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Medical Malpractice

Monday, March 2, 2015

Medical Malpractice, Standards of Care and Your Legal Rights

Despite efforts to mitigate their occurrence, medical errors by doctors, nurses and other healthcare providers result in a significant number of injuries and deaths every year.  It is important to note that not every treatment which results in the degradation of the patient's condition(s) or in failure to restore health constitutes medical error or malpractice.  Instead, malpractice occurs when there is professional negligence by healthcare providers or facilities. 


Professional negligence by act or omission by a health care provider occurs when the treatment provided falls below the accepted standard of practice in the medical community and causes injury or death to the patient. In order to determine whether there was malpractice, the key issue is whether physicians and caretakers followed accepted standards of care.

What are standards of care?
Though medical care is highly complex, there are a finite number of issues that afflict people with any regularity. Because of this, standards have emerged that the medical community has agreed should be followed in almost any given medical situation.

Therefore, if a patient arrives at a medical facility with one or several symptoms, the attending physician should perform a series of predetermined steps to diagnose and treat the patient. These rather inflexible, predetermined steps are standard; they are standards of care. Standards of care can vary by specific circumstances but most often involve questions and steps such as:  

  • Was an investigation conducted and did the doctor take steps that he or she would have been reasonably expected to take?
  • Was a diagnosis pursued?
  • Was treatment provided in a timely manner?
  • Was the patient informed of risks? This is known as informed consent.
  • Did the healthcare facility provide a healthcare professional who was qualified to provide to the care that was needed?
     

What Other Issues Can Arise Regarding Standards of Care?

Standards of care involve agreed-upon rules, but medical professionals can nonetheless disagree on what action should have been taken in relation to specific situations. Questions regarding the medical issue itself may affect standards of care, as well as the location of the facility in which the care was provided and the resources at the facility’s disposal. For instance, a small, rural clinic may operate on a different standard of care than a well-funded urban or university hospital. Most medical malpractice cases, therefore, rely on medical expert testimony for proof that malpractice occurred and that a deviation from standards of care was made. Only other physicians are qualified to testify regarding the competence of a doctor who may have committed medical malpractice, and only specific physicians are able to testify knowledgeably regarding the limitations and capabilities of a specific health care facility.

If you suspect that you have suffered injury at the hands of a doctor who did not follow the standard of care, contact a medical malpractice attorney who can provide effective counsel regarding the building and management of your case. 


Thursday, April 24, 2014

Wrong-Site Surgeries Increase in Number

Wrong-Site Surgeries Increase in Number

Imagine that you’re a patient going in for routine surgery.  Now imagine that you’re one of 40 U.S. patients a week who awakens from anesthesia– only to find that your surgeon has operated on the wrong site.  Say for example, your right leg instead of your left leg. What would you do? Sue your doctor? The hospital? A surprising report from The Joint Commission, which accredits and certifies healthcare organizations in the United States, finds that the problem of wrong-site surgery has worsened, not improved.  More and more medical patients are waking up to find that their doctors made an error in a common surgical procedure. 

According to Kaiser Health News, wrong-site surgeries continue to occur on a regular basis. This comes years after the president of The Joint Commission introduced mandatory rules aimed at preventing surgeons from performing procedures on the wrong site.  The study found that wrong-site surgery occurs an estimated 40 times a week in U.S. hospitals and clinics. However, according to the commission, which encouraged surgeons to submit cases of error, only 93 cases were reported in 2010.   

According to the commission, reporting of such incidents is voluntary and confidential.   This policy is in place to encourage doctors and hospitals to come forward .  Aside from the commission, the laws in about half the states, do not require reporting.   

Despite campaigns to encourage surgeons to participate in a timeout at the start of every surgery, where each surgical team takes a moment to verify the procedure to be performed, the article posits that the mistakes may be explained by the increased time pressures surgeons face. Because reporting is not required by many states, the number of estimated wrong-site surgeries could be a gross underestimation. 

Interestingly, a smaller percentage of wrong-site procedures are litigated in medical malpractice suits than one might think.  Settlements in these cases are substantially lower than those where the wrong-site patient seeks representation. 

According to a 2010 study, which reviewed 132 wrong-site cases, about one-third of procedures resulted in death or serious injury.   Despite these horrific outcomes, the average compensation to victims was approximately $80,000 in cases that resulted in a lawsuit and $47,000 in cases settled without legal action.  As incidents of wrong-site surgery continue to increase, patients and their advocates should continue to press for more accountability from their hospitals and their doctors. 


Wednesday, April 2, 2014

Defensive Medicine

Defensive Medicine: Many Doctors “Over-Treat” Patients Due to Fear of Medical Malpractice Claims

The skyrocketing cost of medical malpractice insurance premiums has changed the way many physicians practice medicine, prompting some to refuse certain patients with complex medical problems or to order unnecessary tests on other patients. Such “defensive medicine” can involve unwarranted lab tests or x-rays or even more invasive procedures to help ensure “certainty” regarding a diagnosis. Even more troubling for the most vulnerable patients, defensive medicine can result in a surgeon’s refusal to perform a complex operation on a sick patient for fear of a negative outcome and eventual malpractice lawsuit.

A recent study published in the Archives of Internal Medicine revealed that many patients receive “too much” medical care and treatment. The study found that 42 percent of American primary care physicians believe that patients receive more aggressive medical care than is necessary. The study also revealed that many doctors feel they must provide “excessive care” to patients, due in large part, to concerns about being the subject of medical malpractice claims.

The study involved 627 physicians, most of whom had practiced medicine for nearly 25 years. Of the doctors surveyed, just 6 percent expressed concern that patients were receiving too little care. Most doctors reason that they could risk medical malpractice lawsuits if they fail to take every conceivable measure to cure or prevent an illness. They admitted over-treating and over-testing, in order to attain clinical performance standards, despite the small amount of time they have to actually consult with each patient.

The vast majority of physicians surveyed – 83 percent – believe they could be sued if they opted not to order every test that is indicated for a particular situation. On the other hand, just over 1 in 5 doctors believe they could be sued for ordering an unnecessary test.

Nearly half of the survey respondents reported that nurse practitioners and physician assistants provided more aggressive treatment than primary care doctors, and 61 percent indicated that subspecialists also provide more aggressive treatment. Experts believe that defensive medicine could be mitigated if doctors more effectively communicated with their patients about their illness and the pros and cons of various tests.


Wednesday, February 26, 2014

Do You Have a Medical Malpractice Case?

Your Doctor Made a Mistake – But Do You Have a Medical Malpractice Case?

The term “medical malpractice,” sometimes called medical negligence, refers to a situation in which a health care provider fails to act in accordance with standards of accepted medical practice, causing injury or death to the patient. A physician, nurse or other health care professional is considered negligent if his or her conduct is below the “standard of care,” i.e. the degree of care and skill that the typical health care professional would provide to a patient seeking treatment for similar symptoms or under similar circumstances.

It’s not just doctors and nurses who can be sued for medical malpractice. Any licensed health care provider who is in a position of trust can be held accountable for diagnosis or treatment that causes injury or death. These can include lab technicians, radiology technicians, specialists who interpret your test results, ambulance companies and their employees, and facilities such as hospitals, nursing homes and pharmacies.

There are many types of mistakes which may be considered “medical malpractice,” depending on the overall circumstances of your injury or illness and the treatment you received. Common medical malpractice claims include:

  • Incorrect or missed diagnosis
  • Failure to conduct appropriate diagnostic tests
  • Failure to properly treat your medical condition
  • Failure to properly administer medications
  • Failure to properly perform a surgical procedure
  • Failure to manage a pregnancy or safely deliver a baby
  • Failure to warn you of the risks of treatment, which would enable you to give your fully informed consent to the treatment
  • Failure to anticipate a problem which should have been anticipated in accordance with the standard of care

Even if your medical treatment results in a negative outcome, the doctor’s or nurse’s conduct may not rise to the level of malpractice or negligence. Furthermore, even if the treatment you received clearly fell below the standard of care and is deemed “negligent,” you may run into difficulties bringing your claim due to the high cost of litigating a medical malpractice case. Because medical malpractice cases often hinge on the definition of the “standard of care” required for that particular situation, experts must be consulted and retained to prepare reports, give depositions and testify in court.

You should consult with an experienced medical malpractice attorney who can help you determine whether the health care provider’s negligence was truly the result of malpractice and whether your case is worth pursuing. Your attorney will review your medical records and will likely have to retain a medical expert who can review your records to evaluate the merits of your claim. Due to the significant expense involved in performing such reviews and obtaining assistance of experts for a medical malpractice claim, the vast majority of meritorious cases settle before the case goes to trial.
 


Friday, December 6, 2013

Defensive Medicine: Many Doctors “Over-Treat” Patients Due to Fear of Medical Malpractice Claims

The skyrocketing cost of medical malpractice insurance premiums has changed the way many physicians practice medicine, prompting some to refuse certain patients with complex medical problems or to order unnecessary tests on other patients. Such “defensive medicine” can involve unwarranted lab tests or x-rays or even more invasive procedures to help ensure “certainty” regarding a diagnosis. Even more troubling for the most vulnerable patients, defensive medicine can result in a surgeon’s refusal to perform a complex operation on a sick patient for fear of a negative outcome and eventual malpractice lawsuit.


Read more . . .


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