What is a Medical Malpractice Case?

• Medical malpractice occurs when a doctor or another medical professional (such as a nurse or technician) partakes in a negligent action or delivers a fraudulent action that causes an injury to a patient. If you need legal advice and assistance, contact medical malpractice lawyers.

• A victim of medical malpractice–an individual who experiences an injury at the hands of a wrongful or negligent action by their medical professional—will initiate a medical malpractice case to seek a recoupment for their losses. When an individual is injured through the actions of their health care provider, they will invariably incur damages through the presence of lost wages, emotional damages, or additional medical costs. As a result of these costs, the individual will file a medical malpractice case in the hopes of obtaining a financial settlement.

• All medical malpractice cases are heard by a district court; the actual trial is similar to a negligent tort case. The verdict is handed down by a judge of a public court system.

• To initiate a medical practice case you must meet the requirements of a negligent tort claim. Medical malpractice claims, in essence, are attempts taken by a plaintiff to definitively prove an act of negligence that directly caused an injury or death. The following elements must be proven to deliver a favorable settlement for a plaintiff in a medical malpractice lawsuit:

• The health care provider must initiate a legal duty, meaning the medical staff or hospital must accept a patient for care—they must perform a medical operation, give a diagnosis, or treat a patient.

• The physical duty undertaken by the medical provider must be breached or delivered in such a way that directly violates the relevant standard of care.

• The breach of the physical duty must cause an injury to the patient. The action must be considered negligent or wrongful and must directly lead to an injury suffered by the patient.

• The patient must suffer from tangible injuries or damages as a result of the doctor or medical provider’s actions.

How to File a Medical Malpractice Lawsuit?

• A medical malpractice is typically defined as negligence—it is a failure to act as a prudent medical professional would under similar circumstances. To file a medical malpractice suit you must first investigate the standards of care regulated by the American Medical Association and the National Institute of Health.

• Gather as much information about your particular case as you can. Start at the beginning; record appointment dates, doctors’ names, referrals to other doctors, and any bills or costs related to medical malpractice, including all lost wages and opportunity costs incurred.

• Following your investigation, and the obtainment of all necessary documents, hire a medical malpractice attorney to facilitate your claim. Be sure to choose an experienced medical malpractice attorney who is well-versed in the various laws and interpretations of medical laws in your particular jurisdiction. Conduct interviews to gather all information concerning your prospective malpractice lawyer. After you hire a medical malpractice attorney, be sure to deliver all information and copies of essential documents upon meeting him or her.

What is Medical Malpractice Insurance?

• Medical malpractice insurance is a financial-based instrument available only to physicians or those individuals involved in healthcare. By purchasing a medical malpractice policy, the physician or medical professional is protected in the event of a judgment against them for medical negligence, malfeasance, or in general malpractice.

• The majority of states in America require that physicians have some form of medical malpractice insurance to protect them from a faulty or negligent action. In addition to a state mandate, the majority of hospitals or medical institutions will require physicians to be obtain a form of coverage—institutions will require the obtainment of a policy to protect them against costly settlements.

How Medical Malpractice Insurance Works

• A physician will purchase a medical malpractice policy from either a commercial insurance company or a mutual insurance company that is operated by a health care provider or medical professional. The physician can either choose individual coverage or be a part of a policy that incorporates the underlying practice or institution in which the doctor is employed.

• The form of coverage purchased is dictated by the individual physician’s employer. Those doctors or medical professionals employed by the United States Federal Government will not be required to purchase a medical malpractice insurance policy—any lawsuit against the federal government is self-insured.

How is the Medical Malpractice Premium Determined?

• The majority of physicians are rarely sued or sued infrequently. As a result, the data attached to a premium calculation is actuarially unsound. This characteristic makes it impossible for a physician to be “rated” or “classified” based on past history. In addition, the claims filed against a doctor are based on circumstance, making the issues concerning with a premium determinant difficult to gauge.

• As oppose to past histories, the premiums associated with medical malpractice insurance are determined based on specialty. All physicians are classified based on their medical field or their specialty.  Each classification is attached to a rate based on the probability of an occurrence of a medical malpractice issue. For example, orthopedic surgeons are more susceptible (as a result of the skill required to perform surgery) to negligent actions or mistakes, and as a result, are more likely to face a medical malpractice suit. As a result of this general susceptibility, orthopedic surgeons will face higher premiums for their medical malpractice insurance policies. In addition, the location of the physicians or medical professionals practice, will affect the premium level.

• As a result of the rising number of medical malpractice cases, insurance companies are realizing that the business of offering medical malpractice insurance is not indisputably profitable. This realization has increased premiums and placed a strain on the medical field.

What is a Medical Negligence Claim?

• A medical negligence claim is a direct legal action taken by a patient who falls victim to the negligent or wrongful actions of a medical provider or medical professional. All medical professionals work under a code of ethics. Considering the importance of their role, all physicians and medical professionals are required to provide suitable support and medical advice to their patients. These actions must be delivered in the patient’s best interest to accurately treat, diagnosis, or rehabilitate the individual. A failure to deliver this expected course of conduct may result in the filing of a medical negligence claim.

• To be considered medical negligence, the patient in question must suffer from an injury or some form of damage that arose from the medical professional’s actions.  These actions are not always direct; a misdiagnosis or a faulty prescription can result in long-term effects. Regardless of the specifics, all medical negligent claims are filed because the patient (who expected to receive suitable care) was injured, harmed, or suffered some form of loss as a result of the doctor’s negligent or wrongful actions.

• Medical negligent claims are filed through the civil court system of the particular jurisdiction in which the negligent or wrongful action took place. A medical negligent claim is filed by the patient to recoup finances from their injury. When an individual falls victim to a negligent or fraudulent medical action they will invariably suffer from sort of pain—emotional or physical pain must be present which results in the loss of wages or emotional distress.

• The laws associated with medical negligence claims–meaning the grounds for what constitute a medical negligent action—are dictated through state interpretation. Medical negligence is not always a direct issue; similar to other personal injury claims the negligent actions must be directly linked to the patient’s suffering.

• In addition to the varying interpretations, all states possess different statues of limitations that regulate when a medical negligence suit can be filed.

How to File a Medical Negligence Case

• To recoup finances lost from an injury or emotional distress caused by a doctor’s actions, you must gather all information regarding your particular case. A list of the doctor’s actions, all appointments with the underlying medical provider, prescriptions, diagnoses, and a proof of wages or time lost due to the injury must be presented at the medical negligence trial.

• After all information has been gathered and you understand your particular state’s interpretive laws regarding medical negligence, you must hire a medical malpractice attorney to facilitate your claim. Utilize all resources (the yellow pages, the Internet, word of mouth) before hiring a medical malpractice attorney.

• When an attorney is hired, develop a strategy that will give your case the best opportunity to reach a favorable settlement. The most important aspect of developing a strong case is the obtainment of information and evidence.

What is a Misdiagnosis?

• A misdiagnosis is an inaccurate diagnosis of a medical ailment. Medical professionals can misdiagnose an individual depending on a number of factors; however, in most instances a misdiagnosis is delivered through a negligent action taken by the medical provider or physician. An erroneous diagnosis can take on a number of forms—sometimes a medical problem is identified when the patient has no such ailments, or a diagnosis can be classified incorrectly. Examples of the latter include a doctor who diagnoses a tumor as benign when it is in fact malignant.

• A misdiagnosis is a medical error, and although it may be difficult to gauge given varying symptoms or the presence of inaccurate statistics, all forms of misdiagnoses will portray some form of externalities or adverse side effect.
 

Contact a medical-malpractice-lawyer to acquire legal advice and assistance.

Reasons for a Misdiagnosis?

• There are a number of reasons that will cause a misdiagnosis. People often times blame negligent actions or laziness for an inaccurate diagnosis; however, a misdiagnosis can arise for a number of medical reasons. That being said, the presence of a misdiagnosis may award an individual the right to file a medical malpractice suit.

• Reasons that would not necessitate or warrant a medical malpractice suit for a misdiagnosis include: faulty or malfunctioning medical equipment, a patient’s discretion to conceal critical information, a language barrier between the medical professional and the patient, or a situation in which the symptoms of the ailment did not match the universal diagnosis.

• Reasons that would necessitate or warrant a medical malpractice suit for a misdiagnosis: a negligent action taken by a doctor, a failure to adhere to the code of conduct necessary for all doctors to abide by, or a blatant wrongdoing that stems from laziness or the doctor’s inability to deliver a routine medical action.

Consequences of a Misdiagnosis

• The consequences of a misdiagnosis are variable; for example if a patient’s biopsied tumor is misdiagnosed as malignant when it is in fact benign, he or she will undergo unnecessary medical operations. This obviously would adversely affect the individual’s health and would invariably result in a medical malpractice suit.

• In order for the misdiagnosis to be considered malpractice, the individual must suffer a direct loss through a physical damage. Undergoing unnecessary surgery or chemotherapy will inevitably result in a negative effect in the form of unwarranted scars, sickness, and the loss of wages. These instances are grounds for medical malpractice suits; the individual will file a medical malpractice suit to obtain a recoupment for the losses suffered.

• In these instances, the individual must hire a medical malpractice attorney to facilitate their medical malpractice case. The individual must demonstrate to the local court system that the misdiagnosis directly lead to a loss in the form of finances, physical pain, or emotional distress.

New York courts specializing in the state’s 4,000 medical malpractice cases filed annually have begun expanding following the success of a Bronx judge in expediting the settlement process.

The approach, which has shown to save money by reducing court backlogs, has been extended to the other boroughs, through the implementation of training and educational programs. 

Starting December 1st, New York Chief Administrative Judge, Ann Pfau, will become the coordinating judge of the court system’s medical malpractice segment. The program is using a $3 million federal grant to train more judges in expediting the process. 

Bronx Justice Douglas McKeon, who has focused on malpractice cases for over 15 years, said he helped settle over 1,000 malpractice suits in his career. The efficacy in settling such cases is attributed to the city’s Health and Hospitals Corporation—an entity which runs 11 public hospitals and uses its own claims and law department to settle cases in a streamlined fashion. 

Courpration deputy counsel Suzzane Blundi stated that the entity revamped their commitment to patient safety, developing programs to manage claims, improve care and decrease payouts. The effort also investigates malpractice claims early on to help expedite settlements. 

On November 5, 2012, the National Institutes of Health announced that patients who receive stem cells from their own bone marrow three to seven days after a heart attack do not show greater heart function within six months.

The medical trial that looked into the treatment was called the Transplantation in Myocardial Infarction Evaluation (TIME).  The trial had similar results to a previous study performed by TIME.  The study looked into the effects of autologous stem cells, which are produced in bone marrow.  

Sonia Karlatos, Ph.D., the deputy director of NHLBI’s Division of Cardiovascular Sciences, stated: “Heart stem cell therapy research is still in its infancy, and results from early trials have varied greatly due to differences in the numbers of stem cells injected, the delivery methods used, and the compositions of the study populations.”  With the results from both of the TIME studies, Karlatos mentioned, “This standard will inform the next steps in research on the use of stem cells to repair damaged hearts.”

Researchers with TIME enrolled 120 volunteers between July 2008 and February 2011.  The average age of the participants was 57, and 87.5 percent of the participants were male.  All of the volunteers had moderate or severe blockage of the left ventricles and has received stents after heart attacks.  The volunteers were assigned to four groups:

•    group 1: injection of stem cells three days after heart attack
•    group 2: injection of placebo three days after heart attack
•    group 3: injection of stem cells seven days after heart attack
•    group 4: injection of placebo seven days after heart attack

The participants that received stem cells were injected with 150 million stem cells 8 hours after the cells were taken from the marrow.  

Even though the results were unsuccessful, CCTRN member Jay Travese, M.D., stated: “With this baseline now set, we can start to adjust some of the components of the protocol to grow and administer stem cells to find cases where the procedure may improve function.”

Source: National Institutes of Health
 

Researchers are re-examining breast cancer treatment protocols after several recent studies have indicated that breast cancer may be overdiagnosed and overtreated in the United States.  One study, released last week in the New England Journal of Medicine, indicated that as many as 1.3 million women in the United States have been misdiagnosed with breast cancer in the last 30 years when their tumors were in fact benign.

This overdiagnosis rate is due to false positives in breast cancer testing, which sometimes cause doctors to begin full breast cancer treatment, including surgeries, chemotherapy, and radiation therapy, for women whose tumors would never develop into cancer.

A second study, released a few days later, followed up with women who had selected to undergo preemptive double mastectomies to prevent breast cancer from recurring.  Many of these women were under the impression at the time of their double mastectomy that they would be very likely to get new breast tumors if they did not have both breasts removed, even if cancer was present in just one breast.

The findings in the study show that in these cases, double mastectomies lead to significantly longer recovery times and more complications, including infections.  However, according to study authors, the chance that the women in the study would have actually experienced a recurrence of tumors in the breasts was less than 30 percent.

The study concludes that while women whose family history or genetic factors make them particularly susceptible to breast cancer may want to have preemptive double mastectomies, women without these factors may not want to.

Double mastectomy patients have a large amount of skin and tissue loss, and the study's results indicate that women report it may take up to two years to fully recover.  90 percent of women having the surgery indicated that preventing tumor recurrence was their main priority, even though the majority would not have suffered from a recurrence regardless of whether they had chosen lumpectomy, single mastectomy, or double mastectomy. 

For women without genetic factors like BRCA1 or BRCA2, researchers say that women who have early-stage breast cancer may be better served by getting a lumpectomy.  This outpatient surgery has significantly fewer long-term side effects and will usually result in cancer-free status for women without BRCA1 or BRCA2 genetic mutations.

Clinical guidelines for breast cancer patients have already been rapidly changing in the United States since 2010.  Recommendations for mammograms to be done once every two years for most women without risk factors like a family history of breast cancer have been met with skepticism by some patient care advocates and physicians.

Sources: nih.gov, nejm.org