Examples of doctor negligence involve patients' complaints not being taken seriously enough, illnesses being incorrectly diagnosed, GPs refusing to carry out blood tests, incorrect or inappropriate medication being administered, incorrect doses of medication being prescribed, referrals to specialist consultants not being made in time or at all and follow up appointments/treatments not been carried out quickly enough . They can also include serious illnesses (such as cancer) being misdiagnosed as something less serious, broken or fractured bones going undiagnosed due to lack of referral for x-ray, failing to follow-up on a patient’s complaints and concerns, failing to correctly identify an illness or injury and treating an injury or illness in a manner which leads to complications and/or further injury or illness.
County and municipal officials, when sued in their official capacity, can only be sued for prospective relief under Federal law. Under state law, however, the Court in Pennhurst noted that even without immunity, suits against municipal officials relate to an institution run and funded by the state, and any relief against county or municipal officials that has some significant effect on the state treasury must be considered a suit against the state, and barred under the doctrine of sovereign immunity.
However, an attorney may be able to help you file a law suit against the negligent physician. When seeking your legal expert, the single most important factor is the attorney’s reputation. If you hire an attorney that is notorious for settling claims for less than they’re worth, you are less likely to receive the money you deserve. For more information on attorneys and the legal processes involved in medical malpractice law suits, please read our article Medical Malpractice and the Legal Process
Medical malpractice claims don’t settle easily out of court. Doctors are usually outraged at being sued. Some believe they can do no wrong. In any event, they don’t want to admit any wrongdoing, and to them, settling is just that, an admission that they did wrong. Therefore, more than with any other type of case, your lawyer must be prepared to try your case. Yet statistically, medical malpractice claims are among the most difficult claims to win at trial. Most of them are lost. Your best chance at settling, or if you can’t settle, winning at trial, is with an experienced medical malpractice trial attorney whose reputation might induce a favorable settlement or, that failing, whose trial skills and medical knowledge will tip the scales in your favor at trial. The medical malpractice team at Michaels & Smolak is skilled and experienced in such claims, so contact us for a free consultation now.
An award for pain and suffering is not obtainable unless your injuries reach at least 15% of a most extreme case. There is, however, no set way of measuring what 15% of a most extreme case looks like so every injured person must be individually assessed by the Judge and a percentage decided. The maximum award for pain and suffering is about $612,500.00 and is indexed each year to keep pace with inflation.
The 2001 Supreme Court decision of Board of Trustees of the University of Alabama v. Garrett seems to nullify this; however, numerous appellate court cases, such as Doe v. Nebraska in the 8th Circuit and Thomas v. University of Houston of the 5th Circuit have held that, as long as the state entity receives federal funding, then the sovereign immunity for discrimination cases is not abrogated, but voluntarily waived. Since the receiving of the federal funds was optional, then the waiver of sovereign immunity was optional. If a state entity wanted its sovereign immunity back, all they have to do in these circuits is stop receiving federal funding.
Regardless of the type of medical test performed, if the results are not communicated in a timely and appropriate manner and the patient subsequently suffers harm, it may form the basis of a medical malpractice lawsuit. Harm, however, must be suffered, as a patient who suffers no injury after a failed communication will probably have no basis for a lawsuit.
An injury was caused by the negligence - For a medical malpractice claim to be valid, it is not sufficient that a health care professional simply violated the standard of care. The patient must also prove he or she sustained an injury that would not have occurred in the absence of negligence. An unfavorable outcome by itself is not malpractice. The patient must prove that the negligence caused the injury. If there is an injury without negligence or negligence that did not cause an injury, there is no case.
In the vast majority of cases, the Doctor who takes on your care will do so in a highly professional manner, but there may be occasions when their standards fall short of acceptable. If it can be shown your Doctor failed in their duty of care, in a manner tantamount to negligence, and that you suffered some form of loss, damage, or pain as a result, you may have cause to pursue a claim for medical negligence.
Still, in a few cases, it is possible to say that the doctor or other medical professional acted so poorly that their behavior was actually criminal. The most common instances are those in which doctors or other medical professionals issue prescriptions to patients in dosages that they know, or should know, could be dangerous. An example of such a prosecution was the doctor who prescribed pain medications to famed pop singer, Michael Jackson. Other examples of criminal misconduct by doctors include surgeons attempting procedures while impaired by drugs or alcohol, or so-called “pill mills” that prescribe medications in volumes that could only be used for illegal distribution.
Medical malpractice lawyers generally offer free initial consultations. Most rely on contingency fees, meaning that the patient never pays the lawyer. If the lawyer wins the case, the law firm takes a portion (usually about 1/3) of the award. If the lawyer loses the case, the lawyer usually is not paid, though the client may be on the hook for a few small costs.
Although the medical school adage of “treat the patient and not the test” has value, it’s also important for health-care providers to carefully assess the information provided by the tests that they order. I’ve witnessed many instances in which highly abnormal test results were either interpreted incorrectly or disregarded by physicians—sometimes with fatal consequences.
Another motivating factor: A quick, honest “apology” might prevent a future claim, or provide an opportunity for a settlement without the need for litigation. Insurance companies typically want to settle with an injured person directly if they can, and this allows them to do so before the full extent of injuries are known, as well as preventing the injured person from hiring an attorney who could increase the settlement value of the claim through their representation.
Suing the Government under the FTCA is different than suing a private company or individual. There are a number of hoops that you have to jump through before you can even file the lawsuit. There are also certain limitations in lawsuits against the Government that you don’t have in lawsuits against private parties. While you are entitled to a trial under the FTCA, it is a “bench trial,” meaning the judge renders the decision and not a jury. Fortunately for the victims in the above-referenced malpractice case, the judge recognized the serious and permanent nature of the child’s injuries and the extraordinary expenses that would be required to provide for the child’s future medical and life care needs.
If a plaintiff can demonstrate that the government's action was done in bad faith, the plaintiff can receive damages despite sovereign immunity. Typically if a party can demonstrate that the government intentionally acted wrongly with the sole purpose of causing damages, that party can recover for injury or economic losses. For example, if access lanes to a major bridge are closed for repair and the closure results in severe traffic congestion, the action was in good faith and the state could not be sued. However, if, as in the Fort Lee lane closure scandal, the lanes were closed in retaliation against a mayor who declined to support a politician's campaign, with the explicit purpose of causing traffic jams, such lawsuits could proceed.
People go to see the doctor when ill or after suffering a serious injury. When you make an appointment to see your doctor, you trust that the doctor will help to improve your condition or injury – not make it worse. Doctors and other healthcare providers hold people’s lives in their hands. Consequently, when providers make serious medical mistakes, they can and should be held responsible for their negligence.
sometimes referred to the States’ immunity from suit as "Eleventh Amendment immunity[,]" [that] phrase is [a] convenient shorthand but something of a misnomer, [because] the sovereign immunity of the States neither derives from nor is limited by the terms of the Eleventh Amendment. Rather, as the Constitution's structure, and its history, and the authoritative interpretations by this Court make clear, the States’ immunity from suit is a fundamental aspect of the sovereignty which the States enjoyed before the ratification of the Constitution, and which they retain today (either literally or by virtue of their admission into the Union upon an equal footing with the other States) except as altered by the plan of the Convention or certain constitutional Amendments.
The injured patient must show that the physician acted negligently in rendering care, and that such negligence resulted in injury. To do so, four legal elements must be proven: (1) a professional duty owed to the patient; (2) breach of such duty; (3) injury caused by the breach; and (4) resulting damages. This includes doing nothing when they should have done something. This may be considered an act of omission or a negligence.
Unfortunately, the answer is only maybe, and it may take a long time. American patients that opt to leave the United States to have procedures done overseas probably do not realize that they may be foregoing the legal protection of the American court system. This is part of the reason why procedures performed overseas are so much cheaper: other nations do not have the stringent legal and administrative protections required of American doctors. This could leave a patient bearing most of the brunt of any legal risks associated with such a procedure because it can be very difficult to successfully sue foreign doctors in the US or to bring an action as a foreign citizen overseas.
Most medical procedures or treatments involve some risk. It is the doctor's responsibility to give the patient information about a particular treatment or procedure so the patient can decide whether to undergo the treatment, procedure, or test. This process of providing essential information to the patient and getting the patient's agreement to a certain medical procedure or treatment is called informed consent.
If someone is an employee of a hospital, the hospital is typically responsible (liable) if that employee hurts a patient by acting incompetently. In other words, if the employee is negligent (is not reasonably cautious when treating or dealing with a patient), the hospital will usually be on the hook for any resulting injuries to the patient. (Keep in mind that not every mistake or unfortunate event that happens in a hospital rises to the level of negligence. To learn more about what constitutes medical malpractice, read Nolo's article Medical Malpractice Basics. )
^ William M. Sage, M.D., Margaret Thompson, Cynthia Gorman, Melissa King. [ The Jury's Still Out: A Critical Look at Malpractice Reform], Center for American Progress, June 12, 2008. From the study, "There is no nationwide crisis [...] Malpractice is wrongly blamed for rising health care costs in the United States...Experts have found little correlation between malpractice claim increases and malpractice premium increases. "
In order to prove medical negligence, one must show that their doctor deviated from the accepted level of medical care that could have been reasonably expected from a physician. Deviations that may support a medical malpractice claim include: surgical errors; medication errors; infections from hospitals; delayed diagnosis of cancer; cerebral palsy; paralysis; pulmonary embolus; spinal cord injury; strokes, heart attacks; brain injury; breast cancer; birth injury; tools, sponges, towels or objects left behind in your body after surgery; surgery on the wrong site; treatment without your informed consent; being given the wrong medication or the wrong dose; being treated with unsterile equipment; or a misdiagnosis or failure to diagnose a serious condition.
Seek out an appropriate specialist who can treat your specific injury. Give the doctor your full medical history, including the circumstances surrounding the recent medical error. Remember that medical records are the most important factors when determining a doctor’s error. Make sure you give the new doctor enough correct and thorough information to ensure that the charts accurately record your state of health following the medical error. To make sure your doctor fully understands your present condition and that these facts are properly recorded, be sure to share the “complete picture” by explaining what your health was like before, during, and after the accident, as well as your current condition. Make sure your new doctor has access to any medical records that may impact his/her diagnosis and plan for treatment.
In United States law, the federal government as well as state and tribal governments generally enjoy sovereign immunity, also known as governmental immunity, from lawsuits. Local governments in most jurisdictions enjoy immunity from some forms of suit, particularly in tort. The Foreign Sovereign Immunities Act provides foreign governments, including state-owned companies, with a related form of immunity—state immunity—that shields them from lawsuits except in relation to certain actions relating to commercial activity in the United States. The principle of sovereign immunity in US law was inherited from the English common law legal maxim rex non potest peccare, meaning "the king can do no wrong." In some situations, sovereign immunity may be waived by law.
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Writing for the court in Alden, Justice Anthony Kennedy argued that in view of this, and given the limited nature of congressional power delegated by the original unamended Constitution, the court could not "conclude that the specific Article I powers delegated to Congress necessarily include, by virtue of the Necessary and Proper Clause or otherwise, the incidental authority to subject the States to private suits as a means of achieving objectives otherwise within the scope of the enumerated powers."
The negligence resulted in significant damages - Legal malpractice lawsuits are expensive to litigate. For a case to be viable, the plaintiff must show significant damages that resulted from the negligence. If the damages are small, the cost of pursuing the case might be greater than the eventual recovery. To be worth pursuing, the plaintiff must show that the outcome resulted in losses far in excess of the amount of legal fees and expenses necessary to bring the action.
Once a doctor initiates treatment of a patient, the doctor must not only terminate care at a proper time, but also in a proper manner. If a doctor transfers a patient to the care of a second doctor, the second doctor may not be familiar with crucial details of a patient's care. So, the first doctor has an ongoing obligation to provide the second doctor with proper instructions and all relevant records (treatment notes, test results, etc.). Failure to do so could rise to the level of medical malpractice.
Subsequent cases have held the Bivens theory of recovery applies to other claims under the various rights enumerated in the Constitution. (For decisions concerning redress of Fifth Amendment claims with Bivens actions, See Young v. Pierce, (DC Tex. 544 F.Supp. 1010) and Eight Amendment claims Mackey v. Indiana Hospital, (DC PA 562 F.Supp. 1251. 
In many jurisdictions, a medical malpractice lawsuit is initiated officially by the filing and service of a summons and complaint. The parties subsequently engage in discovery," a process through which documents such as medical records are exchanged, and depositions are taken by parties involved in the lawsuit. A deposition involves the taking of statements made under oath about the case. Certain conversations are not discoverable due to issues of privilege, a legal protection against discovery, but most conversations between the parties and witnesses are discoverable.
Most people are able to get to at least second base with a failure to warn claim. Fewer are able to prove that the doctor simply did not talk to them about that particular risk, although there are cases where a patient’s word has been accepted over a doctor’s insistence that a warning was given. Getting copies of the doctor’s medical notes can help with this element.
Medical malpractice litigation began to increase in the 1960s. Tort lawyers were able to break the traditional "conspiracy of silence" that discouraged physicians from testifying about the negligence of colleagues or serving as expert witnesses. By the 1970s physicians alleged that malpractice claims were interfering with their medical practices, with insurance companies either refusing to write malpractice policies for them or charging inflated premiums.
Liability insurance eventually took its seat as a crucial player in medical malpractice suits. The Massachusetts Medical Insurance Society, founded in 1908, was among the first to provide and make mention of insurance against “unjust suits for alleged malpractice” in 1919. On one hand, the nascent brand of insurance offered physicians peace of mind; settlements and damages would be covered. On the other hand, it served to assure plaintiffs that every meritorious claim should be brought forward, as that claim would almost certainly see payment.
Failure to warn a patient of known risks. Doctors have a duty to warn patients of known risks of a procedure or course of treatment -- this is known as the duty of informed consent. If a patient, once properly informed of possible risks, would have elected not to go through with the procedure, the doctor may be liable for medical malpractice if the patient is injured by the procedure (in a way that the doctor should have warned could happen). (To learn more, read Nolo's article Medical Malpractice: Informed Consent.)
Your attorney can help you determine whether you were the victim of medical malpractice. Attorneys conduct independent medical research with the assistance of physicians and nurses to determine whether medical negligence occurred. A poor medical outcome alone does not automatically mean medical malpractice was committed. In order to receive compensation, you must prove that the defendant failed to provide reasonable care. Please feel free to call usanytime for free a consultation to help you get your questions answered.
Dr. Zaheer A. Shah, MD, JD (Attorney and Physician): The author of this answer is an Attorney-at-Law, licensed to practice law only in the state of Arizona and he is a board certified, Ivy League trained, practicing physician. Nothing posted on this forum by the author constitutes legal advice. Additionally, any medical opinions rendered on this forum in response to a particular question do not constitute medical advice. Opinions expressed herein are solely those of the author, and are neither privileged nor confidential. While an effort is made to offer accurate information, there is no guarantee as to accuracy.