Articles Posted in Medical Malpractice

If you have been injured or sickened by a doctor or mistreated by hospital staff, your recovery should be your highest priority. However, negligent physicians and hospitals should be held accountable for the actions (or inaction) and a medical malpractice lawsuit may be necessary to achieve this.

Nevertheless, most people do not have any experience in hiring an attorney, and often seek referrals because of the confusion that open solicitations may present. But to pick the right law firm for your needs, it is important to ask questions. This post will highlight a few important ones that can help in determining which law firm is right for you. 

How did you start handling malpractice cases? – Just as a potential jury will be interested in hearing your story, you should be interested in your attorney’s story as well. When asking about how he or she started handling malpractice cases, the attorney should be able to discuss his or her background and experience, and make you feel that he or she is experienced and capable.

A recurring theme on our blog is what patients, hospitals and medical personnel can do to eliminate patient deaths. It is an important topic because of how many preventable deaths occur each year.  To put it into perspective (if you haven’t followed our blog before) deaths due to hospital errors are the third leading cause of death of adults in the United States according to a 2013 study published in the Journal of Patient Safety.

With tort reform becoming such a popular political topic, it is interesting how patient safety has not necessarily been politicized…until recently. According to a recent Forbes.com report, the Patient Safety Movement has been gaining such support. At a recent summit, a number of political heavyweights pledged their support, including Vice President Joe Biden, former President Bill Clinton as well as former Surgeon General Richard Carmona. 

Essentially, they put their names and political clout behind the notion of eliminating all preventable medical errors by 2020. Indeed, this may appear like a lofty goal given the number of errors (and deaths) that occur each year, but having such a united front now, and making it a high-profile political issue during the presidential election in 2016, may be the driving force needed to make meaningful change.

Sometimes you wish that the old adage “you get what you pay for” applied to everything in life. For the most part, it does. If you want to pay extra for a luxury vehicle, it will have features and overall performance that outshines an economy vehicle. The same goes for paying for first class tickets on an airplane as opposed to paying coach.

However, what you may be paying for as far as medical services may not reflect the quality of service and advice you may receive. According to a performance evaluation conducted by the Commonwealth Fund, the U.S. health care system continually underperforms even though it is the most expensive in the world.

The findings were reached through an analysis of several factors, including:

With all the posts we have written about medical malpractice, part of the reason that some may not bring malpractice suits is that they may not realize that their injuries or ailments were actually caused by a doctor’s mistake. Additionally, some may have questions about whether they can bring a lawsuit, given how much time has passed since the surgery, diagnosis, or procedure they underwent.

Because of these questions, we dedicate this post to answering the question (on a threshold level) as to how the statute of limitations may affect a medical malpractice suit. 

Under New York state law, a medical malpractice suit must be initiated within two years and six months of the alleged injury or malpractice. New York is one of a few states in America where the statute of limitations is based on the date of the alleged malpractice (or the last date of treatment), not when a prospective plaintiff actually discovers that their ailment was caused by a physician’s mistake. Because of this, a plaintiff may be at a disadvantage when it comes to seeking damages for malpractice.

In a number of our posts, we have highlighted the notion that some physicians believe that they are not mistake prone. Essentially that there is a culture that doctors should not confront their colleagues about mistakes made in treating (or diagnosing) patients. This rigidity about making (or being accountable) for mistakes is particularly troubling, especially when the specter of human error is simply a part of life.

But what happens if human error is not the cause of an adverse medical outcome? What if such an outcome is the result of faulty equipment?

This is a question that may come up in the midst of a medical malpractice investigation (much less a lawsuit). In order for a plaintiff to prevail in a malpractice action, he or she must show that but for a doctor’s negligence, the injuries or ailments the plaintiff now suffers from would not have occurred.

As medical malpractice attorneys, we hear a number of stories about doctors who make mistakes. Some of them are quite tragic, as they are errors that should never be made. Others are fairly common, as they are a reflection of disorganization or poor judgment.

Nevertheless, good physicians; or rather, good medical teams are not easy to come by. As such, it may be difficult to really know when you should move on and find new medical providers. With that, we dedicate this post to highlighting clues that should tell you when it is time to move on. 

Your doctor doesn’t seem to care – Indeed, a doctor’s bedside manner is only one component of what makes him or her a great physician, but your doctor has to care about your ailments. If your doctor appears less than concerned about your issues, or dismisses your claims, it may be time to find a new doctor.

We have written many posts on the different types of damages an injured patient may seek in a medical malpractice case. However, we have not touched upon the different elements in such cases that lead to successful claims. Before a medical malpractice suit may be commenced, a physician (or hospital staff member) must owe a duty to a patient.

What exactly is a duty? Essentially a doctor must carry an affirmative responsibility to care for a patient before his actions (and competency) may be judged in a medical malpractice case. This comes by a patient either being assigned to doctor or by a patient seeking out a physician for a particular procedure or an examination.

 Keep in mind that this is different from a doctor who sees a stranger in distress in a restaurant. In these situations, a doctor is under no legal duty to act (even though it would be a good and kind gesture to do so). Conversely, once a doctor decides to examine or advise a patient (whether assigned or sought out) a duty attaches.

It may difficult for a patient to bring a medical malpractice claim against a hospital or a physician. There are many elements that do not always favor an ailing patient, including the lack of money available to properly investigate the claim, the ambivalence in the justice system because of how long it may take, and the constant pain a malpractice victim may be in.

But even in the midst of bringing a malpractice claim, a plaintiff (or at least a plaintiff’s lawyer) must prepare for the various defenses a hospital, nurse or physician may bring. This post will identify a few of them. 

Disputes over standards – In order to prevail on a medical malpractice claim, a plaintiff must show that a physician’s or nurse’s actions fell below the standards expected of medical professionals in similar situations. As such, a defendant may argue that his or her actions fell squarely within the professional standards expected.

In a prior post we highlighted the failed legislative initiative in California to overturn the state’s cap on non-economic damages in medical malpractice cases. The current law, which was enacted by the legislature in 1975, limits the amount of money plaintiffs in med mal cases may be awarded by a jury to $250,000. In the nearly 40 years since the law was passed, this amount has not been adjusted…even for inflation.

California’s law has likely been the impetus for similar laws by legislatures around the country, especially as jury awards for pain and suffering continued to rise in the 1980’s and 1990’s. In fact, it is arguable that states that did not have non-economic damages caps were more likely to lose physicians who were not able to pay the skyrocketing insurance costs ostensibly driven by the fear of large medical malpractice awards. 

However, as more information comes forth indicating that tort reform does not actually lower medical costs, some states are re-thinking their caps on liability. For example, the Florida Supreme Court recently found that damages caps are unconstitutional. The court explained that such caps served no other purpose than to “arbitrarily punish the most grievously injured or their surviving family members.”

Today’s modern mega cruise ships are engineering marvels. They include elaborate boulevards that resemble actual city blocks and shopping malls. They have multiple signature restaurants, waterslides, ice skating rinks and even rock climbing walls. They also have state-of-the-art medical facilities to handle people who become sick or injured in the course of having fun on their cruise.

However, if a patient is sickened or injured because of a doctor’s negligence, the patient was usually out of luck. Medical malpractice cases against cruise lines were commonly dead on arrival because of maritime laws that generally insulated cruise ship medical staffs from liability in U.S. courts. 

Nevertheless, a recent ruling by the U.S. Court of Appeals for the Eleventh Circuit may change this going forward. Essentially, the court rejected the application of the so-called “Barbetta rule” which immunizes a shipowner from liability under the legal theory of respondeat superior when a ship’s employees are negligent in rendering medical care to passengers. Because of this, a wrongful death action based on medical malpractice alleged against a ship’s doctor on a Royal Caribbean cruise ship was deemed worthy of going forward. It was initially dismissed by the trial for failure to state a claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure.