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Bostons Medical malpractice is now considered between the fifth and eighth leading cause of death in the United States, according to the Henry J. Kaiser Family Foundation. Researchers report that roughly 5 to 10 percent of all patients admitted to hospitals this year will fall victim to medical negligence, whether in the form of a surgical mistake, wrong prescription, birth injury, or other type of error. Based on these hospitals' track records, this sounds about right: annually, up to 98,000 people die from preventable medical errors, two million patients contract infections in hospitals, and approximately 90,000 die from infections caused by inadequate sanitation methods (such as infrequent hand washing). |
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If you have suffered an injury in the care of a doctor, surgeon, nurse, hospital, medical clinic, or other type of medical provider, you may have a medical malpractice claim.
Contact InjuryLawLitigators.com for an attorney in your area who can help you with your case.
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| About 80% of medical malpractice claims in the U.S. come from the following four categories: |
- Surgery malpractice
- Obstetrics malpractice
- Medication or prescription malpractice
- Missed or delayed diagnosis
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| Examples of other types of medical malpractice include: |
- Dental malpractice
- Cancer misdiagnosis
- Amputation of the wrong limb
- Emergency room negligence
- Anesthesia accidents
- Misread X-rays/mammograms
- Mistakes in blood transfusions
- Hospital Negligence
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| A recent study (May 2006) by researchers from the Harvard School of Public Health (HSPH) and Brigham and Women’s Hospital found that almost all medical malpractice claims involved a treatment-related injury.2 More than 90% involved a physical injury, which was generally severe (80% resulted in significant or major disability and 26% resulted in death). The researchers found that 63% of the injuries were due to error. 73% of the claims due to error received an average compensation of $521,560. Most claims (72%) that did not involve error did not receive compensation, but when they did, the payments averaged $313,205. |
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| The costs of litigating claims, including defense costs and contingency fees paid to plaintiffs’ lawyers, averaged $52,521 per claim. The study also found that it took an average of five years from injury to resolution of the claim—a long time for plaintiffs to wait for compensation and for defendants to endure the uncertainty that litigation entails. |
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| Each state has laws that govern the way in which medical malpractice claims or lawsuits are resolved. The following information about medical malpractice claims comes from the Government Accounting Office: |
- Limits on Damages. Damages in medical malpractice cases usually consist of two categories, economic damages and noneconomic damages. (Although punitive damages can be available in cases of gross negligence and outrageous conduct of the health care provider, juries rarely award punitive damages in medical malpractice cases.) Economic damages generally consist of past and future monetary damages, such as lost wages or medical expenses. Noneconomic damages generally consist of past and future subjective, non-monetary loss, including pain, suffering, marital losses, and anguish. Although some states have limits on the total amount of damages recoverable in a medical malpractice suit, most states with limits emphasized a limit only on noneconomic damages.
- Evidence of Collateral Source Payments. Some states have statutes that allow defendants to show that the claimant is going to receive funds from collateral (other) sources, like health insurance policies, that will compensate the claimant for damages he or she is attempting to collect from the defendant. These statutes decrease the defendant’s liability by the amount the claimant will receive from other sources.
- Joint and Several Liability. The rule that a plaintiff can collect the entire judgment from any liable defendant, regardless of how much of the harm that defendant’s actions caused. The principle behind the rule is that it is fairer to require a negligent party to pay more than their share of an injury than to deny compensation to the innocent (or less negligent) victim of injury. Some states have eliminated joint and several liability, making each defendant responsible for only the amount or share of damage he or she caused the plaintiff.
- Attorney Contingency Fees. Most plaintiff attorneys are paid on a contingency fee basis. A contingency fee is one in which the lawyer, instead of charging an hourly fee for services, agrees to accept a percentage of the recovery if the plaintiff wins or settles.
- Statute of Limitations. The amount of time a plaintiff has to file a claim is known as the “statute of limitations.” Some states have reduced their statutes of limitations on medical malpractice claims.
- Periodic Payment of Damages. Defendants traditionally pay damages in a lump sum, even if they are being collected for future time periods, such as future medical care or future lost wages. However, some states allow or require certain damages to be paid over time, such as over the life of the injured party or period of disability.
- Expert Certification. Many states require that medical experts certify in one way or another the validity of the claimant’s case. These statutes are designed in part to keep frivolous cases, out of court. Expert certification requirements also have the potential to get as many relevant facts out in the open as early as possible, so that settlement discussions are fruitful and it becomes unnecessary to take as many cases to trial, thus decreasing the claims-handling costs of the case.
- Arbitration. Some states have enacted arbitration statutes that address medical malpractice claims specifically. By providing an option for arbitration, parties can avoid the larger expense of taking claims to court.
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| The following information comes from a report, titled Medical Malpractice Law in the United States, prepared for the Kaiser Family Foundation in May 2005. |
- For most increased-risk procedures medical professionals require patients to sign consent forms prior to surgery. These consent forms prove that the victims are aware of the inherent risks of their procedures before undergoing them. However, medical professionals are not permitted to fall back on these informed consent forms if they provide substandard care. For example, if a patient undergoing surgery signs a consent form but she dies while under the care of her doctor because he failed to catch an infection, the doctor can still be found guilty of medical malpractice or negligence.
- The injured person needs to prove that they received substandard medical care that caused their injury. This involves a number of steps. First, a person who is injured during treatment must determine whether or not they have been harmed by inadequate care. Physicians and other providers generally are not legally required to tell their patients that they were hurt by medical care that was not as good as it should have been, so patients who suffer adverse outcomes, or their families, usually must consult with others to make this determination.
- Patients who were under the care of multiple health care providers need to determine which, if any, of these providers contributed to their injury, if it is possible to do so. A malpractice lawsuit must be brought within the statute of limitation. In some states, the period for filing a suit starts when the person is injured, while in other states it does not start until the person knows or reasonably should have known that they had been injured.
- Once a person brings a malpractice lawsuit, the person (called the “plaintiff”) must show that they were actually under the care of the medical provider they are suing -- in other words, that they had established a physician-patient relationship. The concept here is that physicians (or other providers) owe a duty to their patients to use reasonable care and diligence in their treatment, but do not have any duty to care for members of the general public other than their own patients.
- The next requirement is the heart of a negligence lawsuit: the plaintiff must show that the physician did not provide medical care that met appropriate standards. More modern cases have moved toward holding physicians to a national standard for physicians practicing under circumstances similar to their own.
- Even if the physician is shown to have provided substandard care, the plaintiff still must prove that the substandard care caused their injury. In some cases this is not difficult, such as when surgery is performed on the wrong body part. In other cases, showing causation can be quite problematic, such as cases involving severely ill people who might have suffered complications from their disease even with good medical care.
- The final step in a medical malpractice case is establishing how much money should be awarded to a winning plaintiff. A person who wins a malpractice lawsuit has shown that the injury is someone’s fault under the rules of negligence, so the question then becomes how much money is needed to compensate that person for what they have suffered.
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| Contact InjuryLawLitigators.com for an attorney in your area to assist you with your medical malpractice claim. He or she will fully explain the law in your state and your rights under the law. |
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