The federal government and nearly every state have passed tort claims acts allowing them to be sued for the negligence, but not intentional wrongs[citation needed], of government employees. The common-law tort doctrine of respondeat superior makes employers generally responsible for the torts of their employees. In the absence of this waiver of sovereign immunity, injured parties would generally have been left without an effective remedy. See Brandon v. Holt.[26]
The South Dakota surgeon had been called to vouch for the expertise of one of his partners whose patient had suffered a stroke and permanent disability after an operation. The problem was Aanning had, in his own mind, questioned his colleague’s skill. His partner’s patients had suffered injuries related to his procedures. But Aanning understood why his partner’s attorney had called him as a witness: Doctors don’t squeal on doctors.
Prominent physicians Nathan Smith and R.E. Griffith of Yale and the University of Pennsylvania respectively held the belief that medical malpractice lawsuits were beneficial and necessary, serving as a tool of accountability in a profession that was poorly regulated. The American Medical Association (AMA) was founded in 1847 with the goal of promoting standardization of the profession, as well as elevating the standing of physicians in society. At the time, the vast majority of suits stemmed from orthopedic malpractice and deformations that resulted from botched amputations. As physicians sought to raise their own standards, higher patient expectations ensued. With the arrival of liability insurance for physicians, medical malpractice suits shot up in the States in the late 19th century.
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.
You may have a medical malpractice claim in Virginia if your health care provider’s negligence caused your injury or harm A bad outcome alone isn’t proof of medical negligence, but it may be a sign that you should contact an experienced medical malpractice attorney to investigate your situation and evaluate your legal rights. We do not recommend taking on this type of case by yourself. Virginia’s medical negligence laws favor defendant health care providers.
It is worth remembering that the authors of the Bill Of Rights were heavily influenced by Anglo-Saxon legal theorists such as Sir William Blackstone, who declared that there were "three absolute rights ... the right of personal security, the right of personal liberty and the right of personal property. [1] Blackstone believed the principal aim of society is to protect individuals in the enjoyment of these absolute rights which were vested in them by the immutable laws of nature. [2]
In most cases, doctors are not considered the direct employee of the hospital, but rather independent contractors. However, in some situations, doctors are employees. Doctors are more likely to be found to be employees of the hospital if the hospital controls the doctor’s working hours, vacation time and the fee schedule for the doctor’s services. In a few exceptions, a hospital may be found to be liable for a non-employee doctor’s services.
A steady uptick in medical malpractice cases can be attributed, in part at least, to the decline of religious fatalism. It was a pervasive belief that misfortune and injury were acts of God, meant to be construed as punishment for moral and religious transgressions. Overturning this belief may be considered a far-off ripple effect of The Enlightenment, a historical ‘moment' at which prominent European thinkers began to reject the notion that everything was determined by the will of an omnipotent God. As philosophers and scientists alike began to promulgate the idea that willful human action was the true determinant of fortune and misfortune, a fringe effect was the rise of medical malpractice litigation, a century or so later. As people began to accept that injury and misfortune could be attributed to human error and not God's will, they began to assert an entitlement to recompense if they suffered as a result of human error. This was a brick in the foundation of medical malpractice litigation.
Despite this, the perception of “lawsuits gone wild” exists. As a result, many states have imposed substantial limits on damage awards in medical-malpractice claims. These award limits typically have the greatest impact on patients who are most gravely hurt—those with catastrophic injuries and a lifetime of future medical needs. And patients who are denied justice in the courts must rely on health insurance and, in many instances, such public programs as Medicare or Medicaid to pay their future medical bills—leaving the cost of medical malpractice to the public instead of the responsible party.

^ C & L Enters., Inc. v. Citizen Band, Potawatomi Indian Tribe of Okla., 532 U.S. 411 (2001); Kiowa Tribe of Okla. v. Mfg. Techs., Inc., 523 U.S. 751 (1998); Okla. Tax Comm'n v. Citizen Band, Potawatomi Indian Tribe of Okla., 498 U.S. 505 (1991); Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978); Puyallup Tribe, Inc. v. Dep't of Game of State of Wash., 433 U.S. 165 (1977); United States v. U.S. Fidelity & Guar. Co., 309 U.S. 506 (1940); Turner v. United States, 248 U.S. 354 (1919). See also Oneida Indian Nation of N.Y. v. Madison Cnty., 605 F.3d 149, 156 (2d Cir. 2010), cert. granted, 131 S. Ct. 459, vacated and remanded, 131 S. Ct. 704 (2011) (per curiam).
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.

Although the laws of medical malpractice differ significantly between nations, as a broad general rule liability follows when a health care practitioner does not show a fair, reasonable and competent degree of skill when providing medical care to a patient.[2] If a practitioner holds himself out as a specialist a higher degree of skill is required.[2] Jurisdictions have also been increasingly receptive to claims based on informed consent, raised by patients who allege that they were not adequately informed of the risks of medical procedures before agreeing to treatment.[2]

^ Faulty Data and False Conclusions: The Myth of Skyrocketing Medical Malpractice Verdicts, Lewis L. Laska, J.D., Ph.D. and Katherine Forrest, M.D., M.P.H. Commonweal Institute, October 6, 2004. From the report, "The premise that medical malpractice awards have been rising dramatically in the United States in recent years, driving up the cost of healthcare and forcing physicians out of practice, is not supported by relevant evidence."
It isn’t surprising that you like your doctor. Otherwise, why else would you keep going back to him year after year? But so what? Liking your doctor shouldn’t keep you from suing him if he has caused you emotional and/or physical harm. Think about it – the legal system is around for a reason. It’s there to provide people with a way to receive compensation from someone who has harmed.
This means that if a psychiatrist properly diagnoses and treats a condition, gives the correct medication and monitors it properly, the patient can still go after the doctor if she experiences a 1 in 10,000 complication simply by saying, "If I had known X about my doctor I would have chosen to be treated by someone else." Remember there is nothing in the appellate opinion to limit the range of potential background questions. We are focussing on his responses to direct questions by the patient, but the opinion wasn't really designed to delineate what duties (if any) are owed when patients ask personal questions. The appellate opinion just opens the door, and I'm raising the 'what if' questions.
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The lady in risk management was very nice and very sympathetic and apologized profusely for everyone who had behaved badly. She forced the doctor to send in a prescription for the correct quantity of the med he had lied about and claimed was an opiod. I checked with my mail-in pharmacy and with two local pharmacists where I live and they all said that my med is definitely not an opiod and that a 90 day quantity is done all the time. So I had to pay almost $80.00 for the 30 day script the incompetent doctor sent in, and then when he was forced to send in another script that was correct, I will have to pay $120.00. Had he done what he was supposed to do from the start, I would not have had to pay the unnecessary expense of the $80.00. So, I know my experience was not nearly as harrowing as many of the ones I have read, but I have to agree with all of you. There really are some incredibly bad, incompetent, and I'd go so far as to say evil doctors out there. Who knows? Maybe they are crazy too, and they are taking it out on their patients and they just haven't been caught yet. All I know is that I've had incompetent doctors before, but I have NEVER had one who was just so nasty, so unprofessional, and who made me feel like I just needed to take a shower after I'd been in his presence. People like that should have their licenses revoked. They do more harm than good and they have no business being in this line of work.
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.
Dealing with a doctor whom you believe has been negligent can be an angering and upsetting situation. Doctors can be negligent in many ways, including prescribing medications to which you are allergic, giving you incorrect advice or even botching a surgical procedure. When you believe a doctor has been negligent, there are several ways to report the situation, whether you are seeking a legal remedy or you simply want to prevent someone else from going through the same thing.

Many litigants facing civil lawsuits in which the United States is the plaintiff have erroneously sought to counterclaim against the U.S. The United States, however, to this date has not waived sovereign immunity for claims for damages, (See United States v. Northside Realty Associates, 324 F.Supp. 287, 291 (N.D. GA 1971) (dismissing a counterclaim asserted against the Attorney General where plaintiff in the suit was the United States on the ground that although the suit was initiated by the Attorney General, the real party in interest was the United States).


To establish whether or not your doctor has been negligent they will have to be shown to have been in a position where they owed you/the patient a duty of care and that you or the patient suffered direct harm as a result of their negligent management of this care. The decisions the doctor made and the treatment they gave will be assessed. If it is found that they acted in a way in which other doctors would not have acted, and this resulted in a negative effect, you will have grounds to make a successful medical negligence claim.
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.)
Emotionally fragile patients. If a doctor knows that the patient is so distressed that he or she will refuse needed treatment, the doctor may not be required to get the patient's informed consent. For example, if a brain tumor is life threatening, but removal entails frightening risks like paralysis, it may be appropriate for the doctor to be vague in her description of the risks.
If you are considering medical tourism, discuss the possible risks with your American general practitioner and, if possible, a local attorney. If you have already undertaken to receive treatment from a foreign doctor, and have suffered an injury, you should discuss the particular details of your case with a qualified, experienced attorney. You will need to find an attorney that has experience not just with medical malpractice, but also with international legal disputes. Before undertaking any legal action against a foreign doctor, you should ask your attorney whether your claim will be worth the trouble of fighting an international legal battle. You may find that you do not have the same entitlements that you would when bringing a claim against an American doctor, and this might make a victory a hollow exercise and a waste of time and money.
@ Anon, since when do we not ask lawyers about their success rates?! I don't have much experience with the legal system, but to the best of my knowledge, most people research a lawyer before hiring them. I've never hired a lawyer, but if I needed legal representation, I'd certainly find out what kind of experience and success a lawyer had before asking them to represent me! (It may be somewhat less if it's a lawyer that takes the case on contingency, but then you at least have the guarantee that they're really motivated to win.)
Despite this, the perception of “lawsuits gone wild” exists. As a result, many states have imposed substantial limits on damage awards in medical-malpractice claims. These award limits typically have the greatest impact on patients who are most gravely hurt—those with catastrophic injuries and a lifetime of future medical needs. And patients who are denied justice in the courts must rely on health insurance and, in many instances, such public programs as Medicare or Medicaid to pay their future medical bills—leaving the cost of medical malpractice to the public instead of the responsible party.
However, a "consequence of [the] Court's recognition of pre-ratification sovereignty as the source of immunity from suit is that only States and arms of the State possess immunity from suits authorized by federal law." Northern Ins. Co. of N. Y. v. Chatham County (emphases added). Thus, cities and municipalities lack sovereign immunity, Jinks v. Richland County, and counties are not generally considered to have sovereign immunity, even when they "exercise a 'slice of state power.'" Lake Country Estates, Inc. v. Tahoe Regional Planning Agency.

That claim is supported by data collected by Diederich Healthcare, one of the nation’s largest medical malpractice insurers. The data shows that in 2016, more than $3.8 billion was paid out to plaintiffs for medical malpractice claims nationwide. When those payouts were broken down by the severity of patient injury, death, at 31 percent, was the most common reason for a medical malpractice claim. That was followed by significant permanent injury at 18 percent, and major permanent injury at 17 percent.
This is medical negligence. The 1) the standard of care requires a surgeon, the surgical team, and the hospital, to not leave surgical instruments inside of a patient 2) the doctor fell below the standard of care, 3) and it made the man sick for a year 4) which caused him pain and suffering, to miss work, and to incur unnecessary medical expenses both in dealing with the mystery illness after the first surgery and again for the second surgery to remove the gauze.
While both doctors in the above example should be able to diagnose the flu or pneumonia with relative ease, it would be more difficult to argue that the rural doctor was negligent for missing a diagnosis of some type of exotic disease usually only seen in people from foreign countries. On the other hand, the big city infectious disease expert would likely be negligent in not making the same diagnosis.
Damage: The physical and/or monetary costs to the plaintiff that resulted from negligent acts by the medical provider. An example of damage would be a physician assistant’s failure to diagnose the right medical condition which then caused the patient to become sicker, to spend more money on additional therapy, and to incur lost wages for missing work.
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).
Many states limit the amount a plaintiff can recover in a medical malpractice lawsuit. For example, subjective damages like “pain and suffering” might be capped at $250,000. In a state with that kind of cap, you wouldn’t be able to recover more than $250,000 plus any medical expenses, lost wages and other “concrete” damages caused by the malpractice.
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