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Medical Malpractice

Monday, June 12, 2017

Leading Reasons for Medical Malpractice

People who need medical care put their trust in doctors, hospitals and other healthcare providers. When that trust is violated and a patient is injured because of a medical mistake or incompetence, there may be grounds for a medical malpractice lawsuit. This is a brief overview of leading reasons for medical malpractice.

Misdiagnosis or Delayed Diagnosis

Many medical practice claims arise from misdiagnosis or delayed diagnosis. A patient whose injury or illness is not accurately or quickly diagnosed may not receive the necessary treatment and suffer serious harm or death. Having a valid claim requires demonstrating that a reasonably skilled doctor would not have made the same mistake under the same circumstances.

Medication Errors

Medication errors occur when the wrong drug or dosage is prescribed or the medication is not properly administered. These errors often occur when hospitalized patients are given the wrong drugs or equipment such an IV pump malfunctions and overdoses a patient. In most cases, prescription errors cause patients to receive to little or too much of a medication, often with catastrophic consequences.

Surgical Errors

A variety of mistakes can occur during surgical procedures. In some cases, a negligent surgeon may operate on the wrong bodypart, fail to close a bleeding vein or artery, puncture a vital organ, or leave sponges or surgical instruments inside a patient's body. In addition, the nursing staff may be negligent during post-operative care by failing to notice complications.

Anesthesia Errors

Mistakes by anesthesiologists are especially dangerous and even a small error can lead to a permanent injury or death. These mistakes have a variety of causes, such as defective equipment or patients not being properly intubated. In many cases, injuries arise when anesthesiologists fail to adequately review a patient's medical history and administer too much anesthesia.

In the end, the fact that a doctor, hospital, or other medical professional makes a mistake does not mean they were negligent. In order to have grounds for a medical malpractice lawsuit, it is necessary to demonstrate that medical professional failed to provide the appropriate level of care.


Monday, December 26, 2016

10 Things to Bring to Your First Meeting With Your Attorney

Hiring an attorney is not something most people do every day, so being a little bit unsure of how things are going to go is perfectly normal. To help ease some of the stress and make the process go more smoothly, take time to compile and bring the following list of items with you to your first meeting.

  1. A list of all your contact information. Your lawyer is going to need to know your full legal name and any other names you go by, your address, phone number(s), and email address.

  2. The names and contact information of other people that might get involved with the case - people on the other side, people on your side, witnesses, doctors, police, insurance agents, etc.  If a case has already been filed against you, the name(s) and contact information of the lawyer(s) representing the other side will also be needed.

  3. A typed up or written down account of the circumstances surrounding the situation that is causing you to seek legal help. Try to make your summary of events as detailed as possible. If writing or typing isn’t one of your strengths, try creating an audio recording.

  4. A timeline of events. The best way to do this is to buy a calendar, write all the important events on it, and bring it to the meeting with you.

  5. Any materials (including documents, digital files and photos) you have that relate to your legal matter. If possible, put the documents in an order that makes sense when paired with the summary of events and timeline you put together above.

  6. A list of information (particularly documents) you wish you had or thought you had but can’t seem to find now.

  7. The truth. You don’t have to swear to tell the truth, the whole truth, and nothing but the truth unless you are taking the witness stand in the courtroom, but lying to your attorney will not help your case. 

  8. Bring a good idea of what you hope to get out of the case. Think about what winning looks like to you. It is difficult for your attorney to figure out how best to help you if they don’t know what you want. 

  9. An open mind paired with a good sense of what your gut is telling you. Your lawyer may suggest a solution that you would never have imagined, or let you know that you don’t have a case. Listen to what they tell you, but don’t be afraid to share your thoughts on their suggestions.

  10. A list of any questions you have. The meeting will be far more productive if you leave without nagging questions or lingering doubts.

Monday, December 12, 2016

Alternative Dispute Resolution Might Be the Right Way to Bring a Case to a Close

Civil lawsuits arise because of a dispute between parties.  They’re unable or unwilling to resolve the dispute, so they get lawyers involved and cases are filed.  The litigation process is a way to resolve those issues with the help of a judge or jury.  But that’s not the only way to resolve a dispute.  

 
There are costs and benefits to litigation.  The obvious benefit is that a party may get the resolution it wants.  In a commercial context, pursuing litigation can also serve as a notice to others that the business does not hesitate to enforce its rights. But, the costs of litigation are many.  
  • Litigation often comes with a hefty price tag.  A party might not only be on the hook for its own costs and attorneys’ fees, but also a verdict against it and possibly the costs and attorneys’ fees for the opposing parties.
  • A case can literally take years.  If you win at trial, there could be an appeal.  Collecting on a money damages award will take time, if you can do it at all.  The time and energy a party spends on a legal case is time and energy not spent on other things, like family, making a living or running a business.  
  • Litigation can be emotionally draining.  The parties may have to relive over and over again, during depositions (when parties are questioned under oath) and at trial, in front of total strangers, very stressful and painful situations.
  • Litigation results in a loss of privacy.  Court proceedings and verdicts are generally matters of public record.   Someone off the street can go to the court clerk’s office, open up a file and read about very personal issues (such as family disputes, medical conditions and finances).  
One way to seek the outcome a party wants, without the heavy costs and risks of litigation, is alternative dispute resolution.  The parties can agree to mediation or arbitration, which may bring litigation to a close.
 
Mediation is a process by which a mediator works with the parties and attorneys to create a resolution acceptable to all parties.  Arbitration is a more formal process by which evidence is presented and an arbitrator (or panel of arbitrators) decides who should prevail.  An arbitration decision may or may not be binding on the parties.  
 
A mediator will learn the circumstances leading to the case, the parties’ positions and what they’re willing to give and take to resolve the issue.  The mediator may meet separately with the parties, try to create common ground and possibly come up with creative ways to meet the parties’ needs.  A mediator may, or may not, try to guide the parties with his or her assessment of the strengths and weaknesses of the case and the likelihood of success or failure, if it proceeds.
 
The parties can control how much time and energy this will take, instead of being subject to a trial schedule.  Agreements can be kept confidential.  Money, time, energy and emotions not spent on litigation can be spent on other things.  
 
Alternative dispute resolution is a means to bring control and certainty to the legal process which is invaluable when you are recovering from a traumatic, stressful and painful event that led to the legal action in the first place.

Monday, October 17, 2016

Expert Witnesses Can Be the Key to a Lawsuit


In civil cases, plaintiffs have the burden of proving defendants are to blame for their injuries or economic losses by a preponderance of the evidence, which essentially means, that based on the evidence, the defendants were more likely than not responsible for the injuries.  That can be a lot more complicated than it sounds  Expert witnesses can be a critical key to success in winning over the jury and winning these complex matters.

 
Take the case of Margaret Wellinghorst.  In November 2007, she was walking her dog when she tripped on the edge of a trench that had been dug in the road.  She fell and injured her left hand.
Read more . . .


Monday, September 19, 2016

The Pros and Cons of Settling a Case

If you have been injured by the negligent actions of another, you may be entitled to compensation for your medical expenses, physical and emotional pain and suffering, permanent physical impairment or disfigurement, lost income, decreased earning capacity, property damage, or other economic losses. Deciding whether to settle a personal injury lawsuit without taking the case to trial is a major decision demanding the full consideration of many factors.

Some plaintiffs wish to settle the matter quickly, while others want to let a judge or jury determine whether damages should be awarded and how much. There are advantages and disadvantages to each option; only you can decide what is best for your specific situation but an attorney can help you put the pros and cons of each option into perspective.

The vast majority of personal injury lawsuits never see a courtroom, evidence that the benefits of early settlement are compelling to a great number of injury victims. Settling a case is often more advantageous to the injured party, rather than taking the case to trial.If you have received a settlement offer from the defendant or the defendant’s insurance company, you should review the offer with your attorney as soon as possible.

Settlement agreements have many advantages. Settling your case is much quicker than taking your case to trial, which can take up to a year – or more, depending on the jurisdiction and the complexity of the case. You can receive the money, or at least a portion of it, immediately so you can pay off your medical bills and repair property damage. Your attorneys’ fees and other legal costs are greatly reduced by avoiding protracted discovery and the trial itself. Additionally, the emotional benefits are undeniable. You have the peace of mind of knowing exactly how much money you will receive, and you can get emotional closure right away so you can move on. Finally, settlement agreements can remain confidential, whereas court proceedings are public records.

On the other hand, there are tradeoffs. In exchange for the benefits stated above, you will typically have to accept a smaller monetary award than you might get if the case goes before a judge or jury.

Taking your case to trial, letting the court decide the outcome, also has its advantages and disadvantages. If you go to trial and win, you may feel a sense of emotional satisfaction having prevailed in the lawsuit. And, as noted above, you may be awarded a much higher amount than what was offered in the settlement negotiations.

However, there is never any guarantee that you will win your case at trial, or that the amount awarded will be more than what you could have settled the case for. The value of any settlement offer or potential court verdict must be weighed against the increased costs of dragging the case out for many more months before a trial can take place. In considering your options, an experienced personal injury lawyer can provide you with a realistic assessment of whether a settlement offer is fair, and the likelihood of winning a greater award at trial.


Monday, September 5, 2016

Medical Malpractice

There are always certain elements that need to be demonstrated in order to bring a successful malpractice action. For example, the treating doctor must have had a legal obligation to provide this medical care to this particular patient and there must have been a "breach," that is, an intentional or unintentional infraction or violation of the law. A breach usually occurs when the doctor fails to follow the “standards of the profession.” 

Medical malpractice is a tort (civil wrong) that may fall under a “negligence” action.  Negligence by a medical professional typically occurs when he or she neglects to protect a patient “from a foreseeable risk of harm.”  In order for malpractice to be proved, the doctor’s breach must be the actual and immediate, or precipitating, cause of the patient's injury. In addition, there must be damages for a court to remedy.  All of the above elements must be present in order to bring a valid cause of action within the state’s statute of limitations. The patient's attorney has the burden of proving each element of the case. 

Typically, the doctor owes the patient a “duty of reasonable professional care” during the course of treatment. To prove this standard, an expert witness will likely be required to testify before the court.  Furthermore, to facilitate the discovery process, multiple documents may be requested for review, such as medical and billing records. Witnesses, the patient, and experts in the field may also be interrogated. Depositions may also be used to gather and analyze other pertinent facts. 

Monetary compensation for medical costs and pain and suffering are usually provided for in these cases, but punitive damages, designed to discourage similar behavior, are rarely awarded. The patient's attorney may be able to negotiate a settlement with the doctor in an attempt to avoid the risks of a jury trial.  Such a settlement is often in the best interest of the patient since litigating a medical malpractice action can be extremely expensive.  Any settlement negotiations may involve the doctor’s insurance representatives. 

In many cases, medical malpractice attorneys will take cases on a contingency basis, meaning they only get paid if the claim is settled. If a malpractice case is lost, it can still be appealed. Though medical malpractice cases are typically filed in state court, a medical malpractice attorney may advise that a particular suit be filed and litigated elsewhere.


Monday, January 25, 2016

Deciding Who to Sue: How Do I Know Who to Name as Defendants?

When you decide to start a lawsuit, it can be confusing to identify the responsible parties. Sometimes there are a lot of people involved in your injury; maybe you're suing a business, and you're not sure about its official name or who the owners are. Factual investigation is often a crucial part of starting a personal injury lawsuit.

You can select more than one defendant to sue if that person or company is somehow connected to the harm you suffered. There are "necessary" defendants -- people without whom a court will not be able to evaluate all the facts of your case or reach a conclusion. "Permissive" defendants are not essential to the case, but if your dispute with them involves the same facts and issues as your dispute with the necessary defendants, you can usually include them in your lawsuit.

You may also want to expand your lawsuit to parties not directly involved but still liable. For example, if you are suing someone who harmed you in the course of performing a job, his or her employer may be liable. If a poorly designed or malfunctioning product is involved, you may be able to sue the companies and individuals involved in the product's design, manufacture, distribution or sale.

Suing individual owners of corporations, or a corporate parent of a subsidiary, can be difficult. The corporate structure limits liability, but there are exceptions. A court will "pierce the corporate veil" when fraud is involved or when justice demands it.

Before filing your lawsuit, you need to consider all those who have a connection to your claim. An experienced personal injury attorney can help you evaluate the facts of your case and determine who to sue.


Monday, January 11, 2016

What is soft tissue damage and how is it treated?

Soft tissue damage refers to damage done to the muscles, ligaments, and tendons throughout the body.  Often referred to as sprains, strains, contusions and tendonitis, soft tissue damage is usually caused by a traumatic event such as a slip and fall or a traffic accident.  It can result in swelling, bruising, and loss of function.   Immediately after an injury, the area affected by soft tissue damage should be protected, rested from any strenuous activity, kept cool with ice to regulate swelling, compressed and elevated.  If pain continues after 72 hours, it is likely that the injury is more than a simple sprain or strain.  When the soft tissue is inflamed for a long period of time it could result in serious, long-term damage.

When soft tissue damage exists in the back and the spinal column is compressed, it may result in what is commonly referred to as a pinched nerve.  Each vertebrae is separated by a gel filled sac that acts as a cushion between the bones.  When the muscles surrounding and supporting the spine are inflamed, it pushes the bones together, squeezing the sac and causing it to bulge, called a bulging disc.  In more serious cases, the sac actually ruptures.  This is called a herniated disc.  Besides being incredibly painful, these conditions can result in weakness or numbness in the extremities, known as radiculopathy.

MRI can confirm the existence of a bulging or herniated disc.  Treatment varies depending on the severity of the case.  For some, physical therapy and chiropractic manipulation will be enough to heal the damaged area.  This is considered conservative treatment.  There is the possibility that an epidural injection to the affected area could help reduce inflammation and give the injury an opportunity to heal.  If nothing else is successful, spinal fusion or decompression may be an option to reduce pain. A doctor should be consulted before engaging in any sort of treatment.  


Monday, December 21, 2015

What is tort reform and what are some of the criticisms of it?

Tort reform is the name commonly given to a proposed solution to the rising healthcare costs in America.  Some people believe that medical malpractice lawsuits are the main reason why the United States has such high healthcare costs.  The argument is that because doctors are afraid of being sued, they have to conduct more tests than is reasonable.  Essentially, doctors complain that they are forced to be too thorough.  Also, it is believed that hospital bills are high because malpractice insurance premiums are high.  Therefore, by limiting the maximum amount that a Plaintiff could win in a lawsuit, malpractice insurance costs would be reduced, doctors would be free to practice as they see fit and prescribe fewer tests, and the savings would be passed on to the patients. 

This line of thought is not without criticism.  While doctors and insurance companies would surely benefit greatly from putting a cap on the amount of money damages awarded in medical malpractice awards, there is no cap on the amount of damage a doctor might do by making a mistake.  In the case of Colin Gourley, an OBGYN’s negligent prenatal care of Colin’s mother led to the boy being born with severe birth defects including physical, cognitive, and behavioral problems.  He was quickly diagnosed with cerebral palsy.  He will require round the clock care for his entire life.  A jury found that the hospital and the doctor should be responsible for these costs, and awarded the family $5,625,000.00 to cover the damages.  However, because of a law capping damages in such a case, their award was limited to $1.25 million, leaving a middle-income family with a bill of $4,000,000.00 that they had no means of paying.  This is only one case of many which demonstrates the real cost of putting a cap on damages.

The consequences of tort reform affect those who suffer the most as a result of medical mistakes.  Also, the amount of the cap is arbitrary and inherently unfair to those who were mistreated by the medical professionals in the first place.  The proponents of tort reform might better serve society by putting their efforts into lowering healthcare costs by coming up with a way to reduce medical error and inefficiencies. 


Monday, December 7, 2015

What are punitive damages?

Punitive damages are a special class of damages paid by a defendant in a lawsuit.  They are not designed to compensate the injured party for any damages suffered, but instead to punish the defendant for some egregious action and to discourage others from enaging in that specific behavior.  Punitive damages are reserved for special cases where a defendant’s behavior is extraordinarily bad. 

In order for a case to be considered for punitive damages, the defendant had to have acted willfully. For example, if a company decided to take a product to market, knowing that it had a dangerous defect, it could be held accountable for punitive damages.. It does not make sense to allow punitive damages in a case where only negligent behavior is alleged because, presumably, a negligent action was an accident and there is little need for deterrence.

When a court decides on a punitive damage award, it will consider how bad the conduct in question really was, as well as the wealth of the defendant.  After all, being forced to pay $10,000.00 is a much greater punishment for a person earning $50,000 a year than someone earning $50,000,000 a year.  Even though their purpose is not to compensate a plaintiff for injuries, usually punitive damages are paid to the plaintiff, leaving him or her in a much better position than he or she was in before a lawsuit was filed. 

The United States is one of the few countries in the world that permits punitive damages.  They are also common in China, Australia, and New Zealand.  In parts of the United Kingdom, they are available in very limited circumstances.  In Japan and most of Europe, it is nearly impossible to get a punitive damage award.


Monday, October 19, 2015

Should I Sue for My Injuries?

Whether you’ve been injured as result of a car accident, fall at the local market or a bite by a neighbor’s pit bull, you may be asking yourself, “Should I Sue?” Most people think they should, and that a sizable settlement payment will be forthcoming.


In our legal system, a negligent party is expected to pay for damages you incurred because of the accident or injury, such as medical costs, lost income, property damage, and pain and suffering. In certain cases, punitive damages may be awarded if a person’s conduct was malicious or intentional. Nevertheless, just because you have been injured does not necessarily mean that you should file a lawsuit, a decision which rests on multiple factors.

Such factors include the seriousness of your injury, the level of fault that rests with the negligent party, and your own liability for involvement in the accident or causing your own injury. One of the biggest considerations, however, is whether the wrongdoer has the financial means to pay any judgment that you may be awarded. If the defendant is insolvent, your judgment may prove to be worthless – but your attorney and other professionals involved in your case will expect to be paid.

Accordingly, insurance coverage is a significant consideration. Although the defendant may have few assets from which to collect a future judgment, there may be sufficient insurance coverage available to pay any eventual judgment. Note, however, that most insurance policies typically do not cover intentional torts.

An experienced personal injury attorney can help you review the various risks and benefits of pursuing a lawsuit, in light of your specific circumstances. Before deciding whether to undertake the time and expense of litigation, you must carefully weigh your involvement in any comparative or contributory negligence, what evidence will be necessary to prove your case and the amount of damages you should be awarded, and the availability of assets or insurance to secure payment of a future judgment.
 


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