Medical professionals work hard not to make mistakes because they can have a serious and sometimes deadly effect on the life of a patient. In fact, according to a 2016 study by the John Hopkins School of Medicine, 10% of all deaths in the United States annually happen because of medical errors. That makes medical errors the third leading cause of death in the United States behind heart disease and cancer.
Still, mistakes can happen despite someone’s best efforts. If the mistake is because of negligence on the part of the physician, nurse or institution, such as a hospital, however, then the case may be deemed medical malpractice.
Not every mistake made by a doctor results in medical malpractice. Similarly, not every instance where a patient does not like the treatment they received or does not believe it cured their problem results in a medical malpractice lawsuit.
To have a legitimate medical malpractice case, the treatment that a patient receives must fall below the appropriate standard of care.
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What Is the “Standard of Care”?
The medical standard of care is defined as the level of medical care that a trained, skilled and competent healthcare professional, who has a background similar to your doctor and worked in the same field, would have provided to you under similar circumstances.
If you are considering contacting an attorney about filing a medical malpractice lawsuit, think about that definition.
If you had seen a different doctor in the same field, would they have provided you with similar medical care in the same circumstance? If you think you would have received better treatment from another doctor and believe you have suffered harm as a result of treatment that did not make the standard of care, you may have reason to launch a medical malpractice lawsuit.
What Is a Medical Malpractice Lawsuit?
Medical malpractice can be the result of a negligent act or an omission by a healthcare professional or by an institution like a hospital. To prove that malpractice occurred, the plaintiff or their attorney should be able to show the following qualifications of medical malpractice:
1. The Standard of Care Was Not Met
Every patient expects that their physician or healthcare professional will give them healthcare that follows the standard of care for their particular field. If the standard care has not been met and the plaintiff or the lawyer can prove this, they can establish negligence.
2. This Negligence Caused Injury
Remember, not every mistake a healthcare professional makes can be classified as medical malpractice. If a medical malpractice claim is to be considered valid, the plaintiff must prove that they suffered an injury that would not have happened were it not for this act of negligence.
It is not just that the patient may have an unfavorable outcome after a medical procedure. Every medical procedure has some chance of not working. What the plaintiff needs to show is that this negligence by the healthcare professional resulted in an injury to them.
3. The Injury Resulted in Significant Harm
Medical malpractice lawsuits can be costly for both the plaintiff and the defendant. If the injury was small, inconsequential or easily healed, the plaintiff and their attorney may decide not to pursue a medical malpractice lawsuit.
If, however, significant harm resulted from the negligence of the physician or an institution and led to a disability, unusual pain, significant suffering and hardship, large medical bills now and in the future or loss of income, a medical malpractice lawsuit becomes more viable and necessary.
What Are the Four D’s of Medical Negligence?
Part of a successful medical malpractice lawsuit is proving treatment below the standard of care. To determine malpractice, an attorney will work to establish the four D’s of medical negligence, providing plentiful evidence that proves each of the four aspects. The four D’s of medical negligence are:
A healthcare provider’s duty is to provide a patient with the care they need while listening to their concerns and requests or referring patients to another medical professional who has the experience to help.
Part of proving medical malpractice involves providing evidence of a patient-physician relationship. This proof typically consists of medical records that state the healthcare provider was overseeing your treatment. That proof establishes who was responsible for your care or whose duty it was to follow protocols throughout your treatment.
2. Dereliction or Deviation
Medical professionals have certain standards to meet in their respective fields, and when a professional deviates from the medical standard of care, you have a stronger case for medical malpractice. Deviation often consists of anything from surgical errors to incorrect prescriptions to misdiagnosis.
Another considerable portion of a medical malpractice case is proving, with sufficient evidence, that you suffered damages as a result of the healthcare provider’s negligence. Those damages may be:
You may experience all of the above damages or a combination as a result of medical malpractice. Evidence for this category may consist of medical and prescription records from other healthcare professionals or the cost of any corrective treatment you required.
4. Direct Cause
To have a viable medical malpractice case, you must be able to show that the healthcare provider’s dereliction from their duties directly caused your injuries and damages. For a stronger case, you must be able to prove that you followed the doctor’s protocol. If you do not follow prescribed treatment, you may be seen as the cause of any complications.
What Are the Different Types of Medical Malpractice?
Healthcare professionals commit certain medical malpractice errors more than they do others. These are some of the common types of medical malpractice occurrences.
1. Misdiagnosis or Delayed Diagnosis
These two errors account for many medical malpractice lawsuits. If a doctor misdiagnoses a patient or does not diagnose a serious disease or injury in a timely fashion, it means their patient failed to receive treatment that may have prevented a more severe outcome.
2. Medication Errors
Medication errors can arise in a number of ways, from prescribing the wrong drug to errors in the way it is administered. Medication errors are a problem frequently seen in hospitals when mixups result in the patient receiving the wrong medication.
Prescribing the proper dosage is another issue — the patient receives too little or too much of a drug. This occurs in several ways:
- The doctor prescribes an incorrect dosage.
- The doctor’s prescription is correct, but the person administering the drug gives the patient the wrong amount.
- In a hospital setting, drugs are often administered via a piece of equipment. In some cases, this equipment malfunctions and delivers an incorrect dosage.
3. Anesthesia Errors
These errors can be among the most serious errors committed in a hospital or a clinic setting. They are often much more dangerous than mistakes made during surgery. If an anesthesiologist administers the wrong amount of anesthesia, the result can be permanent injury, brain damage or even death.
Anesthesia errors can occur either presurgery or during surgery.
Mistakes happen presurgery when:
- The anesthesiologist fails to properly investigate the medical history of the patient to see if there could be possible complications.
- The anesthesiologist fails to tell the patient about the risks of not following preoperative instructions, such as not eating for several hours before surgery.
Errors that can occur during surgery include:
- Giving the patient too much anesthesia.
- Not paying careful attention to the patient’s vital signs while they are under the effect of anesthesia.
- Failing to properly intubate patients — which means placing a tube in the patient’s trachea to help them with their breathing.
- Using defective or malfunctioning equipment.
4. Surgery Errors
Mistakes made by doctors or nurses in the operating room often lead to medical malpractice lawsuits. Physicians may make mistakes during the actual operation like operating on the wrong body part, leaving a surgical instrument in the patient’s body or puncturing an internal organ.
When nurses are negligent in administering post-operative care to a patient, this can lead to severe complications like dangerous infections.
5. Childbirth Injuries
A number of fetal or maternal injuries can be caused by negligent care. This negligent care can take place long before childbirth or during it.
Negligent prenatal care can occur when a physician or an obstetrician:
- Fails to diagnose that the mother has a serious medical condition such as hypoglycemia, anemia or preeclampsia.
- Fails to notice an ectopic pregnancy — when a fertilized egg attaches itself someplace other than the uterus.
- Fails to notice other possible birth defects.
- Fails to diagnose a disease that can cause serious harm to a fetus.
Negligence during childbirth occurs when a physician or an obstetrician:
- Does not account for birth complications as a result of the large size of a baby or an entangled umbilical cord.
- Does not respond to any sign of fetal distress.
- Does not order a cesarean section when one is needed to ensure a safe birth.
- Fails to use forceps or a vacuum extractor properly.
6. Additional Medical Malpractice Situations
Other possible scenarios where medical malpractice can occur include:
- Ignoring or misreading a lab result.
- Conducting unnecessary surgery.
- Discharging a patient before they are ready.
- Not ordering the correct testing.
- Amputating the wrong body part.
- Dropping a patient when lifting or transporting them.
Can Medical Malpractice Occur in a Seniors’ Facility or With an In-House Nurse?
You can sue a facility involved in senior care or an in-house nurse for negligence or medical malpractice if they fail to meet the standard of care. Depending on the status of an in-house nurse — whether they are independently employed or work for a company — you may also be able to sue the company for negligence.
In a facility for seniors, if an act of neglect or abuse results in an injury to a resident, the nursing facility may be liable.
If a facility for seniors accepts Medicare payments, which most do, then they are obligated to follow a standard of care as determined by the federal government. For instance, it is necessary for the facility to ensure:
- That the environment of the nursing facility is as free as possible of accidental hazards.
- That every resident of the nursing facility receives appropriate devices and adequate supervision to prevent accidents.
If the seniors’ facility fails to follow these regulations, and this results in injury to a senior resident, the nursing facility may be liable.
In-house nurses can also be sued for medical malpractice if the patient can show that the nurse failed to perform their medical duties competently and that the failure resulted in injury or harm to the patient.
Emergency Room Malpractice
If you have been in a severe accident and taken to the local emergency room, you expect the healthcare professionals on duty to determine your injuries and provide you with the proper treatment. Unfortunately, this is not always the case. Sometimes mistakes occur that make a patient’s injuries worse.
You can file a medical malpractice lawsuit because of something that happened to you in an emergency room, but you will need at least one medical expert to describe that standard of healthcare and how it was not met in this case.
That is because emergency rooms are often chaotic and stressful environments. Since injuries are treated on an urgent basis, mistakes are more likely to occur than they would in a typical hospital setting. Courts and juries tend to be more lenient with minor errors in these types of settings.
If you feel that you have suffered a serious injury because of the way you were treated in a hospital emergency room, contact an experienced attorney. You need someone on your side who understands medical malpractice and personal injury law to help you determine whether you should file a medical malpractice lawsuit.
What Are the Professions Most Often Sued for Medical Malpractice?
Healthcare specialists are involved more often in medical malpractice lawsuits. While your primary care physician can still make errors, they do not tend to make the same errors as specialists. Specialists also have a higher standard of care that they must follow.
Some of the professions most often involved with medical malpractice lawsuits include:
Two professions least likely to be sued include pediatricians and psychiatrists.
Some Important Things to Remember About Medical Malpractice in Pennsylvania
If you are thinking of filing a medical malpractice lawsuit against a doctor, nurse or institution, such as a hospital or nursing home, it is essential to keep several things in mind.
1. Statute of Limitations
In Pennsylvania, a patient has two years after they discover that they were harmed by medical malpractice to file a lawsuit. Under the statute of repose, however, the patient only has seven years after the original injury in which to file a lawsuit. If they do not discover it for eight or nine years after the original injury, they cannot file a lawsuit. There are some exceptions for minors and certain types of medical accidents. It is best to speak to an experienced attorney if you are worried about meeting the statute of limitations.
2. Certificate of Merit
Under Pennsylvania law, if you wish to file a medical malpractice lawsuit, within 60 days, you must file a certificate, or affidavit, of merit. This is a document from a medical expert who works in the same field and has as much appropriate medical experience as the healthcare professional you are suing. In the certificate, the medical expert will say that they do not believe that the physician in question met the medical standard of care in your case and why.
3. Damage Caps
Pennsylvania is one of the few states that has no cap on economic or non-economic damages. Without a cap, awards for medical malpractice in Pennsylvania can often be in the hundreds of thousands of dollars. There is a cap on punitive damages, however, which is twice the amount awarded for economic and non-economic damages. Additionally, 25% of any award given for punitive damages goes to a fund for patients injured by doctors who may not be able to pay damage awards.
4. Doctors Win More Medical Malpractice Lawsuits Than Patients
According to a 2011 study by the New England Journal of Medicine, claims made against a physician rarely resulted in an award to the plaintiff. This is why it is crucial to speak to an experienced attorney to help you determine whether you have a viable medical malpractice claim. Malpractice claims are often highly contested, requiring professionals and experts to establish the opinion that improper medical care has resulted in injury and significant harm.
5. Most Medical Malpractice Payouts Occur as the Result of a Settlement Rather Than a Judgment
A majority of payouts involving medical malpractice are settlements, rather than judgments by a court. This is another good reason why working with an experienced medical malpractice attorney increases your chances of receiving compensation in the form of a settlement for your injuries that resulted from negligent medical care.
Contact the Experienced Attorneys at KBG Injury Law to Help You With Your Medical Malpractice Claim
You will more than likely need a medical expert to testify on your behalf if you are going to file a medical malpractice lawsuit. This person will need to have similar training and experience as the healthcare professional you are suing. The expert will also need to establish the medical standard of care you received, show how your treatment was below that standard and show how the treatment harmed you.
The attorneys at KBG Injury Law can help you find medical experts to determine if the standard of care was met in your situation. When you speak with one of our experienced and knowledgeable attorneys, they can help you determine if you have a viable medical malpractice lawsuit and how to proceed if you do. They can ensure you meet all filing deadlines for the statute of limitations.
If you would like to learn more about how important the medical standard of care is to your case, please call KBG Injury Law at (800) 509-1011 or contact us online.