Our attorneys treat clients like we would our own family. We understand how important it is to have a compassionate bedside manner.We take the time to listen to you, answer your questions and ensure you understand what to expect in your medical malpractice claim. Just as we would for a family member, we commit to having a partner in our firm oversee each case, rather than handing off claims to a “case manager.” Our attorneys are always available to personally speak with you about the progress on your case.
Patients choose not to pursue valid medical-malpractice claims for numerous reasons: Some are concerned that other doctors will learn of their cases and refuse to treat them. Some fear—incorrectly—that it will lead to an increase in the cost of their medical care. And others forgo valid claims due to the perceived personal and financial costs associated with litigation.
The ancient Romans also had a legal foundation for medical malpractice law. Their first written laws, on the XII Tables, included the concepts of delicts, iniuria, and damnum iniuria datum. Delicts were types of wrongful conduct that involved penalties. Inuria and damnum iniuria datum were two types of delict. Inuria referred to personal injuries, and damnum iniuria datum referred to injury of property, which could include slaves. Inuria only included injuries that were intentionally caused. A person could be compensated for pain of mind or body as well as monetary expenses resulting from the injury. Damnum iniuria datum also included harm caused by negligent actions, but only mandated compensation for economic losses caused by harm to property. For example, if someone’s slave required medical attention as the result of another person’s negligent actions, they could demand payment through damnum iniuria datum. Eventually, this law was expanded to apply to free men in addition to slaves (O’Connel and Carpenter 1983).
Whether a doctor is a hospital employee depends on the nature of his or her relationship with the facility. Though some doctors are hospital employees, most doctors are not. Non-employee doctors are usually classified as "independent contractors" in the eyes of the law, which means that the hospital cannot be held responsible for the doctor's medical malpractice, even if the malpractice happened at the facility, and the doctor is officially affiliated with the facility.
Again – so what? Do you really want to be going to a doctor that injured you and caused you pain and suffering? There are much better options out there. You found this doctor. You’ll find another one. There are numerous resources available to help you find a new, more competent physician. A simple Google search of “find doctor New York” will yield a multitude of websites designed to do just that. If you have health insurance, contact your insurance company. They can usually provide you with a list of doctors in your area that are covered by your plan. Also, don’t under-estimate the value of your friends and family as a helpful resource regardless of whether or not you have insurance. Talk to them to find out what doctors with whom they entrust their health. In no time at all, you will be sure to find the right doctor for you.
The hospital may be found liable for negligence if it did not ensure that hospital staff had the required education, ongoing training or licensure. Additionally, it may be liable for not properly checking the backgrounds of other individuals who are not direct employees, such as surgeons or attending physicians, who administer care to patients. If a patient’s condition worsened because he or she had to wait longer because there was not adequate staff, the hospital may be found to be negligent.
So, the lawyer sues the doctor. The doctor being sued has malpractice insurance (most states won’t allow you to practice without it). So the insurance company pays for a lawyer to defend the doctor, as well as an expert witness to evaluate the case and attest that there was no malpractice. Notice that the patient’s lawyer still hasn’t spent any money. The doctor’s insurance company has spent a lot of money on expert witnesses and lawyers.
This answer is offered for informational purposes only. It is not offered as, and does not constitute, legal advice. Laws vary widely from state to state. You should rely only on the advice given to you during a personal consultation by a local attorney who is thoroughly familiar with state laws and the area of practice in which your concern lies. In the event that you have follow up questions, please post them directly on this site. This does not create an attorney-client relationship and the attorney does not read unsolicited emails. Thank You.
When lawsuits are brought against federal officials, they must be brought against them in their "individual" capacity not their official capacity. The theory appears to be that when federal officials perpetrate constitutional torts, they do so ultra vires and lose the shield of sovereign immunity. Williamson v. U.S. Department of Agriculture, 815 F.2d. 369, ACLU Foundation v. Barr, 952 F.2d. 457, 293 U.S. App. DC 101, (CA DC 1991).
Congress has also waived sovereign immunity for patent infringement claims under 28 U.S.C. § 1498(a), but that statute balances this waiver with provisions that limit the remedies available to the patent holder. The government may not be enjoined from infringing a patent, and persons performing work for the government are immune both from liability and from injunction. Any recourse must be had only against the government in the United States Court of Federal Claims. In Advanced Software Design v. Federal Reserve Bank of St. Louis, the Federal Circuit expanded the interpretation of this protection to extend to private companies doing work not as contractors, but in which the government participates even indirectly.
Experience: All attorneys are not created equal. Many attorneys today work as general practice attorneys, meaning they handle all types of cases from criminal matters to civil suits. However, if you have experienced a case of medical negligence, it is important to have an attorney who specializes in medical malpractice. You do not want a lawyer whose first trial is going to be this case. Even attorneys who specialize in civil matters rarely go to court, as many of their cases settle without a trial. At The O’Keefe Firm, Stephen O’Keefe has had years of actual trial experience specializing in medical malpractice cases. Although your case may be resolved without stepping into the courtroom, you can be assured that Mr. O’Keefe has the trial experience necessary to fight for your rights in front of a jury.
Of course, these questions get even more murky when talking about the legal system of a foreign country. Some nations may not recognize rights to sue by foreigners. Others may bog down in administrative red tape far thicker than anything found in an American court. Some estimate cases for malpractice brought in foreign nations could take 20 years or more to resolve. Worse yet, some nations may try to transfer jurisdiction back to the United States and the US may refuse to accept it, creating a legal back and forth leaving the parties in limbo.
A personal example - I had a physician try to talk me in to ECT several years ago. I explained that I didn't want to do it, because I didn't want to accept the risks of permanent memory loss. He denied those risks at first. He told me it was cooked up by the scientologists and anti-psychiatry folks and assumed my resistance was due to having seen the movie One Flew Over a Cuckoos Nest (which I had not seen, by the way). I finally got him to concede it was a risk, a risk I wasn't willing to take. I don't care how small the risk is or if the physician thinks it's worth it. They better tell me the truth. He wasn't the one having the procedure and accepting those risks. I was. As long as I am legally competent, the decision is mine. I have real issues about trying to coerce someone into signing an informed consent document by lying. That's unethical. I continue to be glad I didn't do it. It's a very individual decision.
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.
Loss of wages is capped at three times the Average Weekly Earnings published by the Australian Bureau of Statistics. Most injured people are not caught by this provision as it requires a gross salary of more than $140,000.00. Claims for lost superannuation entitlements are only allowed at the compulsory employer contribution rate (currently 9% of your salary).
Medical doctors must go through an enormous amount of schooling and training before they are allowed to be physicians and practice medicine. But even so, they are still human – and sometimes things go wrong. When this happens, it is called “medical malpractice”. Medical malpractice occurs when a patient is harmed by a doctor (or medical paraprofessional) who fails to competently perform their duties. The rules about medical malpractice and what must be done to sue on those grounds are varied and, in some cases, very specific. From knowing when you must bring your lawsuit to knowing whether you must notify the doctor ahead of time and how to do it, the team of legal professionals at the Sodhi Law Group will guide you through the process. Here is a brief overview of types of malpractice followed by what requirements must be met for something to constitute medical malpractice.
The administration of anesthesia poses a high risk during a surgical procedure. This is the reason why anesthesiologists practice such a focused medicine. Anesthesia errors can lead to a brain injury or organ failures. Anesthesia errors can also lead to death via asphyxia or heart failure. In some cases, medication administered to a patient prior to a surgical procedure can affect the drugs used for anesthesia. An anesthesiologist must thoroughly examine the patient’s medical records before making a decision on the type or mixture of drugs to use to anesthetize the patient for surgery. A failure to do so can result in serious injury to the patient and this may be grounds for a negligence claim.
A doctor-patient relationship existed. You must show that you had a physician-patient relationship with the doctor you are suing -- this means you hired the doctor and the doctor agreed to be hired. For example, you can't sue a doctor you overheard giving advice at a cocktail party. If a doctor began seeing you and treating you, it is easy to prove a physician-patient relationship existed. Questions of whether or not the relationship exists most frequently arise where a consulting physician did not treat you directly.
Have you filed your Standard Form 95? Did you fill it out correctly? Often, we have veterans and service members or their families that call us after they have filed their own Form 95. Many times, we must file amended Form 95s to correct legal, medical, or other errors that are made. Some times, we must tell these individuals that we cannot help them due to a fatal error in filing their Form 95 that cannot be corrected under the law.
Doctor Mistake, Serious Injury – Despite significant harm to the patient, sometimes it is impossible to prove a case of medical malpractice against a physician. For example, an older patient with a heart condition may die after receiving the wrong medication. After an investigation, experts may determine that although the physician prescribed the wrong medication, the incorrectly prescribed drug had the intended effect on the patient. In this case, there is physician negligence (for prescribing the incorrect medication), but no causation (the mistake did not cause the harm to the patient).
Under Article III, Section 2 of the United States Constitution, the Supreme Court of the United States has original jurisdiction over cases between states. Congress, if it so chooses, may grant lower federal courts concurrent jurisdiction over cases between states. However, Congress has not yet chosen to do so. Thus, the United States Supreme Court currently has original and exclusive jurisdiction over cases between state governments.
Keep in mind, the standard of care differs from region to region and takes your doctor’s level of education and experience into account. As a result, a rural internist with a small private practice is not held to the same standard of care as a board-certified infectious disease specialist practicing in a cutting edge urban hospital. The well of knowledge and experience from which each doctor is drawing is vastly different.
Regarding Moviedoc's comment, "Treating a rape victim must you tell them you were raped by your brother when you were 10?"...This is probably a bit too much information. However, telling a rape victim that you (the treating therapist or Psychiatrist) are a survivor of rape is often very helpful! Rape victims often think that no one understands, and that they can not survive. Having someone right in front of them who has experienced the same thing and survived it, is therapeutic. It should never be confabulated though, either true, or not said.
“We comply, where applicable, with the SRA Code of Conduct 2011 published by the Solicitors Regulation Authority, and any solicitor [or registered European lawyer] to whom we may refer you is an independent professional from whom you will receive impartial and confidential advice. You are free to choose another solicitor [or registered European lawyer]"
As for the marital stress, how did it get to court? Let's say the couple asks the psychiatrist if she's been divorced. I say she must either say yes, or say I won't tell you. Her choice. It would not be OK for her to lie. At that point the couple can find someone else. No damages. No court. When you say "must be disclosed," do you mean the court would hold that the psychiatrist should volunteer the information? First you would need an expert to testify to that. Then there would have to be damages, and proximate cause. Seems like a real stretch.
Although Canada is often characterized as a country that has “socialized” medicine, its system differs considerably from countries in which physicians are essentially employed by the state or the entire medical profession is under unified state control. In Canada, most medical practitioners are in private practice just as they are in the United States. Most physicians have their own offices, set their own schedules, and see patients who have chosen to come to them on a regular basis or for a particular condition. Canadians are not assigned doctors by the government or an insurance plan. They do have choices.
The Lexington, Kentucky Veterans Affairs (VA) Medical Center was one of the first to introduce such a program. Non-economic benefits to medical professionals included the promotion of ethical, honest behavior, and benefits to patients and their loved ones included a truthful account of what occurred, an apology, and potentially an offer of compensation. The VA also benefited financially – it became the VA hospital with the lowest malpractice payouts. Also, their average length of cases decreased from 2-4 years to 2-4 months.
Doctors typically require patients to sign a consent form detailing the risks of any given treatment or procedure. But signing a form alone does not necessarily prove that the patient gave informed consent. The doctor must actually discuss the procedure and risks with the patient. And the patient must understand, to the extent possible, the risks he or she faces.
That is one of the main reasons the legal system exists! To compensate people who been injured by their doctors’ mistakes! If your doctor has made a medical mistake, he may well have committed what is known in the legal community as negligence. In order to prove negligence, your attorney will have to show that (a) your doctor owed you a duty of care, (b) your doctor breached that duty of care, (c) your doctor’s breach caused you injury, and (d) you did in fact suffer an injury.
The majority of the American public supports reforms to the malpractice system. However, surveys show that the majority of the American public also vastly underestimate the extent of medical errors. Recent research has shown that while both health consumers and health producers are concerned about some of the adverse consequences of healthcare litigation, health consumers perceive that increased healthcare litigation can reduce the incentives for negligence on the part of healthcare providers.
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. 
There are any number of scenarios under which a physician can be negligent. Keep in mind that in the examples above -- and in every other case -- it is incumbent upon you to prove that your physician breached his duty to practice according to the standard of care, and that breach caused you harm. See What You Need to Prove to learn about the key legal pieces you and your attorney would need to put together.
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.