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MEDICAL MALPRACTICE
What is medical malpractice?
Medical malpractice is negligence committed by a
professional health care provider-a doctor,
nurse, dentist, technician, hospital, or
hospital worker-whose performance of duties
deviates from a standard of practice of those
with similar training and experience, resulting
in harm to a patient or patients. Most medical
malpractice cases are based on the concept of
negligence-that is, the patient was harmed
because the health care provider failed to meet
the required standards of skill and care, in
accordance with generally accepted standards.
The prescribed standard of medical care may vary
from state to state. Because Health care
providers cannot guarantee the results of
medical treatment, a patient's malpractice claim
is not valid just because his or her treatment
was not successful. Instances of malpractice
might include cutting off the oxygen supply
during surgery, misdiagnosing an injury because
routine tests and procedures were not followed,
or prescribing an illegal drug or one not
approved for the patient's condition. Each state
has a law, known as the statute of limitations,
which gives you a certain amount of time in
which you can file a claim. The purpose of the
statute is to ensure that a claim is made while
information relevant to the case is still
available. If you think that you are the victim
of medical malpractice, you should consult with
Mark Jordan Siegel & Associates as soon as
possible.
Misdiagnosis
Medical malpractice is essentially the failure
of a medical provider (including doctors,
pharmacists, radiologists, laboratory
technicians and doctors) to use reasonable care
in treating a patient. The prescribed standard
care that these medical providers owe their
patients varies in different jurisdictions.
However, the general rule is that they owe their
patients the standard of care generally accepted
by the medical profession with regard to the
same or similar circumstances. Medical
malpractice may include the failure of a medical
provider to properly perform their duties
including the diagnosis of your condition.
Misdiagnosis may include the failure to run
certain diagnostic tests or failure to diagnose
a condition in a timely manner. Such negligence
could result in serious injury to you. If you
have been injured because of misdiagnosis, you
may have a claim against the medical providers
who treated you. Statutes of limitation bar the
filing of claims after a certain period of time
has passed following the negligent act. These
laws vary state to state. For more information
on misdiagnosis, consult Mark Jordan Siegel &
Associates as soon as possible.
Pharmacist Malpractice
Pharmacist malpractice falls into the same
category as medical malpractice, in the respect
that if pharmacists and pharmacy technicians
fail to treat the patient with a reasonable
degree of skill and care, they are guilty of
medical malpractice just the same as a doctor,
nurse or other health care provider. If you
receive the wrong medication for your condition
or wrong combination of medications and suffer
damage as a result, you may have a claim either
against the doctor who prescribed the medication
or the pharmacist who filled the prescription.
Statutes of limitation bar legal action that
does not begin within a certain amount of time
after the negligent act. It is important to
consult with Mark Jordan Siegel & Associates as
soon as possible if you believe that you have
suffered damage as the result of a wrong
prescription.
Anesthesia Negligence
Injury may occur when anesthesia is improperly
given or not given in a timely manner to a
patient. If the failure of the anesthesiologist
is the cause of injury or death to a patient,
damages may be recoverable under the laws of
medical malpractice. Most doctors and hospitals
carry malpractice insurance and some states even
require that they contribute to a state
patient's compensation fund. Statutes of
limitation govern the filing of malpractice
claims and prevent filing once a certain amount
of time has passed after the malpractice. It is
important to consult with an attorney
knowledgeable in medical malpractice so that you
may learn your rights if you think you have been
injured as a result of anesthesia negligence.
For more information on medical malpractice,
contact Mark Jordan Siegel & Associates as soon
as possible.
OB-GYN Malpractice
OB or obstetrics malpractice may include failure
of the obstetrician to properly perform his or
her duties including failure to perform the
proper laboratory tests, including diagnosing RH
negative patients, a blood test or amniocentesis
which would diagnosis possible defects in the
fetus, all of which could cause injury or death
to both the mother and the fetus. OB-GYN medical
malpractice may include the failure of a
gynecologist to properly perform his or her
duties. These include IUD's-improper insertion
and monitoring of IUD's may cause pregnancy
complications or fertility problems;
DISEASE-failure to diagnose a gynecological
disease such as ovarian, cervical and breast
cancer, endometriosis, pelvic inflammatory
disease and many other diseases, may cause
pregnancy complications or fertility problems.
Both can be very serious and often become life
threatening. If you have been injured because of
improper medical care, you may have a claim
against the obstetrician/gynecologist who
treated you. However, statutes of limitation bar
the filing of claims after a certain period of
time following the negligent act. Consultation
Mark Jordan Siegel & Associates as soon as
possible to help determine the value of your
claim.
Birth Defects or Injuries
Most births and deliveries are handled
appropriately by medical care professionals.
However, medical negligence can occur during
pregnancy. Sometimes physicians may not diagnose
or properly treat various conditions that arise
during pregnancy. One such condition is known as
placenta previa. This occurs if the placenta,
which nourishes the fetus during pregnancy,
attaches to the inside of the womb in such a
fashion that prohibits the baby from being
delivered properly. If it is not diagnosed,
significant blood loss can occur. Such bleeding
can cause damage to the fetus, or even death. It
can also cause the mother to lose a dangerous
amount of blood. Birth injuries can also occur
if the delivery process is allowed to go on for
too long a period of time despite signs and
symptoms. In these cases, a cesarean section
delivery may be required. If a cesarean section
delivery is delayed, the child may be injured
from lack of oxygen. Injury can occur if
newborns are deprived of oxygen before, during,
or after birth. The emotional and financial cost
to a child who has been cared for or delivered
by doctors who have committed negligence can be
catastrophic. If you or your child has been
injured during pregnancy, labor, or delivery, or
if you have lost a child for an unknown reason,
medical negligence may have played a role.
Various states have specific statutes governing
malpractice claims. Many states provide for peer
review by a panel of doctors before the claim
can be reviewed by the court. Certain notice and
time requirements may apply to your claim. If
you believe that you or your baby has suffered
injury due to negligence, consult Mark Jordan
Siegel & Associates as soon as possible.
Nursing Home Injuries and Negligence
Injuries suffered by residents of nursing homes
may be recoverable under applicable state laws
for medical malpractice. When health care
providers fail to provide treatment with a
reasonable degree of care, they may be liable
for any resulting damages. Health care providers
include the professionals and staff of nursing
homes. Because nursing home residents require
special care and attention, it is all the more
important that the nurses and staff of the
nursing home provide proper care to the
residents. If the nurses and other staff of a
nursing home abuse or neglect a patient, payment
for damages, known as recovery, may be sought by
the victim under the law of medical malpractice.
If you or someone you know reside in a nursing
home and have been injured as a result of
improper care, consultation with an attorney
knowledgeable about medical malpractice law
could help you determine if you have a valid
claim. For more information on nursing home
injuries, contact Mark Jordan Siegel &
Associates as soon as possible.
Nuclear Medicine (CAT Scans and MRIs)
CAT (computer axial tomography) Scans and MRIs
(magnetic resonance imaging) save thousands of
lives each year by detecting problems in their
earliest stages and in cases of emergency where
the diagnosis could mean life or death to a
patient. Such would be to scans to detect
internal bleeding injuries, spinal cord and
brain injuries. In this instance the danger
comes from failure to read the scans
appropriately thereby causing an illness or
injury to progress unheeded. But of course, with
all malpractice cases, any claim will depend
upon the standard of care that could be
reasonably expected. Contact Mark Jordan Siegel
& Associates as soon as possible for more
information or to help answer any questions you
may have.
Time Limitations for Filing a Claim
Every state has certain time limits governing
how long you have to file a personal injury case
after an injury or accident occurs. These time
limits include wrongful death and medical
malpractice cases. The law refers to these time
limits as statutes of limitation. The amount of
time available to file a claim depends on the
state in which you live, and in some cases, the
type of case being filed. Most cases must be
brought within three years after the date of
injury or one year after the injured party
discovers the injury, whichever occurs first.
Actions by a minor shall be commenced within
three years from the date of the injury or a
child under the full age of six years shall be
commenced within three years or prior to his
eighth birthday whichever provides a longer
period. Because delay can jeopardize your claim,
you should Mark Jordan Siegel & Associates as
soon as possible to review your claim as soon as
possible.
How is a medical malpractice case proved?
To establish a prima facie (on the face of it)
case of medical malpractice, the claimant must
present expert medical and non-medical (i.e.
financial expert) testimony verifying the claims
of negligence and request for economic damages,
unless the negligence can be inferred from the
facts.
How are medical malpractice cases analyzed?
The basic elements involved in medical
malpractice, as in common negligence, are
establishment of a standard of care, proving a
breach of that standard of care, legal
causation, and damages.
Generally, standard of care is defined as how a
reasonable, careful or prudent person would
behave in similar circumstances. In general, all
people have a duty to avoid creating
foreseeable, unreasonable risks of harm to
others.
Breach of that standard of care occurs when
someone deviates from that standard of care and
creates a foreseeable, unreasonable, risk of
harm. Causation and damages are often
intertwined and can be difficult to separate. A
legal cause of action for negligence usually
exists when it is determined that the breach of
the standard of care proximately caused damages,
usually physical or emotional in nature to the
victim.
These same issues, standard of care, breach of
the standard of care, causation and damage also
apply in a case involving medical malpractice.
However, the elements of a negligence cause of
action are tailored to the medical or health
care setting. Therefore, in determining whether
medical malpractice exists, the questions
become: 1) how would a reasonable, careful and
prudent doctor, hospital or other health care
provider behave in the same or similar
circumstances; 2) did the doctor, hospital or
other health care provider breach that standard
of care in this specific situation; 3) was the
unreasonable, careless or inappropriate behavior
on the part of the doctor, hospital or other
health care provider the proximate cause of 4)
injury or damages to the patient or client?
To prevail in a medical malpractice case, all of
the above elements must be proven. The failure
to establish even a single element will prevent
the successful outcome of a medical malpractice
suit.
What does statute of limitations mean?
The legislature of each state has determined and
placed into the state's laws the maximum time
after the commission of a civil wrong that a
lawsuit may be brought. In general, a medical
malpractice case must be filed with the court,
no later than two to four years after the
commission of the malpractice. Regardless of how
strong the malpractice claim may be, if the suit
is not initiated with the statute, then the suit
cannot be brought. The statute of limitation in
Texas for personal injury and wrongful death
cases is generally two years from the date of
the incident.
For example: In January of 2003, John went into
the hospital to have surgery done on his
stomach. During the surgery, the doctor
negligently left a rubber strap inside John's
stomach. The rubber strap resulted in a stomach
infection that required intensive medical
attention and prolonged hospitalization. If the
statutes of limitations for medical malpractice
suits are three years from the time of the
malpractice, then John must file suit with the
court no later than January of 2005. If John
decides to file suit in January of 2006, then
his suit will be barred from being brought due
to the statute of limitations. The statute of
limitation in Texas for personal injury and
wrongful death cases is generally two years from
the date of the incident.
What is Vicarious Liability?
When a person is held responsible for the tort
of another even though the person being held
responsible may not have done anything wrong.
This is often the case with employers who are
held vicariously liable for the damages caused
by their employees, such as the event of
hospitals and physicians. One can make the
assumption that a physician is an employee of
the hospital without making an inquiry as to
whether or not the physician is actually an
employee of the hospital. Therefore, the
hospital could be held accountable for any of
the physician's actions, without having done
anything wrong.
How do I begin a medical malpractice lawsuit?
If you think that you have a valid medical
malpractice lawsuit, it is wise to seek out an
attorney who specializes in medical malpractice.
Medical malpractice is an extremely complicated
are of law that raises many complex and
intellectually difficult legal and medical
issues. Due to the heavy reliance upon medical
experts, the cost involved in bringing a
successful medical malpractice suit is very
high. Most attorneys who specialize in medical
malpractice will provide a free initial
consultation to determine whether the case is
worthy of further investigation. Most
malpractice specialists have a number of
experienced experts who can determine not only
whether the case is viable, but also how
difficult the case will be to try before a jury.
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