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How do I Know if I have a Medical Malpractice Case?

Several surgeons operating on a patient in the operating room.

Following a medical procedure or treatment, patients usually expect their ailment, illness, or injury to improve or resolve. Unfortunately, this is not always the case. In some cases, a person is left worse off than before. How can you tell if the ineffectiveness or negative outcomes of a treatment or surgery are due to medical malpractice?

If a procedure or treatment does not have the intended result, it does not necessarily mean medical malpractice occurred. Simply being unsatisfied with the outcome of a medical treatment does not mean the treating healthcare provider will be on the hook for medical malpractice.

Patients bringing forth a medical malpractice claim in the United States generally have to prove four elements:

  1. A legal duty on the part of the healthcare provider to provide treatment or care (a doctor-patient relationship);
  2. A breach of the legal duty by the healthcare provider to adhere to the standards of the profession (medical negligence);
  3. Causality between the alleged breach of duty and injury sustained by the patient; and
  4. Damages stemming from the injury sustained by the patient caused by the healthcare provider’s breach of duty.

Oftentimes, patients have pre-existing injuries or conditions that could contribute to the undesired result from the treatment. In medical malpractice cases, medical experts from a wide range of specialties will likely be called upon to testify on your behalf that the results of the treatment were in fact caused by the negligence of the healthcare provider and not a prior injury.

In general, most injury claims require the presence of damages, which may include physical pain, permanent disfigurement or disability, emotional or mental anguish, lost future earnings, or additional medical costs. In a medical malpractice case, these damages must be a result of the injuries sustained by the patient due to the healthcare provider’s negligence.

What is a Breach of the Medical Standard of Care?

Although each of the four elements can be difficult to prove, proving that the healthcare provider breached the standard of care for the given procedure or treatment is perhaps the most contentious. Not only does the plaintiff’s legal team have to determine what exactly the standard of care is for the unique case but also show how the healthcare provider failed to meet the standard. Both of these tasks can be incredibly difficult and will require extensive testimony from one or more experts in the appropriate medical field.

It is possible that a doctor can adhere closely to the medical standard of care and still perform an error. If the given error is within the scope of the risks associated with the treatment or if the error did not causally contribute to the patient’s injury, the case for medical malpractice is weakened.

What are Common Types of Medical Malpractice?

When people think of medical malpractice, usually the first thing they envision is a form of error that occurred before, during, or after a medical procedure. However, there are several different situations that could lead to a valid medical malpractice claim:

  • Delayed diagnosis or misdiagnosis
  • Prescription errors
  • Anesthesia complications
  • Injuries during childbirth (to the mother or child)
  • Surgical errors
  • Lack of informed consent

In each of these cases, the plaintiff must prove that the healthcare provider failed to adhere to the standard of care that any other reasonably careful healthcare provider in the same position would have.

In cases of a lack of informed consent, a doctor may perform a procedure skillfully but a complication associated with the procedure occurs. If the doctor failed to warn the patient about the potential for this complication to arise, the doctor failed to meet the standards of care of that any reasonably prudent doctor in the same situation would. A patient with proper warning of the complication may have chosen to forego the procedure.

Have you been the Victim of Medical Malpractice?

If you believe that you or a loved one have been the victim of medical malpractice, contact Thomas J. Henry immediately. Dealing with a significant injury or a loss of a loved one after a medical procedure can be difficult and emotionally draining. Our attorneys have experience handling a variety of complex malpractice cases and can help you determine if you have a legitimate claim to make against a healthcare provider or facility. Contact us today for a free legal consultation.

Hospital Cited as a Cause of Boy’s Death While Using a Heating Blanket 

A young boy died while he was in the hospital after being left under a heating blanket for a long period of time, causing his body temperature to soar to a deadly level.

Details on the Heating Blanket Death

The 6-year-old boy died at Penn State Hershey Medical Center after he was left under a heating blanket without having his temperature checked for 10 hours.

It was reported that the child had arrived at the hospital with a below normal temperature, so he was then given the heating blanket. The hospital records show that he didn’t have his temperature checked over the course of 10 hours. The hospital also said that the boy had “ongoing, complex and life-limiting health issues.”

Once he finally had his temperature checked, it had risen to 107 degrees Fahrenheit and his blood pressure dropped, so he was taken to the ICU where he later died.

While the protocol for officially reporting deaths is to notify the health department within 24 hours, the hospital waited 77 days to do so.

Because of this incident, the hospital has launched its own investigation for find out more information on what led to the boy’s death.

More Than 250,000 Die from Medical Errors Every Year

Research suggest that at least 250,000 people died due to preventable errors in hospitals in 2013  – far exceeding the number of deaths attributed to strokes and Alzheimer’s combined.  According to Discovery News, this new study supports a previous analysis which estimated that 250,000 to 440,000 preventable medical error deaths occur each year, making medical errors the third leading cause of death in the U.S.

Currently, the United States uses a system for collecting national health statistics which is recommended by the World Health Organization; however, this system does not keep track of medical errors. This means there is no way of knowing the exact number of deaths caused by botched surgeries, faulty prescriptions, or simple computer glitches.

Additionally, researchers reported that the death toll from medical errors would have been even higher had they chosen to include nursing homes and out-patient care in their analysis. The study’s authors hope their work will help shine light on what they claim is one of the most underreported endemics in global health.

Texas Dentist Facing Charges After 4-Year-Old Suffers Brain Damage

A Texas dentist was indicted Monday for a 2016 incident which left a 4-year-old girl with permanent brain damage.

Dentist Accused of Overdosing Child and Waiting to Notify Emergency Responders

According to FOX News, Dr. Bethanial Jefferson is accused of intentionally and knowing by omission causing serious bodily harm to a child by failing to seek and provide adequate medical attention.

Courissa Clark says she brought her daughter, Nevaeh Hill, to Jefferson’s office in Houston to have a tooth pulled. Upon receiving anesthesia, Nevaeh suffered a seizure and severe brain damage. Navaeh is now confined to a wheel chair and will be brain damaged for the rest of her life.

Court documents say that Jefferson administered too many sedatives in combination with other drugs, causing Nevaeh to fall into respiratory distress. The distress reduced oxygen levels to her brain, resulting in brain damage.

After the incident, Jefferson allegedly placed Nevaeh in a recovery room where she remained for several hours without adequate medical care before Jefferson finally contacted 911.

Dentist Facing Criminal and Civil Litigation

Jefferson has since been suspended from practice by the Texas Board of Dental Examiners, and Clark has filed a civil case against Jefferson on behalf of her daughter.

On Tuesday, a judge issued a warrant for Jefferson’s arrest. Jefferson turned herself in to Montgomery County Jail but has been released on $50,000 bond.

Wisconsin Court Rules Medical Malpractice Caps Unconstitutional

An appellate court has sided with a Milwaukee woman who lost all four limbs due to medical malpractice and ruled statutory caps on non-economic damages unconstitutional.

Woman to Collect $16.5 Million in Pain and Suffering

Ascaris Mayo, a 57-year-old mother of four, had all of her limbs amputated in after doctors failed to properly diagnose a Strep A infection which later led to septic shock, reports the Milwaukee Journal Sentinel.

In July 2014, a jury determined that Mayo’s healthcare providers were negligent in their diagnosis and care of the infection and were responsible for the resulting amputations. Mayo was awarded $25.3 million.

However, restrictions to the amount Wisconsin victims can collect for non-economic medical malpractice meant that Mayo could only receive $750,000 of the $16.5 million awarded to her and her husband for pain and suffering.

The 1st District Court of Appeals ruled Wednesday that this should not be the case. The court noted that the cap is unconstitutional on its face and places an illogical burden on catastrophically injured patients, denying them equal protection under the law.

The case is expected to be appealed at the Supreme Court.

The 1st District Court of Appeals’ decision comes just days after a bill that would create similar limits at a federal level passed the Republican-controlled House.

Current House Bill Would Impose Even Stricter Regulations

If passed, the Protecting Access to Primary Care Act (PAPCA) would cap non-economic malpractice damages to only $250,000.

Additionally, the House bill would:

  • Exempt clinicians who order a drug or medical device from class-action and product liability lawsuits.
  • Require damages exceeding $50,000 be paid in installments.
  • Reduce the statute of limitations for a malpractice suit to 3 years after the wrongful act or 1 year after the plaintiff discovers it (whichever comes first).

Supporters of the bill say PAPCA will reduce premiums and deter frivolous lawsuits; however, opponents view the bill as an infringement on injured plaintiffs’ rights and state prerogatives.

Medical Malpractice Rates in the United Sates

According to the BMJ, medical errors result in 251,454 deaths every year, making it the third leading cause of death in the United States behind heart disease and cancer. Even when not fatal, medical errors can result in a life-time of pain and disability.

It is important to note, not all medical errors will result in a medical malpractice claim. In fact, medical malpractice requires that plaintiffs prove:

  • A doctor-patient relationship existed
  • The doctor was negligent in their diagnosis or treatment
  • The doctor’s negligence was the cause of the injury claimed
  • The injury claimed led to specific damages

Common forms of medical malpractice include:

  • Misdiagnosis or delayed diagnosis
  • Childbirth injuries
  • Medication errors
  • Anesthesia errors
  • Surgery errors

 

Bill Seeking to Cap Malpractice Damages Passes House

A bill seeking to cap noneconomic damages that could be collected in medical malpractice lawsuits passed the House of Representatives yesterday. Should the bill become law, injured plaintiffs would be allowed to collect no more than $250,000 in noneconomic damages for cases of medical malpractice.

Bill Introduces Multiple Tort Reforms That Would Dampen Litigation

According to Medscape, the Protecting Access to Primary Care Act (PAPCA) passed the Republican-controlled House with a mostly party-line vote of 218 to 210.

Supporters of the bill say PAPCA will reduce premiums and deter frivolous lawsuits; however, opponents view the bill as an infringement on injured plaintiffs’ rights and state prerogatives.

Currently 22 states have caps on noneconomic damages and five others limit total damages an injured malpractice plaintiff can collect. Most recently, legislators in Florida attempted to limit noneconomic damages to $500,000 in malpractice cases and $1 million in cases of catastrophic injury. The state’s high court struck down the law claiming the restrictions were arbitrary and unconstitutional.

In addition to capping noneconomic malpractice damages to $250,000, the House bill would:

  • Exempt clinicians who order a drug or medical device from class-action and product liability lawsuits.
  • Require damages exceeding $50,000 be paid in installments.
  • Reduce the statute of limitations for a malpractice suit to 3 years after the wrongful act or 1 year after the plaintiff discovers it (whichever comes first).

Medical Malpractice Rates in the United Sates

According to the BMJ, medical errors result in 251,454 deaths every year, making it the third leading cause of death in the United States behind heart disease and cancer. Even when not fatal, medical errors can result in a life-time of pain and disability.

It is important to note, not all medical errors will result in a medical malpractice claim. In fact, medical malpractice requires that plaintiffs prove:

  • A doctor-patient relationship existed
  • The doctor was negligent in their diagnosis or treatment
  • The doctor’s negligence was the cause of the injury claimed
  • The injury claimed led to specific damages

Common forms of medical malpractice include:

  • Misdiagnosis or delayed diagnosis
  • Childbirth injuries
  • Medication errors
  • Anesthesia errors
  • Surgery errors

3 Women Blind After Receiving Eye Treatment at Florida Stem Cell Clinic

Three women have were left nearly blind or totally blind after receiving an unproven medical procedure at a for-profit stem cell clinic in Florida.

Treatment Method Has Yet to Be Tested for Safety in People

According to CBS News, the treatment method used on the women has not been proven effective and has not undergone testing to determine whether the treatment is safe for humans. The treatment involved injecting a cell preparation derived from each of the patient’s own fat tissue into both of the patient’s eyes.

Ophthalmologists who examined the women following their treatments said all the women had fairly functional vision before the procedure and that all the women were totally or legally blinded within a day of receiving the treatment.

Ophthalmologists determined that the women had all suffered detached retinas in both eyes and that the women’s vision is not expected to improve.

Clinic Was Listed on Federal Database

Reports state that the three women, all in their 70s and 80s, were seeking treatment for age-related macular degeneration – a leading causes of vision loss in individuals over the age of 50. The women were charged $5,000 for the unproven treatment.

Two of the women stated they had decided to go to the clinic because it listed a macular degeneration study on a federal data base overseen by the National Institutes of Health called ClinicalTrials.gov; however, the clinic removed the study before any patients were recruited to participate.

By the time the women had opted to undergo the treatment, consent forms listed the treatment as a medical procedure and not a clinical study.

One of the ophthalmologists who observed the women stated that many stem cell clinics allege that they are not subject to FDA regulations. As such, he urges patients to receive written documentation that a treatment has been registered with the FDA and that patients should always make sure they are being treated by a licensed physician.

Family Awarded $250K in Medical Malpractice Lawsuit over Man’s Death

Mature male surgeon gazing and looking at camera at hospital, close up shot

According to The Telegram & Gazette, a family was awarded $250,000 in a medical malpractice case after a jury finds a Massachusetts hospital negligent in the death of a 78-year-old man.

Hospital Disagrees with Jury Verdict

George Strom Jr., 78, went to the emergency room at UMass Memorial Medical Center – Memorial Campus on Easter Sunday in 2008. Strom Jr. was suffering from shortness of breath and unexplained weight gain and was admitted for treatment of congestive heart failure (CHF) and atrial flutter.

The Telegram & Gazette reports that Strom Jr.’s condition deteriorated his first night at the hospital and was arranged to be transferred to critical care. However, nurses did not move him to the new unit for another 11 hours when he became unresponsive.

He was rushed to the critical care unit but remained unconscious, according to The Telegram & Gazette. He would be removed from life support 11 days later.

The jury found that the hospital was negligent because of the delay in moving Strom Jr. to the critical care unit. They believed that the negligence contributed to the cause of his death, according to The Telegram & Gazette. The family was awarded $250,000 after 15 hours of jury deliberations.

Information about Medical Malpractice

According to the American Medical Association, medical malpractice leads to 225,000 deaths every year. It also leads to countless injuries, which can leave survivors with debilitating, life-altering conditions. Medical malpractice claims can help injured victims and their families recover damages for past and future medical expenses, loss of wages, and even pain and suffering.

Common types of medical malpractice include:

  • Misdiagnosis or delayed diagnosis
  • Childbirth injuries
  • Medication errors
  • Surgery errors
  • Anesthesia errors

Jury Awards Family of Girl $14.5M in Medical Malpractice Lawsuit

three doctors in scrubs treating a patient in surgery room

According to The Las Vegas Review-Journal, a Clark County jury awarded $14.5 million to the family of an eight-year-old girl in a medical malpractice lawsuit in Las Vegas, Nevada.

Girl Requires Bone Marrow Transplant, Blood Transfusions

The malpractice suit alleged that MayRose Hurst, 8, sustained a debilitating brain injury because doctors did not diagnose and treat a genetic blood disorder following her birth. The girl was delivered prematurely and treated in the neonatal intensive care unit (NICU).

The Las Vegas Review-Journal reports that doctors failed to tell MayRose’s parents that she had severe anemia and that her body wasn’t producing adequate amounts of red blood cells. MayRose suffered from severe brain damage, leaving her mostly blind and unable to walk or talk.

MayRose’s mother says the verdict will help the family pay for the treatment, caregivers, and equipment that her daughter needs to live life as normally as possible. The girl will require a bone marrow transplant and monthly blood transfusions, reports The Las Vegas Review-Journal.

The jury found that Ali Piroozi, a doctor, was 40 percent at fault, and a pediatrician, Ralph Conti, was 60 percent at fault. Because Conti had previously settled with the family for $2 million, the family can only collect about $5.8 million from Piroozi or his insurance company.

Medical Malpractice Claims

According to the American Medical Association, medical malpractice leads to 225,000 deaths every year. It also leads to countless injuries, which can leave survivors with debilitating, life-altering conditions. Medical malpractice claims can help injured victims and their families recover damages for past and future medical expenses, loss of wages, and even pain and suffering.

Childbirth Injuries
  • Negligent prenatal care most often includes failure to diagnose medical conditions of the mother, birth defects, or diseases that transfer from mother to fetus.
  • Negligence during childbirth can also cause childbirth injuries. Negligence can include failure to respond to fetal distress, incompetent use of forceps or vacuum extractors, and failure to anticipate or act on birthing complications.

Woman Receives $2M Settlement in Malpractice Lawsuit Against Doctor

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According to the Connecticut Post, a doctor in Norwalk, Connecticut, agreed to pay $2 million to a woman who claims in a malpractice lawsuit she received a misdiagnosis for the worst headache of her life.

Information about the Malpractice Settlement

Margaret Gabriele claimed that in September of 2011, Dr. Donald McNicol saw her for a severe headache. Gabriele says McNicol did not perform the proper and necessary neurological examinations.

According to the Connecticut Post, McNicol failed to notice that Gabriele suffered from a significant neurovascular event.

The medical malpractice suit claims Gabriele suffered a rupture intracranial aneurysm, which resulted in permanent injury. In addition, the condition caused Gabriele to require assistance in all aspects of her daily life. McNicol settled just as the case was about to go to trial, according to the Connecticut Post.

Information about Medical Malpractice

According to the American Medical Association, medical malpractice leads to 225,000 deaths every year. It also leads to countless injuries, which can leave survivors with debilitating, life-altering conditions. Medical malpractice claims can help injured victims and their families recover damages for past and future medical expenses, loss of wages, and even pain and suffering.

Common types of medical malpractice include:

  • Misdiagnosis or delayed diagnosis
  • Childbirth injuries
  • Medication errors
  • Surgery errors
  • Anesthesia errors

Couple Awarded $11.5M in Malpractice Lawsuit over Childbirth Complications

three surgeons in scrubs examining patient and performing surgery

According to the Omaha World-Herald, a jury in Douglas County, Nebraska, awarded a couple $11.5 million after a medical malpractice suit claimed hospital staff caused severe brain damage to the couple’s child during birth.

Hospital Claimed no Wrongdoing or Failure by Staff

The malpractice lawsuit argued that the hospital staff grossly mismanaged the delivery of the child. The family’s attorney says breathing problems occurred and were not addressed, causing significant damage to the baby’s brain. In addition, the lawsuit alleges improper use of forceps that caused permanent brain damage, leaving the child disabled.

The family attorney says the fact that the child’s electronic records were tampered with also played a key role in the jury’s decision.

Attorneys for the hospital argued that the child suffered a stroke unrelated to the actions of the hospital staff and that they met the proper standard of care.

Medical Malpractice Information

According to the American Medical Association, medical malpractice leads to 225,000 deaths every year. It also leads to countless injuries, which can leave survivors with debilitating, life-altering conditions. Medical malpractice claims can help injured victims and their families recover damages for past and future medical expenses, loss of wages, and even pain and suffering.

Childbirth Injuries
  • Negligent prenatal care most often includes failure to diagnose medical conditions of the mother, birth defects, or diseases that trasnfer from mother to fetus.
  • Negligence during childbirth can also cause childbirth injuries. Negligence can include failure to respond to fetal distress, incompetent use of forceps or vacuum extractors, and failure to anticipate or act on birthing complications.