According to the Journal of the American Medical Association, medical malpractice is the third leading cause of death in the United States, right behind heart disease and cancer. A recent Johns Hopkins study reported than malpractice kills more than 250,000 people a year and other reports place the number higher than 400,000 a year. Yet more than 70% of medical malpractice claims are dropped, denied, or dismissed after the initial stages.
Before initiating a malpractice claim, it’s good to know why those claims are most often dismissed. In Part I of this article, we’ll discuss the most common categories of medical malpractice claims and the legal requirements for a malpractice suit. In Part II, we’ll discuss the most common pitfalls found in medical malpractice claims and why they may fail in court.
Types of Medical Malpractice
Most malpractice claims fall into one of six categories: a misdiagnosis, delayed diagnosis, failure to treat, surgical errors, birth injuries, and medical product liability.
A misdiagnosis is one of the most common malpractice claims. It occurs when a physician examines a patient but fails to diagnosis the patient’s illness or diagnoses the patient with the wrong illness. It may qualify as malpractice because it prevents the patient from receiving necessary treatment or, in the case of a healthy individual improperly diagnosed with an illness, results in unnecessary treatment. Not all misdiagnoses qualify as malpractice, however. Malpractice occurs if the physician fails to do what other physicians would do in a similar situation, and the patient is harmed as a result.
2. Delayed Diagnosis
A delayed diagnosis is similar to a misdiagnosis because the delay in diagnosing a patient immediately may allow their condition to worsen. To qualify as malpractice, the physician must have failed to evaluate the patient as completely as other physicians would in the same treatment situation. For example, if a physician failed to order a necessary test or misinterpreted the test results at first.
3. Failure to treat
At times, a doctor may arrive at the correct diagnosis, but fail to order the proper treatment. A physician might also release a patient too soon, fail to refer the patient to a specialist, or neglect to order proper follow up care. Medical providers may “fail to treat” a patient if they have a large case load with too many patients to evaluate.
4. Surgical errors
Surgical errors can include: performing unnecessary surgery; performing the wrong surgery; damaging tissue, nerves, or organs during surgery; using surgical instruments that aren’t sterile; using the wrong amount of anesthesia; leaving medical equipment inside the patient during surgery; and failing to provide adequate post-surgical care. Contrary to popular belief, signing a consent form with the risks of a surgical procedure does not mean that a patient can’t sue for malpractice. Just because there is a risk of death with a particular procedure does not mean that the surgeon can perform negligently with no recourse for the patient harmed. Particularly since surgical errors can have a significant impact on a patient’s quality of life.
5. Birth injury
The birth of a baby should be a joyous time. That’s why birth injuries can be particularly devastating. These injuries can occur if the mother received inadequate prenatal care from her medical provider or during childbirth. If the child or mother is injured during birth and those injuries were preventable, medical malpractice may have occurred.
6. Medical Product Liability
When medical devices don’t work as promised, they can injure patients. If the manufacturer knew or should have known that a medical device was faulty or poorly designed, they should be liable to the victims.
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The Elements of a Medical Malpractice Claim
There are some basic requirements for a successful malpractice suit that every claimant must show. A lawsuit must demonstrate that a provider or doctor/patient relationship exists and: (1) negligence of the health care provider, presented by a medical expert; (2) that the provider’s negligence caused an injury to the patient; and (3) that the injury led to specific damages. While the presence of a provider/patient relationship is usually pretty clear cut, the other elements of a malpractice claim are not so straightforward.
Not every poor outcome of medical treatment constitutes malpractice. Rather, showing negligence on the part of the health care provider is the heart of a malpractice claim. In most states in the U.S., the claimant must show that the provider caused harm in a way that a competent provider under the same circumstances wouldn’t have. A provider must practice in a reasonably skillful and careful manner; he doesn’t have to be perfect.
While proving negligence is very important to a malpractice claim, the claimant must also show that the physician’s negligence actually caused an injury to the patient. Many malpractice claims involve patients who are already sick or injured and it can be difficult to show that the doctor’s actions, rather than the underlying illness or injury, actually caused the harm to the patient. The suit must demonstrate that it is “more likely than not” that the doctor’s negligence caused the injury.
Finally, a claimant must show that the injury caused specific damages. It’s not enough to show that the provider didn’t perform to the standards of his profession; the patient must show a specific harm. Claimants can generally sue for things such as: physical pain, mental anguish, lost wages or earning capacity, and additional medical bills.
Special Requirements for a Malpractice Claim
In addition to the elements of a medical malpractice claim, these cases must meet some additional requirements, such as:(1) the statute of limitations, (2) expert testimony, (3) special notice, and (4) the medical malpractice review board.
1. Statute of Limitations
Medical malpractice claims must be brought quickly after an injury occurs. In most states, the claimant must bring suit within two years of the negligent act, or within two years of when the patient should have discovered the injury with reasonable due diligence. Because this time period varies from state to state, it’s important to consult an attorney as soon as possible if you believe that you’ve been injured by medical malpractice.
2. Expert Testimony
Medical malpractice claims require the testimony of a medical expert, as well as a written statement accompanying the claim, to discuss the appropriate standard of medical care and how the care the claimant received deviated from that standard. This expert testimony is also necessary to establish that it is “more likely than not” that the claimant’s injury was caused by the health care provider’s negligence.
3. Special Notice
In many states, you must send a special notice to the medical providers involved in your claim with information about the allegations and the other providers involved. In some states, this notice must also be accompanied by a statement from a medical expert. Again, the requirements of this notice vary from state to state, so it’s important to contact an attorney as soon as possible about your malpractice claim.
4. Medical Malpractice Review Boards
Many states in the U.S. now require that medical malpractice claims first pass through a medical review board before they can be filed in court. These boards hear arguments and testimony, allow both parties to present evidence, and decide whether medical malpractice actually occurred. While the boards aren’t generally allowed to award damages, their findings are admissible in court.
As you can see, medical malpractice claims are nuanced and complicated. A successful claim requires extensive legal knowledge and the attention to detail of an experienced medical malpractice attorney.In Part II of this article, we’ll discuss the most common reasons why medical malpractice claims fail.
If you believe you or a loved one have been harmed by medical malpractice, call us today. The experienced malpractice attorneys at the Underwood Law Office can help. Our McKinney, Texas law firm serves all of Dallas and Fort Worth, including McKinney, Frisco, Plano and Allen. Our Huntington, West Virginia attorney office serves all of West Virginia.
For both offices, call our toll-free number 844.UNDERWOOD (844.863.3796) for a free consultation. You may also send us an email. Se habla espanol.