Articles Posted in Medical Malpractice

In a number of our posts, we have highlighted the notion that some physicians believe that they are not mistake prone. Essentially that there is a culture that doctors should not confront their colleagues about mistakes made in treating (or diagnosing) patients. This rigidity about making (or being accountable) for mistakes is particularly troubling, especially when the specter of human error is simply a part of life.

But what happens if human error is not the cause of an adverse medical outcome? What if such an outcome is the result of faulty equipment?

This is a question that may come up in the midst of a medical malpractice investigation (much less a lawsuit). In order for a plaintiff to prevail in a malpractice action, he or she must show that but for a doctor’s negligence, the injuries or ailments the plaintiff now suffers from would not have occurred.

As medical malpractice attorneys, we hear a number of stories about doctors who make mistakes. Some of them are quite tragic, as they are errors that should never be made. Others are fairly common, as they are a reflection of disorganization or poor judgment.

Nevertheless, good physicians; or rather, good medical teams are not easy to come by. As such, it may be difficult to really know when you should move on and find new medical providers. With that, we dedicate this post to highlighting clues that should tell you when it is time to move on. 

Your doctor doesn’t seem to care – Indeed, a doctor’s bedside manner is only one component of what makes him or her a great physician, but your doctor has to care about your ailments. If your doctor appears less than concerned about your issues, or dismisses your claims, it may be time to find a new doctor.

We have written many posts on the different types of damages an injured patient may seek in a medical malpractice case. However, we have not touched upon the different elements in such cases that lead to successful claims. Before a medical malpractice suit may be commenced, a physician (or hospital staff member) must owe a duty to a patient.

What exactly is a duty? Essentially a doctor must carry an affirmative responsibility to care for a patient before his actions (and competency) may be judged in a medical malpractice case. This comes by a patient either being assigned to doctor or by a patient seeking out a physician for a particular procedure or an examination.

 Keep in mind that this is different from a doctor who sees a stranger in distress in a restaurant. In these situations, a doctor is under no legal duty to act (even though it would be a good and kind gesture to do so). Conversely, once a doctor decides to examine or advise a patient (whether assigned or sought out) a duty attaches.

It may difficult for a patient to bring a medical malpractice claim against a hospital or a physician. There are many elements that do not always favor an ailing patient, including the lack of money available to properly investigate the claim, the ambivalence in the justice system because of how long it may take, and the constant pain a malpractice victim may be in.

But even in the midst of bringing a malpractice claim, a plaintiff (or at least a plaintiff’s lawyer) must prepare for the various defenses a hospital, nurse or physician may bring. This post will identify a few of them. 

Disputes over standards – In order to prevail on a medical malpractice claim, a plaintiff must show that a physician’s or nurse’s actions fell below the standards expected of medical professionals in similar situations. As such, a defendant may argue that his or her actions fell squarely within the professional standards expected.

In a prior post we highlighted the failed legislative initiative in California to overturn the state’s cap on non-economic damages in medical malpractice cases. The current law, which was enacted by the legislature in 1975, limits the amount of money plaintiffs in med mal cases may be awarded by a jury to $250,000. In the nearly 40 years since the law was passed, this amount has not been adjusted…even for inflation.

California’s law has likely been the impetus for similar laws by legislatures around the country, especially as jury awards for pain and suffering continued to rise in the 1980’s and 1990’s. In fact, it is arguable that states that did not have non-economic damages caps were more likely to lose physicians who were not able to pay the skyrocketing insurance costs ostensibly driven by the fear of large medical malpractice awards. 

However, as more information comes forth indicating that tort reform does not actually lower medical costs, some states are re-thinking their caps on liability. For example, the Florida Supreme Court recently found that damages caps are unconstitutional. The court explained that such caps served no other purpose than to “arbitrarily punish the most grievously injured or their surviving family members.”

Today’s modern mega cruise ships are engineering marvels. They include elaborate boulevards that resemble actual city blocks and shopping malls. They have multiple signature restaurants, waterslides, ice skating rinks and even rock climbing walls. They also have state-of-the-art medical facilities to handle people who become sick or injured in the course of having fun on their cruise.

However, if a patient is sickened or injured because of a doctor’s negligence, the patient was usually out of luck. Medical malpractice cases against cruise lines were commonly dead on arrival because of maritime laws that generally insulated cruise ship medical staffs from liability in U.S. courts. 

Nevertheless, a recent ruling by the U.S. Court of Appeals for the Eleventh Circuit may change this going forward. Essentially, the court rejected the application of the so-called “Barbetta rule” which immunizes a shipowner from liability under the legal theory of respondeat superior when a ship’s employees are negligent in rendering medical care to passengers. Because of this, a wrongful death action based on medical malpractice alleged against a ship’s doctor on a Royal Caribbean cruise ship was deemed worthy of going forward. It was initially dismissed by the trial for failure to state a claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure.

In our prior post, we talked about how caps on non-economic damages could be harmful to medical malpractice plaintiffs, in that they may not compensate injuries that involve a great deal of pain and suffering or long-term emotional injuries. With these scenarios possible when medical negligence mars procedures involving reproductive organs or victims of sexual assault, could it be that some malpractice victims are treated differently than others?

According to a study about women, children and elderly medical malpractice victims, it appears that their injuries are largely compensated through non-economic damages, which are capped at $250,000 in a number of states. 

Essentially, damages caps create an unfair value system where certain members of society may not recover what they should be entitled to based on the nature of their injury. Instead, damages may be determined on a person’s earning capacity. Since women tend to be awarded more than men when it comes to non-economic damages, such caps could be seen as discriminatory and work towards an unequal system of access to justice.

In a prior post, we highlighted the breaches in procedure and improper actions taken by physicians that led to Joan Rivers’ death. Essentially, there were critical errors that if they were abated, could have saved Rivers’ life.

While the Rivers’ case appears to be a straightforward case of negligence, many other medical malpractice cases are not so clear cut. This led us to think about potential things that patients could do to help them avoid medical malpractice cases. This post will identify a few.

Speak up – Doctors are trained to diagnose medical conditions and make recommendations on how to treat them. However, you know your body much more than a physician can. So if you feel that something is wrong but doctors are telling you that everything is alright, speak up for yourself and not simply rely on one opinion. After all, it is your body and only you have to deal with the consequences if something goes wrong.

As a patient, you may not be as concerned with certifications as a physician might be; but perhaps you should. Indeed, doctors may believe that certifications are an important measure for keeping abreast of the latest recommendations and best practices for a particular field. When doctors are into continuing education, the patient stands to benefit as well.

Take Arizona Cardinals quarterback Carson Palmer. He went down with an injury during last Sunday’s game. It was discovered that he tore his ACL, unfortunately on a play where crumpled to the field untouched. Palmer is likely to trust his surgery and subsequent rehab to someone who is certified by the National Academy of Sports Medicine (NASM) and/or the American Orthopaedic Society for Sports Medicine (AOSSM). 

Certification by these groups inherently means that they are up to date on the latest techniques for surgery and post-operative care. Doctors who continue to hone their craft by obtaining these certifications are less likely to fail to use reasonable care during a procedure or during the rehab period. For instance, these physicians can advise on the best times after a catastrophic injury has occurred to have surgery. So while you may not have a professional football career to earn a living, medical negligence can occur regardless of your income.

Indeed, physicians have difficult jobs where there may be times where they must make split second decisions that can have critical implications on patients’ lives. This is why they go through extensive training in order to properly diagnose illnesses and injuries and to make care recommendations accordingly. Despite the difficult nature of their profession, doctors must use reasonable care when performing their duties.

However, in situations where doctors are acting as Good Samaritans in emergency situations, should they be held to the same standards? More importantly, should a patient injured by a doctor in this position be able to initiate a malpractice suit?

This is an important question given that doctors may have an ethical duty to assist members of the public in the event of an emergency. Nevertheless, Good Samaritans are protected in a number of situations under New York law, including where: