Medical Malpractice: Patient Rights

The medical profession comprises many different types of physicians trained and certified in various types of health specialties, as well as general practice physicians and clinical support professionals, such as nurses, diagnostic technicians, and pathologists, to name just a few. 

There are also institutional medical and healthcare providers, including general and specialty hospitals, urgent care clinics, burn trauma centers and nursing homes. 

This article will provide you with an introductory understanding of the types of medical and healthcare malpractice in the following areas: 

• Medical Malpractice
• Nursing Malpractice  
• Pharmacist Malpractice
• Nursing Home Malpractice

The Law of Medical Malpractice

In personal injury law, “medical malpractice” is the term used to describe negligence committed by physicians and their clinical and institutional support staff. 

Medical Standard of Care

Malpractice by a health care provider occurs when their performance of their professional duties falls below the standard of practice and care of those with similar training and experience, resulting in harm to the patient.

Standard of Care Varies By State

The prescribed standard of medical care may vary from state to state. Since healthcare providers cannot guarantee the results of medical treatment. This means that just because the medical provider’s treatment was not successful does not mean the provider was negligent.

Types of Medical Malpractice

Examples of Medical Malpractice Include: 

• Misdiagnosing a patient’s condition 
• Delay in diagnosing a patient’s condition 
• Failing to order routine tests 
• Incorrect Treatment
• Prescribing the wrong drug
• Taking excessive risks without patient consent
• Requesting the wrong specialist consult
• Misreading the patient’s medical history
• Misreading laboratory results
• Anesthesia errors
• Surgical errors

Legally Proving Medical Malpractice

Proving a medical malpractice case can be extremely difficult in most conservative-leaning jurisdictions. One reason is that juries tend to sympathize with doctors rather than the victims of their negligence. Some who serve on juries believe patients who sue their doctors cause other people’s medical insurance rates to increase.

Each state has its statute of limitations rule specifying a specific amount of time within which a medical malpractice lawsuit must be filed. A secondary purpose served by the statute of limitations is to ensure evidence does not get stale and witness memories do not fade.

Other Healthcare Providers

Any licensed healthcare provider can be found liable for medical malpractice. Other than doctors, this can include but is not limited to nurses, pharmacists, nursing homes, 

Nursing Malpractice

Nurses are an essential part of a health care system, and their services and staffing needs must be well-coordinated to provide appropriate levels of patient care.

When you are hospitalized, you are placed directly under the hospital’s care and its frontline staff, usually a nurse or nurse assistant.

Nurses have various responsibilities that include monitoring the patient’s condition, recording the monitoring results through proper charting, and timely notifying the doctors of the patient’s change in condition when appropriate.

Most of the time, nurses provide excellent care. However, in some cases, they may fail to:

• Dispense the correct medications 
• Misinterpret dangerous warning signs  
• Fail to recognize medical emergencies and notify the appropriate medical specialist
• Fail to chart properly or misinterpret the doctor’s charting

Pharmacist Malpractice – Wrong Prescription

In personal injury law, pharmacist malpractice is the failure of the pharmacist to exercise the degree of skill expected compared to the craft of other pharmacists with similar training from the same or similar geographical location. 

Common Malpractice For Pharmacists

For example, if the pharmacist suspects or should have known the medication for a particular patient were contraindicated, the immediate responsibility of the pharmacist would be to contact the physician’s office to verify the prescription and dosage and caution the patient of the drug’s possible adverse effects.

Should you receive the wrong medication for your condition and, as a result, suffer severe illness, you will likely have a malpractice claim against both the doctor for prescribing the wrong medication and the pharmacist who dispensed the drug.

Nursing Home Negligence

Residents of nursing homes are potentially very vulnerable to negligence claims. Over-medicating and neglect are present all too often in nursing homes. Many states have different laws covering elder abuse to address this problem.

In some states, if the misconduct of nursing home staff constitutes more than simple medical negligence, elderly persons can bring a legal action for Elder Abuse. In such instances, damages are increased, and remedies not available in other cases are allowed in elder abuse cases.

Physician Negligence – Amputation Cases

If you were forced to undergo a partial or complete amputation of an upper or lower extremity, you would need to consider whether the amputation resulted from medical negligence and many other causal factors.

These cases are challenging to prove because emergency and trauma physicians must make difficult medical decisions based on competing medical risks, especially in a hurried trauma setting. The law allows you to recover against your healthcare provider, even with a pre-existing condition, so long as the physician’s 

negligence can be determined to be the proximate cause of the amputation. In other words, the patient would not have required the amputation for the physician’s medical negligence.

How Is A Medical Malpractice Liability Legally Evaluated 

Medical Review of Records By A Medical Expert

The presence of medical negligence can be determined through an expert medical review of your medical records in concert with your personal injury attorney.

Medical Expert Must Be In the Same Specialty

A medical malpractice suit may be brought against a physician whose medical care fell below the accepted standard of care within the physician’s specialty or range of expertise. 

However, a general medical doctor should not review or provide medical opinions about other medical specialty areas, such as orthopedic surgery.

For example, based on this standard, if your doctor was careless, lacked the proper skills to perform such a procedure, or disregarded established rules and medical protocol, such as failing to recognize the need to refer the patient to another type of medical specialist, any one, or combination of these acts or omissions can be considered medical negligence. 

Therefore, the doctor can be legally responsible for what ensues, including an otherwise unnecessary amputation.

You should obtain all your medical records and consult with a medical malpractice attorney and a forensic physician to determine whether or not you have a legal basis to bring a medical malpractice claim.

Recovery of Damages 

Legal Recovery in Medical Malpractice Cases

Since the consequences of medical practice cases can be devastatingly severe and affect almost every aspect of the patient’s life, the law provides a wide range of possible economic and general damages to be awarded. 

However, monetary limits have been set on general damage in many states, such as California. One such limit is California’s Medical Insurance Reform Act (MICRA).

Economic Damages

Medical Economic Damages Can Include:

• Past and Future Medical and Hospital Bills
• Past and Future Loss Earnings
• Loss of Earning Capacity
• Cost of Home Medical Supplies
• Cost of Pharmasuticals
• Cost of Home Nursing
• Cost of Home Caretakers
• Cost of Vocational Rehabilitation

General Damages

Medical Malpractice General Damages Can Include:

• Compensation for Pain and Suffering
• Compensation for Loss of Enjoyment of Life
• Compensation for Disfigurement
• Loss of Consortium

The Medical Board. Not only do you have the right to file a lawsuit against your doctor, but you can also report your complaints to the state medical board. Medical boards take patient complaints seriously, especially if the doctor has a history of malpractice claims. The medical board must investigate your claims. The doctor must fully cooperate and respond to the medical board, including providing the answers and documentation required to complete the board’s investigative process.

Medical Malpractice Attorneys

If you have questions or require additional information about your legal rights and obligations, consult a verified Personal Injury Lawyer with substantial medical malpractice experience as soon as possible.