Medical malpractice is the most common legal claim lodges against doctors. A medical malpractice claim arises when a doctor failed to treat the patient in conformance with the accepted medical standard of care and the patient suffered some injury as a result. The medical standard of care is the type of care that another physician in a similar community practicing in the same type of medicine would have provided within the same circumstances.
At the same time, the doctor or the doctor’s insurer must complete a similar investigation in order to determine whether medical negligence actually occurred, and if so, whether the negligence resulted in certain injuries and damages to the claimant. The doctor must also obtain an opinion in writing from another doctor in order to support his or her defense.
Jason Konvicka: Medical malpractice occurs when a health-care provider deviates from the recognized “standard of care” in the treatment of a patient. The “standard of care” is defined as what a reasonably prudent medical provider would or would not have done under the same or similar circumstances. In essence, it boils down to whether the provider was negligent.
There is a limited amount of time within which a patient can make a medical malpractice claim against a medical professional. While the actual statutes of limitations for these claims vary by state, you will always have at least a year after the injury has taken place. The list below contains the statute of limitations for each state. Note that in many states, the statute contains considerations regarding when a patient discovered or realized medical negligence occurred. This is referred to as the discovery rule.
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Doctor Liability, Damages – In this category of cases the patient can prove that the doctor was negligent, and that negligence was the cause of the patient’s injury. These are the situations most likely to end favorably for the injured party. Attorneys are more likely to take cases they believe will be easy to prove. When attorneys can easily prove physician liability, costs are lower and the client will receive more of the damage award. In other words, less money will be deducted from the patient’s award.
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.
Bivens has had more impact on the accountability of federal government officials than perhaps any other decision in the history of American law. The central issue in Bivens was whether the Fourth Amendment of the Federal constitution created an implied right of action. This was decided affirmatively in a claim for damages by individuals whose home was searched unreasonably (and hence unconstitutionally) by federal narcotic agents. Jurisdiction was not claimed under title 42 U.S. Code § 1983, which as of this writing, has not yet been held to extend liability to federal officials in most circumstances. Instead the enabling legislation was found under Title 28 U.S. Code § 1331 which grants general jurisdiction on the basis of a federal question.
As fear over “spurious claims” grew, and the lucrative nature of malpractice payouts became clear, legislation began to account for the concept of shared fault in medical malpractice claims. Many states arrived at the conclusion that a medical professional was not always exclusively responsible for the injury incurred. The doctrines of contributory and comparative fault allow the jury to assess the claim and assign a correct amount of blame to plaintiff as well as the defendant. Allowing fault to be shared promotes responsibility for both parties.
When a claimant uses this exception, the state cannot be included in the suit; instead, the name of the individual defendant is listed. The claimant cannot seek damages from the state, because the claimant cannot list the state as a party. The claimant can seek prospective, or future, relief by asking the court to direct the future behavior of the official.
"Many cases of psychiatric malpractice are never reported because the victims are already emotionally unstable." With that sentence alone, the author condemns anyone with a valid complaint who has visited a psychiatrist even one time for simple, passing, stress-related difficulties, to risking even more by challenging perhaps the most elusive, powerful professional in existence.
Doctors' groups, patients, and insurance companies have criticized medical malpractice litigation as expensive, adversarial, unpredictable, and inefficient. They claim that the cost of medical malpractice litigation in the United States has steadily increased at almost 12 percent annually since 1975. More recent research from the same source has found that tort costs as a percentage of GDP dropped between 2001 and 2009, and are now at their lowest level since 1984. Jury Verdict Research, a database of plaintiff and defense verdicts, says awards in medical liability cases increased 43 percent in 1999, from $700,000 to $1,000,000. However, more recent research from the U.S. Department of Justice has found that median medical malpractice awards in states range from $109,000 to $195,000.
The injury resulted in significant damages - Medical malpractice lawsuits are extremely expensive to litigate, frequently requiring testimony of numerous medical experts and countless hours of deposition testimony. For a case to be viable, the patient must show that significant damages resulted from an injury received due to the medical negligence. If the damages are small, the cost of pursuing the case might be greater than the eventual recovery. To pursue a medical malpractice claim, the patient must show that the injury resulted in disability, loss of income, unusual pain, suffering and hardship, or significant past and future medical bills.
The federal government and nearly every state have passed tort claims acts allowing them to be sued for the negligence, but not intentional wrongs, 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.
Medical malpractice claims are incredibly complex cases, and the laws governing them vary from state to state. Even the most obvious malpractice claims will still require meeting numerous administrative, or claim filing, prerequisites, such as providing the doctor or hospital with notice, or even getting another doctor’s opinion. Some states even have shorter statute of limitations for malpractice claims.
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.