What Is Medical Malpractice?

In medical malpractice, a doctor or medical facility has failed to live up to its obligations, resulting in a patient’s injury. Medical malpractice is usually the result of medical negligence – a mistake that was unintentional on the part of the medical personnel.

Determining if malpractice has been committed during medical treatment depends on whether the medical personnel acted in a different way than most professionals would have acted in similar circumstances. For example, if a nurse administers a different medication to a patient than the one prescribed by the doctor, that action differs from what most nurses would have done.

Surgical malpractice is a very common type of case. A cardiac surgeon, for example, might operate on the wrong heart artery or forget to remove a surgical instrument from the patient’s body before stitching the incisions closed.

Not all medical malpractice cases are as clear-cut, however. The surgeon might make a split-second decision during a procedure that may or may not be construed as malpractice. Those kinds of cases are the ones that are most likely to end up in a courtroom.

The majority of medical malpractice lawsuits are settled out of court, however, which means that the doctor’s or medical facility’s malpractice insurance pays a sum of money called the “settlement” to the patient or patient’s family.

This process is not necessarily easy, so most people are advised to hire an attorney. Insurance companies do their best to keep the settlement amounts as low as possible. A lawyer is in a position to help patients prove the severity of the malpractice and negotiate a higher sum of money for the patient/client.

Lawyers generally work on “contingency” in these types of cases, which means they are only paid when and if a settlement is received. The lawyer then takes a percentage of the total settlement amount as payment for his or her services.

Different Types of Medical Malpractice

There are different kinds of malpractice cases that are a result of a variety of medical mistakes. Besides surgical errors, a few of these cases include:

Medical chart mistakes – In this case, a nurse or physician makes an inaccurate note on a medical chart that leads to more mistakes, such as the wrong medication being administered or an incorrect medical procedure being performed. This could also lead to a lack of proper medical treatment.

Improper prescriptions – A doctor might prescribe the wrong medication, or a pharmacist might fill a prescription with the wrong medication. A doctor may also fail to check what other medications a patient is taking, causing one medication to mix in a dangerous way with the other. Some pharmaceuticals are “contraindicated” for certain conditions. It might be hazardous, for example, for a heart patient to take a particular medication for an ulcer. This is why doctors need to know a patient’s medical history.

Anesthesia – These kinds of medical malpractice claims are usually made against an anesthesiologist. These professionals give patients medication to put them to sleep during an operation. The anesthesiologist usually remains in the operating room to monitor the patient for any signs that the anesthesia is causing problems or wearing off during the procedure, causing the patient to awaken too soon.

Delayed diagnosis – This is one of the most common types of non-surgical medical malpractice cases. If a doctor fails to determine that someone has a serious illness, that doctor might be sued. This is especially dire for cancer patients who need to detect the disease as early as possible. A wrong diagnosis can cause the cancer to spread before it has been detected, endangering the patient’s life.

Misdiagnosis – In this case, the physician diagnoses a patient as having a disease other than the correct condition. This can lead to unnecessary or incorrect surgery, as well as dangerous prescriptions. It can also cause the same injuries as delayed diagnosis.

Childbirth malpractice – Mistakes made during the birth of a child can result in permanent damage to the baby and/or the mother. These kinds of cases sometimes involve a lifetime of payments from a medical malpractice insurance company and can, therefore, be extraordinarily costly. If, for instance, a child is born with brain damage as a result of medical malpractice, the family might be awarded regular payments in order to care for that child throughout his or her life.

What Happens in a Medical Malpractice Case?

If someone believes they have suffered harm as a result of medical malpractice, they must file a lawsuit against the responsible parties. These parties might include an entire hospital or other medical facility, as well as a number of medical personnel. The patient becomes the “plaintiff” in the case, and it is the burden of the plaintiff to prove that there was “causation.” This means that the injuries are a direct result of the negligence of the alleged medical professionals (the “defendants.”)

Proving causation usually requires an investigation into the medical records and may require the assistance of objective experts who can evaluate the facts and offer an assessment.

The settlement money offered is often restricted to the amount of money lost as a result of the injuries. These losses include medical care costs and lost wages. They can also include “loss of consortium,” which is a loss of benefits of the injured patient’s spouse. Sometimes, money for “pain and suffering” is offered, which is a non-financial payout for the stress caused by the injuries.

Money for “punitive damages” is legal in some states, but this generally occurs only in situations where the negligence was extreme. In rare cases, a physician or medical facility is found to be guilty of gross negligence or even willful malpractice. When that happens, criminal charges may also be filed by the local authorities.

In examples of gross negligence, the health department might revoke a doctor’s medical license. This does not happen in most medical malpractice cases, however, since doctors are human and, therefore, all capable of making mistakes.

If the plaintiff and the defendant’s medical malpractice insurance company cannot come to an agreeable sum for the settlement, the case might go to trial. In that instance, a judge or a jury would decide the amount of money, if any, that the plaintiff/patient would be awarded for his or her injuries.

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Why Enforcing a Malpractice Cap Makes No Logical Sense

There are proponents in the medical field who want to keep a malpractice cap or malpractice limit on the amount of money that can be awarded in a medical malpractice lawsuit. Where in the world does this make any sense at all?

Much of this public outcry was sparked by the recent outbreak of hepatitis C in Las Vegas, where tens of thousands of patients at now-closed outpatient clinics were potentially infected with the virus due to shoddy and lax procedures used for injections.

So what the doctors seem to be saying is that they do not want to take responsibility for their mistakes and lax procedures, even though it caused pain, suffering and even death for some patients who came to them for treatment. So if you take your car to an auto shop and they put jet fuel in your gas tank due to negligence, where the engine blows up as a result, it is just an “oops” that you are supposed to overlook?

Doctors fear that the premiums for their malpractice insurance will go through the roof. I am sorry but I have no sympathy for that. If doctors are as professional as they are supposed to be and take reasonable care when they perform procedures, there should not be a reason for them to ever file a malpractice claim. But enforcing a cap on malpractice lawsuits only invites and encourages doctors to be lax and hospitals to cut corners in many areas where corners just cannot be cut in terms of patient care.

In this case, via the professional standards of just about anybody, the health care providers were grossly negligent, according to Bill Bradley of the Nevada Justice Association. To add insult to injury, in the 14 months since this outbreak occurred, not a single doctor’s license has been revoked. Doesn’t this really make a mockery of the whole system of malpractice?

The current state law supposedly “protects” doctors by limiting the amount of malpractice award to $350,000 if the plaintiff wins their case. But there is a bill in the legislature now that would remove that cap, as well as significantly increase the time period that a family has to file the malpractice lawsuit. While doctors argue that the costs of their malpractice insurance would skyrocket, putting such a low cap on malpractice awards could also be seen almost as condoning negligence in the medical field.

In past malpractice awards where gross negligence was proven in the courtroom, awards of 6 and even 7 figures was not and still is not uncommon. Each case is considered by its own merits and circumstances, and the judge rules according to the specifics of each individual case. Is that wrong? If a patient age 25 suffers from medical negligence and cannot work for the rest of his life, what is the amount of income he is now going to miss, as well as the severely reduced quality of life he will have with his family? The proposed cap does not even begin to address that with such a pittance, given that the situation was caused by gross medical negligence or incompetence.

It is your responsibility to prove medical malpractice if you have been a victim, but make sure you are aware of the malpractice caps as the law provides in your state.

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