the baby’s health is faltering. So when a baby is stuck or suffering from fetal distress and medical staff is not available to step in and help, the baby could die. If the baby does survive, he or she could be born with birth injuries. Bone fractures, hemorrhaging, spinal cord injuries, paralysis and cerebral palsy are common conditions caused by doctors who fail to properly monitor an expectant mother in labor.
Hospital, physician, and nursing negligence:
Doctor negligence is just one element of a medical malpractice claim. Negligence is used to determine fault, and it refers to the fact that the doctor failed to do something and this failure deviated from the acceptable standard of care. Just because a doctor was negligent does not automatically mean that a patient has a medical malpractice claim. The negligence must have caused an injury to the patient, who must have suffered damages as a result.
If a medical staff member does not treat a patient in a way that meets the norms of the medical community, then the patient has received substandard care. What does this mean? This may involve performing a certain test or prescribing a specific medication. Nurses, doctors and other staff have a duty to provide patient care that meets standards. That is, if a different doctor with the same skill and background were to provide care to this patient, what would he or she have done? If the doctor did not do his or her duty, then doctor negligence comes into play.
This refers to a doctor incorrectly diagnosing you with an illness. This actually happens quite often, especially in the emergency room. Also common are cases where a patient ends up having a rare disease or even has a very common one with nonspecific symptoms. Cancer and heart attacks are most commonly misdiagnosed because people tend to experience different symptoms. Misdiagnosis is a serious medical error because the patient is not getting proper treatment. As a result, the patient’s condition worsens and often leads to death.
Even competent doctors make mistakes from time to time. Therefore, a misdiagnosis in itself is not enough to prove that the doctor was negligent. It’s what the doctor did or did not do to arrive at the diagnosis. If the doctor was very thorough, took the proper tests and asked about the patient’s medical history but still misdiagnosed the patient, then the doctor may not be charged with medical malpractice. A doctor who spent little time with the patient and made a quick diagnosis without testing could face charges, however.
If the medical provider is found negligent and you successful prove your malpractice case, then you are entitled to recover “damages.” Damages are intended to help you return to the condition you were in prior to the injury. There are several forms of damages that you may recover in a medical malpractice award – economic (for lost wages or medical expenses), non-economic (for pain and suffering), or punitive (to punish reckless behavior) damages. You may also receive compensation for future medical expenses and loss of future earnings. Punitive damages occur only in rare cases when it is proved that the medical practitioner had malicious intent. Medical malpractice claims are one of the most difficult areas of litigation, since the negligent action must be documented and proven within specific guidelines. Therefore, it is important to seek counsel for adequate representation in a malpractice case.
Our Advice: Medical Malpractice
Ten point guide if you a victim of medical malpractice
- You or a family member should obtain the names and titles of all medical staff at the hospital or doctor’s office where you believe you were not properly cared for.
- Document in writing your complaints for yourself and if an error or departure from good and accepted medical practice has occurred submit your complaint to the Hospital Patient Advocate or memorialize the complaint in writing to the doctor. For example, if you had surgery on an incorrect body part, file a complaint in writing with the hospital.
- Never sign a Discharge Summary or other paperwork that contains incorrect information.
- Note the identity and contact information of any person claiming to have witnessed the events of malpractice. If possible get them to write down on a piece of paper what was done wrong so that you can “show it to your private physician.”
- Obtain a complete copy of your hospital and medical records including all diagnostic films to avoid delay in having your case evaluated.
- Seek immediate medical attention for your injuries caused by the incompetent medical care. Seek competent medical care from other physicians who can treat your condition properly and document the errors of prior physicians. In your patient intake forms you should document your complaints about yourself or your family member who has been improperly cared for if they cannot write the information themselves.
- Ask staff at the hospital or doctor’s office if the complaints you have are common and if other patients are similarly mistreated or not cared for properly. If so document the identity of the persons confirming the complaints. Get names of other patients who have similar complaints.
- Keep copies of all billing records and obtain a copy of your complete hospital or doctor’s bill to confirm what treatment was provided to you and what was billed for because there may be inconsistencies in the billing entries.
- Seek immediate medical attention for your injuries. Often insurance companies will disclaim responsibility for injuries when they are not properly reported, documented or treated.
- File a complaint with the New York State Department of Health or the Office of Professional Medical Conduct documenting the medical malpractice if the same is clear.