Medical Malpractice

P R A C T I C E A R E A S - M e d i c a l M a l p r a c t i c e

Our lawyers are experienced in medical malpractice law and can help clients determine whether or not malpractice has occurred where someone or something is injured as a result of negligence or misconduct of individuals in the medical, dental and related fields.

Medical Malpractice cases may involve negligent diagnosis or delay in the diagnosis of an underlying disease or condition such as cancer, heart attack, stroke or infection. Medical Malpractice cases may also involve negligent or unnecessary surgical procedures or treatment, failure to obtain informed consent, negligent administration of medication or anesthesia, and the negligent failure to diagnose or treat problems or symptoms during pregnancy or birth.

Medical Malpractice may occur in many fields of medicine, including, but not limited to, Gastroenterology, Gynecology, Obstetrics, Radiology Cardiology, Dermatology, Emergency Medicine, Neonatology, Neurology, Surgery, Oncology, Opthalmology, Orthopedics, Pathology, Pediatrics, Plastic Surgery, Family Practice, Internal Medicine, General Practice and Urology.

Medical Malpractice and Other Forms of Medical Liability
What is medical malpractice?
Medical malpractice can be generally defined as negligence on the part of a physician, hospital or other health care professional which causes physical or emotional damage to that health care professional?s patient. Although medical malpractice is limited to negligence, which occurs in the course of providing medical, or health care, the basic legal issues involved in medical malpractice is the same as the legal elements in common negligence.

Medical malpractice is also defined as the failure of a medical professional to meet the standard of good medical practice in the area in which the medical professional practices. A medical professional may be a doctor, a nurse, a medical technician, or other health care provider. If the medical professional fails to meet the standard of good medical practice and harm results to a patient, the medical professional may be liable for any resulting damages. In the case of a doctor who is a medical specialist, the standard of care is determined by the standard of good medical practice in that specialty.

The duty of a medical professional usually is not the duty to cure or to guarantee a good outcome from treatment. The duty is to provide good medical care according to accepted standards in the community, or, in the case of a specialist, accepted standards in that medical specialty. A medical professional may, however, have a different duty of care if a specific guarantee of a particular result is given to the patient.

How are medical malpractice cases analyzed?
The basic elements involved in medical malpractice, as in common negligence, are establishment of a standard of care, proving a breach of that standard of care, legal causation, and damages.
Generally, standard of care is defined as how a reasonable, careful or prudent person would behave in similar circumstances. In general, all people have a duty to avoid creating foreseeable, unreasonable risks of harm to others.

Breach of that standard of care occurs when someone deviates from that standard of care and creates a foreseeable, unreasonable, risk of harm. Causation and damages are often intertwined and can be difficult to separate. A legal cause of action for negligence usually exists when it is determined that the breach of the standard of care proximately caused damages, usually physical or emotional in nature to the victim.

These same issues, standard of care, breach of the standard of care, causation and damage also apply in a case involving medical malpractice. However, the elements of a negligence cause of action are tailored to the medical or health care setting. Therefore, in determining whether medical malpractice exists, the questions become: 1) how would a reasonable, careful and prudent doctor, hospital or other health care provider behave in the same or similar circumstances; 2) did the doctor, hospital or other health care provider breach that standard of care in this specific situation; 3) was the unreasonable, careless or inappropriate behavior on the part of the doctor, hospital or other health care provider the proximate cause of 4) injury or damages to the patient or client?

To prevail in a medical malpractice case, all of the above elements must be proven. The failure to establish even a single element will prevent the successful outcome of a medical malpractice suit.

What does "statute of limitations" mean?
The legislature of each state has determined and placed into the state?s laws the maximum time after the commission of a civil wrong that a lawsuit may be brought. In general, a medical malpractice case must be filed with the court, no later than two to four years after the commission of the malpractice. Regardless of how strong the malpractice claim may be, if the suit is not initiated with the statute, then the suit cannot be brought.

For example: In January of 1999, John went into the hospital to have surgery done on his stomach. During the surgery, the doctor negligently left a rubber strap inside John?s stomach. The rubber strap resulted in a stomach infection that required intensive medical attention and prolonged hospitalization. If the statute of limitations for medical malpractice suits are two (2) years from the time of the malpractice, then John must file suit with the court no later than January of 2001. If John decides to file suit in January of 2002, then his suit will be barred from being brought due to the statute of limitations.

In Florida, the statute of limitations in Medical malpractice cases, with some limited exceptions is two (2) years from the time of the malpractice or from when the victim should have known of the malpractice, but in no event later than four (4) years from the malpractice. Any potential claimant should consult a competent attorney to discuss these issues since many factors may effect the limitations period.

How do I begin a medical malpractice lawsuit?
If you think that you have a valid medical malpractice lawsuit, it is wise to seek out an attorney who specializes in medical malpractice. Medical malpractice is an extremely complicated are of law that raises many complex and intellectually difficult legal and medical issues. Due to the heavy reliance upon medical experts, the cost involved in bringing a successful medical malpractice suit is very high. Most attorneys who specialize in medical malpractice will provide a free initial consultation to determine whether the case is worthy of further investigation. Most malpractice specialists have a number of experienced experts who can determine not only whether the case is viable, but also how difficult the case will be to try before a jury.

The Doctor-Patient Relationship
The duty of a doctor or other medical professional to provide care to a patient is usually established by voluntary agreement between the doctor and the patient. By this agreement, the doctor and patient form a doctor-patient relationship. Once a doctor-patient relationship is established, the doctor has a duty of care to the patient. However, even if there is no actual agreement between the doctor and the patient, the law assumes that there is an agreement under certain circumstances. For example, if family members seek treatment for an unconscious patient, the law assumes that there is an agreement between the doctor and the patient, even if the patient is unable to make any agreement.

Because the doctor-patient relationship is usually formed by an agreement between doctor and patient, doctors usually do not have an obligation to provide treatment. Therefore, if a doctor sees an accident on the way home from the hospital, the doctor does not usually have an obligation to stop and give assistance. Under certain circumstances, however, a doctor may have an obligation to provide treatment even if there is no actual voluntary agreement. For example, hospitals accepting certain kinds of federal funds may be required to provide care to indigent patients under some circumstances. Doctors who work in emergency rooms may be required to provide care to anyone coming into the emergency room with a life-threatening condition.

Doctors responding to emergency situations and providing care for accident victims may be protected from certain lawsuits by "Good Samaritan" laws. These laws, enacted in most jurisdictions, usually apply in emergency situations occurring outside a hospital or other medical facility. Generally, these laws apply in situations where the doctor did not have a duty to the victim, but volunteered in good faith to help because of an emergency, and did not request a fee. If the doctor fits within the Good Samaritan law, the doctor usually cannot be sued for mere negligence, but only for gross negligence.

Doctor-Patient Confidentiality
Doctors and other medical professionals have a duty to keep patient information private and refrain from disclosing it to third parties without your consent. A doctor or medical professional who breaches this duty by disclosing confidential information, including your medical records, may be liable to you for damages for any embarrassment or other injury you suffer from the disclosure.

There are many exceptions to the rule that medical information and records must be kept confidential.

Health insurance companies usually require patients to waive the right to confidentiality when making a claim for medical coverage.
If a patient sues a medical professional for malpractice, the patient?s medical records and information may become evidence in the lawsuit.
Many states have statutes and other rules requiring medical professionals to report certain kinds of patient information to authorities, from reporting the incidence of certain communicable diseases, to incidents of child abuse and gunshot wounds.

What is Malpractice?
The concept of medical malpractice negligence is very broad and encompasses virtually every kind of mistake that could be made by a medical professional. A common mistake is the failure to properly diagnose a patient's disease or injury resulting in improper or delayed treatment.
Other actions which may constitute medical malpractice include:

Improperly prescribing a drug
failing to inform the patient of available treatments
or
continuing a treatment that has been shown to be ineffective
failing to provide information to a patient

Some types of injuries are considered "negligence per se" or negligence "on the face of it," because the particular type of injury could not have occurred without the negligence of someone involved in the patient's treatment. For example, if a medical instrument is left inside the patient?s body following an operation, negligence usually may be assumed without further proof.

Causation
A medical professional may have been negligent in providing care to a patient, but sometimes that negligence is not the cause of the injury suffered by a patient. Because the law requires a connection between fault and injury, not all instances of medical malpractice justify an award of damages. Determining causation in medical malpractice cases often is very complicated and usually requires the assistance of expert witnesses.

Expert witnesses are usually required in medical malpractice cases:

to establish the prevailing standard of medical care in the geographical area or the area of specialty
to establish that the medical professional's negligence (failure to meet the applicable standard of care) caused the patient's injuries

In rare instances, expert testimony may not be necessary to establish a claim because the negligence of the medical professional is obvious to lay persons without the need for any special testimony. For example, a patient who undergoes the amputation of the wrong leg need not call an expert witness to establish that malpractice has occurred. Another example is where a medical professional violates a civil or criminal statute. Sometimes it is sufficient just to prove that the statute was violated, and that the violation caused the patient's injuries.

The increasing complexity of medical treatment means that a patient may be treated by a long list of doctors, nurses, and medical technicians in the course of treatment. Determining which of these practitioners may have been negligent, and how that negligence may have caused a patient's injury, can be extremely complex. For example, one doctor may have incorrectly diagnosed a patient, but a subsequent doctor may have been negligent as well in failing to correct the diagnosis. Or a series of mishaps in an operating room, each by a different technician, may mean that more than one technician is liable for malpractice because each mishap contributed to the injury. Additionally, the injury may have been caused by the use of a defective medical device or drug. In those cases, the law of product liability becomes relevant in determining causation.

Informed Consent
Medical malpractice cases are concerned with whether a medical professional was negligent, or careless, in providing medical care. A medical professional may also be liable for failing to obtain a patient's informed consent. However, the damages a patient may recover in this kind of medical liability action are different from the damages that might be obtained in a medical malpractice negligence action.

The law of medical malpractice initially grew out of the intentional tort of battery, an unlawful, non-consensual touching. If a doctor failed to get the patient's consent to treatment, the treatment was regarded as a battery. This view of malpractice evolved into the theory of informed consent. Under the concept of informed consent, the doctor must not only get the patient's consent to treatment, but the treatment must be obtained from a fully informed patient. Because the medical liability theory involves the concept of a lack of consent to a procedure, a patient may be able to recover damages even if the medical procedure was successful. In a lawsuit for negligence, the patient must be able to show that the treatment was in some way harmful.

At a minimum, informed consent usually means that the patient has been informed of:

the nature of the treatment or procedure that will be performed
any alternatives to that treatment or procedure
the risks of the procedure
the risks of failure to undergo the procedure

Informed consent is especially important in cases involving experimental treatments.

The patient gives actual consent to a treatment , either orally or in writing. Sometimes doctors provide extensive and elaborate consent forms for patients to sign. There are some cases where consent is implied such as:

from conduct indicating a willingness to undergo the treatment.
when an unconscious patient is unable to consent, and there is no family member available to give consent to treatment

It is usually necessary for a parent or guardian to consent to the treatment of a child, unless treatment is required in an emergency situation and the parent or guardian is unavailable to give consent. Exceptions apply to situations where a minor seeks treatment for:

a sexually transmitted disease
alcohol or drug problems

Abortion is another procedure to which a person under the age of 18 may be able to give consent, but many states have enacted statutes requiring parental consent to an abortion.

Sometimes a patient may not wish to accept treatment, or particular kinds of treatment. If the patient is conscious and competent, the patient can refuse.

Patients may refuse particular kinds of treatment such as a blood transfusion for religious reasons.
Patients with a terminal illness may wish to refuse life-extending but painful treatment.

If the patient is unconscious and a family member asserts the patient's wish to refuse certain treatment, difficult issues are presented which may require a court proceeding to resolve. Many states have responded to these difficulties with legislation giving effect to living wills or advanced health care directives. These documents may give express instruction to health care providers, or give a family member or other person authority to consent to, or refuse, treatment on behalf of the patient.

Damages
Usually there are two types of damages available in a negligence medical malpractice case; actual damages and punitive damages.

Actual damages include the cost of additional medical treatment, lost wages, lost future earning capacity, and pain and suffering caused by the injury.
Punitive damages are usually only available if the person who caused the harm acted intentionally, willfully, or recklessly in causing the harm. In some cases, an award of punitive damages may be many times the amount of the actual damages, especially if the actions of the person found responsible for the harm are considered particularly wrongful.

In rare instances, a patient may succeed in proving that a doctor promised a particular result from a medical treatment or procedure and failed to provide the promised result. In those cases, the doctor may also be responsible for the loss of the value of the successful treatment.

The damages available in a medical liability case alleging a lack of informed consent are somewhat different from those in a negligence medical malpractice case. Because the theory is that the patient was touched without their consent, the doctor may be liable for the unlawful touching, regardless of whether the treatment was successful.

A number of states have enacted statutes limiting the amount of damages that may be awarded in a medical malpractice negligence action. These statutes may impose a limit on the total amount of damages, or they may limit punitive damages or "non-economic" loss.

Liability of Hospitals and Health Maintenance Organizations (HMOs)
Hospitals are generally liable for any actions of their employees that are undertaken within the scope of their employment. For example, a hospital is responsible for the actions of a nurse employed by the hospital in the course of providing care in the hospital.

Questions regarding the liability of hospitals frequently arise when they involve the actions of a doctor who is not an employee of the hospital.

a doctor may not be on staff, but only have privileges at the hospital
a doctor may be on the staff of the hospital but bill patients directly for services rendered

Traditionally, these doctors are considered independent contractors rather than employees, and the hospital may not be automatically liable for their negligence. Exceptions to this general rule have been recognized in situations where the patient has every reason to believe that the doctor is employed by the hospital. For example, hospitals have been held liable for the actions of doctors working in their emergency room even if they were not employees, as well as for anesthesiologists and radiologists.

Ever-changing federal law complicates the liability of a Health Maintenance Organization (HMO) for the medical malpractice negligence of one of its doctors. The federal Employment Retirement Income Security Act of 1974 (ERISA) has been held by some courts to preempt state law medical negligence claims involving HMOs, because HMOs are a form of employee benefit plan. If a particular claim is preempted by ERISA, the HMO cannot be held liable under state law for the doctor's medical malpractice negligence. This means that the patient can bring a lawsuit only against the doctor, not the HMO. Some contract claims against an HMO may be precluded by ERISA as well. Judicial decisions can be expected to define the law in this area in the next several years.

OSHEROW, SHINER & ASSOCIATES, P.A., BOCA CORPORATE PLAZA, SUITE 650, 7900 GLADES ROAD, BOCA RATON, FLORIDA 33434
TELEPHONE: (561) 477-5054 FACSIMILE: (561) 477-3661 www.osherowlaw.com E-MAIL: mrosh@osherowlaw.com