Medical Malpractice

Medical malpractice can leave you with debilitating injuries; however, if you want to get the compensation you need to get your life back on track, you’ll want to take proactive steps in the right direction. If you believe you’ve been a victim of a medical error, you should consider taking the following steps:

• Contact an attorney immediately: Like other types of liability cases, the steps you take directly after an accident (medical or otherwise) can significantly impact your ability to receive compensation later on. An experienced medical malpractice lawyer can walk you through each step of the process to ensure whatever you say won’t prevent you from reaching the maximum possible settlement or jury verdict to which you are entitled. In general, malpractice victims have two years after the incident occured (or after they discovered the incident) to file a case.
• Don’t accept any settlements: If a doctor, hospital, or insurance company offers you a settlement, don’t take it. Taking a settlement early on can severely limit or eliminate your ability to negotiate a larger settlement later on. Plus, you may not know the true severity of your injuries, so an initial settlement offering may only cover a small fraction of your overall medical costs, not to mention other damages, including emotional and psychological distress and loss of future income.
• Find a new doctor as quickly as possible: If you’ve been injured due to medical error, you need quality treatment as quickly as possible; and you’re unlikely to find it from the doctor who injured you. In addition, when it comes to determining instances of medical malpractice, time is of the essence. The longer it takes to discover an instance of malpractice, the easier it is for the doctor or hospital’s insurance company to claim that the injury happened elsewhere or was unrelated to the medical treatment you received.
• Request your medical records ASAP: Unfortunately, many doctors and hospitals will attempt to change or tamper with your medical records after an instance of malpractice. For example, if you were injured during surgery, they may attempt to alter your records to show that you already had the injury. Therefore, the faster you can get your hands on your own records, the better.
• Keep a written record of your symptoms and interactions with healthcare providers: Medical malpractice cases can be complex, and often involve multiple doctors and healthcare institutions. Plus, you may only begin to discover evidence of medical malpractice weeks or months after the incident occured. For this reason, it’s an excellent idea to keep a journal of everything you experienced, as this will help you and your attorney during settlement negotiations or a jury trial.

Just as there are countless types of medical conditions and medical treatments, there are a huge variety of types of medical malpractice. However, some of the most common types of medical malpractice include:

• Misdiagnosis: Perhaps the most common type of medical malpractice is failing to diagnose a serious medical condition despite substantial evidence to the contrary. Commonly undiagnosed or misdiagnosed conditions include cancer, heart disease, and even strokes.
• Unnecessary medical procedures: Being misdiagnosed for a medical condition could lead to unnecessary medical procedures being performed. On the mild end of the spectrum, this could lead to a series of expensive, yet unneeded medical treatments. However, a misdiagnosis could also lead to major surgeries or the prescription of a drug that causes serious side effects.
• Surgical errors: While surgeons are respected as some of the highest-skilled medical professionals, in reality, many of them make incredibly serious mistakes. This can include conducting the wrong operation (or the “right” operation on the wrong patient) or conducting the operation on the wrong side of the body. Shockingly, surgical malpractice can also involve leaving surgical equipment, such as sponges or knives, inside a patient’s body.
• Birth injuries: While birth injuries have been drastically reduced over the last century, birth injuries, or even the death of a child (or both mother and child) is still a serious problem in the U.S. According to the CDC, more than 20,000 infants die each year, many from birth injuries. Sadly, many of these injuries are preventable and are a direct result of medical errors. Even for those children who are not killed during childbirth, birth injuries can result in lifelong disabilities. In addition to babies, many mothers are also killed or seriously injured in the birthing process due to preventable medical errors.
• Prescription errors: Prescription errors are another extremely common type of medical malpractice. While these sometimes occur at the pharmacy level, they generally occur due to a doctor or hospital error. In addition to causing direct, and sometimes irreversible side effects, taking the wrong medication can lead to serious drug interactions that could lead to heart attacks or strokes. Side effects, such as drowsiness, could also lead to work-related or vehicle accidents. Even if a doctor prescribes the correct medication, they may prescribe it at the wrong dose, which can also lead to serious medical complications.
• Anesthesiologist errors: Anesthesiologists are some of the best-trained medical professionals in the industry, yet they still make a staggering number of mistakes per year. This can include providing a patient with an improper dose of a medication, giving the patient the improper medication, or even failing to anesthetize a patient all together. They may also inadvertently cause an adverse reaction due to an interaction with another medication a patient is taking. Common results of anesthesiologist errors include brain damage or death. It’s also important to remember that an anesthesiologist has the duty to refuse to anesthetize a patient if they believe that a surgery will be too dangerous. This means that an anesthesiologist may be equally liable as a surgeon if a surgery results in a medical error or a malpractice claim.
• Wrongful death: Wrongful death as a result of preventable medical errors is a huge issue in the United States. These cases can be caused by any of the malpractice types mentioned above, as well as countless others. As we mentioned earlier, a Johns Hopkins study estimated that 250,000 people per year die of preventable medical errors in the U.S. However, another study published by the Journal of Patient Safety put the number at a shocking 440,000 people per year.
• Lack of Informed Consent: Another case for possible malpractice is if you did not give what is known as “informed consent” to a medical procedure that resulted in an injury. This is the case, even if the procedure was done perfectly. Your doctor must inform you of all the potential benefits, risks, and alternatives involved in any surgery or medical procedure. For instance, your doctor may not tell you that the surgery you are going to have has a chance of leaving you paralyzed. If the surgery does leave you paralyzed, the doctor may be liable even if your operation was done flawlessly because you were not informed of what could happen.

Unfortunately, medical malpractice is one of the most difficult types of liability to prove. Typically, attorneys refer to a four-part test to determine if medical malpractice is provable during settlement negotiations or a jury trial. These include:

• Duty: When doctors take the Hippocratic Oath, they commit to doing no harm and doing their best to treat a patient effectively. Any dereliction of this duty may be considered medical malpractice. However, in order to prove that the doctor had a duty of care, an established medical relationship must be proven. For instance, a doctor attempting an emergency procedure on a plane wouldn’t be held to the same standard of duty as a patient’s general practitioner (GP).
• Direct Cause: In addition to showing that the doctor had a direct duty of care to their patient, a victim must prove that their injuries or illness was directly caused by the doctor or hospital’s medical error. For example, if a procedure was performed and the patient did not follow the correct post-procedure instructions, the doctor may not be liable for damages.
• Deviation: Deviation means that the doctor or hospital “deviated” from, or failed to follow, standard best practices for their area of medicine. In general, this means that a similar “reasonable” specialist would have performed a procedure or prescribed a medication significantly differently.
• Damages: If deviation can be proved, a victim will also need to document and attempt to prove their damages. This can include providing prescription and medical records, as well as getting statements from similar specialists. Damages can involve both direct healthcare costs as a result of the malpractice incident, as well as emotional, psychological, and financial damages as the result of lost wages or a reduction in work capacity.

Unfortunately, medical malpractice can be very difficult to avoid. However, there are a few steps you may be able to take to reduce your (or a family member’s) chances of becoming a victim in the future.

• Research and vet doctors and hospitals: While reviews are a good place to start, it’s also ideal to get references or referrals if you are changing doctors, seeing a new specialist for a specific health issue, or are planning to undergo a serious procedure.
• Get a second (or third) opinion: If you are considering a significant medical procedure, such as highly invasive surgery, or considering taking a new medication, you may want to consult with a second or third doctor to get their opinion. You might find that the procedure you were planning may not be necessary, or that the medication you were planning to take could have dangerous side effects. 
• Ask for your medical records regularly: Even without malpractice, medical records are often lost, mixed up or filled with errors. A doctor viewing inaccurate medical records may inadvertently commit a medical error due to incorrect information. For that reason, you should always ask for copies of your medical records to ensure that you present your doctor with the most accurate records.
• Ask lots of questions: The more you know, the less likely you will be to face medical malpractice. In addition to consulting with multiple doctors, you will generally want to ask detailed questions about recovery times, side effects, and possible negative outcomes of any procedure. This way, at the very least, you will be better informed of the risks of any medical care you are about to receive.