Medical negligence occurs when medical treatment falls below expected standards. If a patient is injured as a result of medical negligence, that patient can sue for medical malpractice. If a patient dies, the family can file a wrongful death lawsuit.
The most common form of medical negligence is surgery, but it can happen at any nurse, doctor, medical technician, or medical facility. The different types of medical negligence are almost endless. Here are some examples:
Damage to a neighboring organ during surgery.
A misdiagnosis leading to no treatment for the condition or the wrong treatment for the condition.
A doctor telling a patient that he or she is fine, causing a delay in treatment that ultimately leads to injury. This is especially bad if a disease is progressive, such as cancer.
A dentist whose negligent treatment causes the patient to lose teeth.
The wrong medicine or the prescription of a medicine in a harmful dose. This could be the negligence of a doctor prescribing the medication, a nurse administering the medication, or a pharmacist.
Unnecessary surgery that, for example, leads to the patient not being able to have children.
A botched cosmetic procedure that causes an injury or a seriously unpleasant result.
A medical instrument accidentally left in a patient during surgery.
Errors on a medical card that lead to incorrect medical procedures or medications.
Improper or ineffective anesthesia administered prior to surgery.
A mistake made during childbirth that results in the death of the child or permanent harm to the child, such as brain damage. Cerebral palsy is often the result of this type of medical negligence.
The difficulty of “causes”
In order for a patient to file a medical negligence claim, he or she must prove (1) that the medical professionals had a duty to provide a standard of care and did not, (2) that the patient suffered an injury or injuries, and (3) that the injury was caused by the alleged medical negligence.
What does “standard of care” mean? It differs from state to state. Some laws limit the standard to doctors in the same part of the country, while others extend the standard to doctors at the national level. For example, a cardiac surgeon will be held to the standard of other surgeons in the same field. If he or she acted in a way that is different from the way most cardiac surgeons would have acted in similar circumstances, it can be determined that that surgeon was medically negligent.
Since the body is made up of interconnected systems, ‘causation’ is a complicated problem in medical negligence. The medical staff might argue that the treatment did not cause the injury, but that it was instead caused by a condition the patient already had.
Psychologists and psychiatrists can also be prosecuted for medical negligence, although cases like this are much more difficult to prove because not only are the injuries non-physical, but the causation is particularly complex.
In any type of case, the attorneys assigned by the doctors’ malpractice insurance company will likely try to argue that the injury was not caused by medical negligence.
For this reason, people who are injured are advised to hire a lawyer to help them negotiate a settlement to recover the costs incurred. Attorneys in this situation work on a “contingency” basis, meaning they don’t require the client to pay them. Their fees depend on receiving settlement money from the insurance company for medical malpractice. If the attorney manages to get a settlement for the client, he or she takes a percentage of the money as a fee. If the attorney fails, he or she will not earn money for the work. As a result, lawyers work hard to secure settlements for their clients.
In some states, the settlement may include money for pain and suffering, which is not a reimbursement of expenses, but payment for the emotional distress resulting from the injury. Some states also allow “punitive damages” for gross negligence or misconduct. The amount allowed for such damages is often limited. For example, in the state of California, no more than $250,000 can be awarded for non-economic damages.
In case of gross negligence or misconduct, the local authorities can also be criminally prosecuted against the doctor or medical institution. This action is independent of a medical error. In a criminal case, the plaintiff is the city or state. A medical malpractice lawsuit is called a “civil” action and the plaintiff in that case is the injured patient. However, both the criminal cases and the civil cases would have one or more suspects in common. The defendant is the person defending the claim – the party or parties who would have been medically negligent.
Note that only in cases of gross negligence will the health department take a doctor’s medical license.
Do all cases of medical negligence go to court?
Most of these cases are settled out of court, but when the parties cannot agree on a settlement amount, the case goes to court. A judge or jury then decides whether the patient is entitled to money and how much. However, years of negotiations can pass before a case goes to court. During this period, the lawyers of both parties prepare legal documents that answer the questions of the other party. These are called “pre-trial discovery” papers.
Statements are also often made by parties. These are interviews that allow the opposing party’s lawyers to ask questions.
It is not uncommon for a settlement to occur in court during the jury selection process. This is a tactic that pushes both sides against the wall and tries to force them to give in. The plaintiff wants the defendant to give in by bidding more money in the settlement while the defendant wants the plaintiff to give in by accepting the current settlement offer. No one ever wants to take a case to court if it can be helped, because court costs are much higher than out-of-court settlements.
However, if a defendant’s attorney believes that money could be saved by refusing a high settlement demand, a lawsuit is likely.