Questions on Law- Healthcare Malpractice

Hello. I am an attorney practicing in Maryland, D.C., and soon in Virginia, but this blog will be very generalized so that it is not specific to one jurisdiction. The purpose of this blog is to post general information for your rights with regards to various types of personal injury matters, including car accidents, work injuries, medical and dental malpractice, nursing home negligence, products liability, and social security disability. My goal is to provide you with as much information as possible so you are more informed prior to contacting or retaining an attorney to represent you. Each blog posting will cover a specific area of personal injury law. I will update my blog from time to time as necessary. If you have any questions, I can be reached at 240-993-9850 or via e-mail at andrewsindler@aol.com.

PERSONAL INJURY IN GENERAL

It's only natural that when we suffer bodily injury, no matter how severe, we want to blame someone and possibly even be compensated if someone else was at fault... but how far will the law allow us to go? It depends on the type and nature of the injury. To make it easier, I'll break it down by topics. This one is devoted to Healthcare Malpractice.

HEALTHCARE MALPRACTICE

We’ve all heard the words medical malpractice (usually referred to by the short hand abbreviation “med mal”). It should really be more appropriately termed healthcare negligence, because contrary to popular belief, malpractice or negligence of this nature can occur at the hands of a doctor, dentist, therapist, nurse or nurse practitioner, or even a collective body including a hospital, hospice, nursing home, or assisted living home, just to name a few. This post will be very similar to the Personal Injury- Car Accident posting, in that the INJURIES AND DAMAGES, and FINDING THE RIGHT ATTORNEY sections are virtually identical and won’t need to be repeated. Also, on a side note, the standards referred to in this post apply also to professional malpractice in general (e.g. legal malpractice, accountant malpractice, etc.), but those can be explained later.

What constitutes medical malpractice?

Medical malpractice occurs when a healthcare provider (as defined by the relevant state law) violates the standard of care in treating and caring for a patient. The standard of care is the duty owed to the patient by the healthcare provider or organization (be it a doctor, dentist, therapist, hospital, nursing home). Generally speaking, because healthcare providers are professionals who have a higher level of the “3 E’s,” Education, Expertise and Experience, they are held to a higher standard or duty of care that they owe to their patients (versus that which would be owed if a layperson attempted to render medical care to a person who passes out on the street, for example).

Healthcare professionals are required to use a higher degree of skill and care in diagnosing, evaluating, examining, treating and caring for patients at all times, and patients are entitled to rely on such skill and care. While there are many different varieties of “breaching or violating the standard of care,” some of the more common ones include the following:

1. Botched surgeries or procedures (i.e. the doctor messes up and makes you worse);
2. Misdiagnoses or Late Diagnoses (such that the failure to timely diagnose an illness or condition causes worse problems and further complications than if it had been diagnosed timely and properly);
3. Failure to provide proper information prior to the patient giving consent to partake in the procedure or treatment (i.e. the patient did not give “informed consent” because the patient did not know all the risks and dangers of a given course of treatment);
4. Negligent or neglectful caring for inpatients (in hospitals or nursing homes for example- such that the person becomes injured or his/her condition worsens);

The common thread among all forms of malpractice again remains that a standard of care was violated, and the violation of the standard of care directly caused the injury(ies) and/or damages which result.

CLAIMS AND LAWSUITS

Again, this will vary from state to state and jurisdiction to jurisdiction. Some states, including Maryland, require that you file an initial complaint of malpractice with an administrative agency that regulates healthcare professionals or organizations. The complaint is similar to that which would begin a lawsuit in court, and normally such complaints will end up as lawsuits in court unless they settle beforehand.

The most important component that is required prior to filing such a complaint is to obtain an expert who can review the events which are the basis for the claim of malpractice, including reviewing medical documentation and reports. Once you have obtained an expert, he/she must certify that there was a violation of the applicable standard of care by the healthcare professional or organization. Without this certification, a malpractice claim cannot stand.

Because these types of claims are so time consuming, expensive, and complex (given the difficult nature of medical malpractice), they often will settle out of court if the claims are valid. This is to explain why all healthcare professionals and organizations must carry malpractice insurance, and like car insurance, the insurance carrier of the negligent healthcare provider will pay any such valid claim or settle any such lawsuit. These types of lawsuits are also commonly lengthy, multi-day trials (it is not uncommon for malpractice trials to last over a week!). Your attorney can certainly help guide you through this stressful and trying experience.

WHAT TO DO IF YOU SUSPECT YOU ARE THE VICTIM OF HEALTHCARE MALPRACTICE

1. Seek immediate medical treatment or evaluation and keep track of your new injury, condition, or illness that you believe was caused by a healthcare provider's negligence.

2. Keep a regular journal or diary. If the injury occurred to a loved one who is not capable of doing so, keep a journal or diary for them. Include daily notes of problems experienced, limitations in daily activities, medical treatment sought or received, expenses incurred (for medical treatment, and anything else related to your medical treatment- like hiring a housekeeper to help around the house, for example) time missed from work, and any other relevant information.

3. Consult with an attorney immediately! You may not be fully aware of your rights, and don't forget, you have a time limit (statute of limitations) in which you can file such a lawsuit, or you will be forever barred from bring such a claim.

4. NEVER SPEAK to anyone about this claim without first consulting an attorney. If you have an attorney, it is unlawful and unethical for anyone to try to speak to you about your claim.

5. Remain calm and patient, and know that your attorney will work hard to determine if you have a valid claim, and to make sure you get what you deserve if you do.


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