What is Medical Malpractice?
Medical malpractice can be generally defined as substandard treatment by a physician or other healthcare professional that directly results in physical or economic damages to the patient. "Substandard" care refers to care that violates normal medical practices. Therefore, there are three factors that must be present to prove medical malpractice: liability, damages, and a direct causal link.
To meet the requirement of liability, it must first be proven that a professional relationship existed between the patient and health care provider. This is rarely a problem. Proving substandard care can be difficult, however, depending on the nature of the violation. Inadequate care in and of itself does not amount to malpractice.
Injury, suffering or economic damages must be present and must be a direct result of the negligence. Many facets of medical care, including surgery, have inherent risks even with proper care. Unless negligence can be proven in such a case, a bad outcome alone is not grounds for malpractice.
Medical malpractice can take many forms. Some examples are failure to diagnose a life-threatening disease, errors made in medication, surgical errors, failure to provide proper follow-up care, prenatal or delivery room errors, and miscalculations with anesthesia. According to the Journal of the American Medical Association some 225,000 deaths annually (in the US) are attributed to medical malpractice, making it the third largest cause of death. About 82% of these are due to either adverse reactions that should have been anticipated to medications, or contracting infections while staying at a hospital. About 9% are caused by miscellaneous errors and another 9% by unnecessary surgery or medication errors.
Bringing a medical malpractice suit against a hospital employee can be more complicated than suits brought against private practitioners. Often, select members of a hospital staff are provided by private contractors. In that case the negligent party and the contractor are named in the suit, rather than the hospital itself. Exceptions do exist to this rule, as when a hospital has had prior warning about an employee.
HMOs (health maintenance organizations), by restricting medical care in order to avoid "unnecessary" expenses, are often targeted for cases of negligence if the care they refuse to approve results in serious injury or death. However, winning a case against a HMO is a difficult task at best. Many factors come into play including whether the health insurance is private or offered through an employee, and even whether the plaintiff is a federal employee or not.
When multiple parties have been affected by the same negligent party, it is often more efficient to bring a class action suit. Class action suits can name hundreds or even thousands of plaintiffs. Any award granted from a successful suit is distributed to the plaintiffs after the legal parties and court costs have been satisfied.
Different from medical malpractice is medical battery, the intentional violation of a patient's rights to direct his or her own care, as in the case of refusing treatment, either by advance decree or through a health-care proxy. No injury or negligence is necessary to find medical battery.
Laws governing medical malpractice, HMOs, and medical battery vary from state to state, and may entail additional or different criteria than presented here. This article is only intended to provide very general information and should not be taken as legal advice. Please consult a lawyer or firm that specializes in this area of law. Many such lawyers offer free initial consultations.
Can you sue one doctor in a teaching university, without mentioning the hospital in the suit? Will the patient be refused care after the suit is settled, if in his favor?
Medical battery happens more than we know. In December of 2010 I became very ill. I went to the and they kept telling me I was impacted. From December until February 2011, I was ill. I told the doctors to open me up and do an exploratory surgery to find the issue. After weeks and over a month my spouse, took me out of the hospital and took me down to the university hospital. I had malnutrition and three hernias.
If they had listened to me and done what I asked, I would not have to have a feeding tube put in and lost out on the fun times and other things that come with having to live with this.
I was on medications which I disliked taking to stop the muscle spasms and other medication for the pain. I now have the G-tube out but am still having issues with the site. I now have a hernia within the G-tube site, so now I'm back on spasm medications and having to pack the site as it has not closed after the G-tube was pulled two months ago.
My husband was having complaints of vision problems, numbness and dizziness. He saw a neurologist, who told him that there was nothing wrong. My husband died two weeks later of a massive stroke.
My DH presented to his doctor with extreme sensitivity in his pecs/behind his nipples. The doctor ordered an ultrasound. She said the results were negative for cancer. She didn't do any blood work and said it's probably a cyst that is too small to see. When it gets bigger they can do something about it.
His symptoms got worse and others started showing up. Her reply was for him to lose weight. Yesterday after several years of trying to lose weight, we find out he has a tumor on his pituitary gland that is putting pressure on his optic nerve. I think we have a case for negligence. His other symptoms are classic for his condition. His new doctor picked up on them immediately and sent us to a endocrinologist. Any thoughts.
I have a doctor i go to and two doctors in the office have prescribed me a mood stabilizer that has worked for me for years. I asked for it and they prescribed it.
My insurance wanted a "P.A." (prior authorization), and finally, after a month of trying to get my doctors office to send in the P.A., a month later they did and my insurance denied the P.A., saying the doc did not give enough info. Now they're telling me I will have to come back to the office to see another doctor (the original one moved to another location) because there is nothing in my file that says why I'm taking this medication and they don't know what to tell my insurance company as to why I need it?
So two doctors prescribe it but don't know why i need it. I have had to suffer more and more mood swings for the last four months, which are severe. i have had to suffer because the doctor does not know why they have prescribed me this medication.
Sneaker41-in order to make a medical malpractice claim the patient must prove that there was medical negligence. The patient must be injured as a result of the medical negligence and the lack of appropriate care caused further damage.
For example, if a person is displaying classic symptoms of diabetes and comes to seek help as a result the doctor would be considered negligent if he did not perform any blood tests in order to confirm that the patient had diabetes.
If this patient suffered further injury and went into a diabetic coma as a result of the injury which was the cause of the condition then there would be an appropriate medical malpractice case.
Sunshine31-While I agree with you on the definitions of compensatory and punitive damages, I have to say that many medical malpractice lawsuits can be petty and frivolous.
Such cases make medical malpractice insurance for doctors to be at very high levels. For example many gynecologists have left the practice altogether because of the high rates of insurance as a result medical malpractice litigation.
That is why there is a lot of talk regarding medical malpractice tort reform. A tort is a method of compensation for a lawsuit. Some Republicans in Congress seek to limit damages toward doctors.
This process is known as tort reform.The shortages in medical specialties are forcing many to consider this option.
When seeking a medical malpractice lawsuit there are two different types of damages that a patient can seek .These damages are called compensatory and punitive damages.
Compensatory damages results due to an injury because of the doctor’s negligent care. Compensatory damages seek to compensate the injured party with regards to bills, medications; rehab services, loss of income, and reduces future income.
Many states have a cap on these damages. This means that compensatory damages cannot exceed the cap limits for the state in which the law suit was sought. For example if a state had a compensatory damage limit of $1 million, then they compensatory damages cannot exceed $1 million.
The family can seek compensation from the doctor as a result of loss of companionship and affection. This is often referred to as the loss of consortium.
The other type of damage that a patient can seek is called punitive damages. Punitive damages are an additional reward that has sought to punish the doctor for grossly negligent behavior.
Punitive damages are rarely awarded because the doctor has to have a premeditated idea to harm or hurt the patient. This harm would result in punitive damages being awarded to a patient. There are usually no limits to punitive damages.
Very informative. Short and to the point, a format I can read and understand. Thank you for the information.
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