Medical Malpractice Law Questions

What exactly is medical malpractice?

Medical malpractice is an umbrella term that may apply to an array of neglect inflicted on a patient by healthcare professionals.

What are some common examples of medical malpractice?

Some of the more common examples occur when an ailment goes misdiagnosed or undiagnosed; when there is an unnecessary delay in treatment by a physician; when an illness is incorrectly prescribed; when an error occurs during surgery.

What are “damages” in a medical malpractice case?

In addition to being compensated for pain and suffering, the plaintiff may receive reimbursement for medical expenses paid as a result of the malpractice. The plaintiff is also entitled to be reimbursed for wage loss and lost earning capacity.

How long after a case of medical malpractice can I file a claim?

Two years from the date of the malpractice under Pennsylvania law. If you feel you’ve been the victim of medical malpractice, it is usually best not to wait long before speaking with a lawyer.

Yes, you can and should be present. After a lawsuit is filed, the normal course of the discovery process is to have the depositions of all parties and witnesses be taken. This includes the questioning of the defendant doctor in a medical malpractice suit. This is the opportunity for your attorney, when deposing the defendant doctor, to get the doctor’s version of the events leading up to your injury on the record. As a victim of malpractice, sitting in on a deposition of the defendant in any case can be an emotional experience. Nevertheless, it is your attorney’s role, not yours, to ask the questions of the defendant, or of any other witnesses. You can however discuss questions you feel are important with your attorney before the defendant doctor’s deposition, and you can always get a copy of the deposition transcript afterward. But your attorney will take the lead in the questioning.

How long should I continue to see my doctor after an accident?

As long as you have problems related to the personal injuries that you’ve sustained in your accident, it is advised that you continue to see your doctor. Frequently, injuries continue to bother people after a motor vehicle accident but the victim stops seeing his or her doctor: that is a mistake. As long as you, the victim, are having on going complaints related to the accident, you should be informing your doctor about those complaints. Go to the doctor and inform him or her of what’s going on, because, at the very least, your doctor is going to be making a record in his or her chart about your complaints, and you can present that list of complaints to the opposing insurance company. When the case goes to a juried trial, the jury will hear how long you went to see your doctor and what the complaints were over a period of time. It is crucial that, as long as you have complaints related to the injuries of the accident, that you continue to receive medical care.

Who pays my bills in a personal injury case?

In a typical motor vehicle accident case, your own insurance company pays your medical bills. In a fall down accident, furthermore, your health insurance coverage pays your medical bills. Clients frequently assume that the other person’s insurance company is responsible for paying all of their medical bills but that is not correct under the law in Pennsylvania. Rather, the other person’s insurance company is responsible for paying for your pain and suffering. That’s typically the larger portion of the case.

What is a Medical Malpractice?

Medical malpractice occurs when a physician or other medical professional fails to adhere to the appropriate standard of care and as a result of that failure, causes an injury to someone else.

What is “Standard of Care”?

All doctors and medical providers are required to provide medical care which is consistent with appropriate medical care. This is defined as the reasonable care standard; in other words, what would a reasonable doctor in a like specialty have done in similar circumstances. If the doctor’s care who is alleged to have committed malpractice fell below that standard, then it may equate to malpractice.

What is a misdiagnosis and how I can I protect myself?

A misdiagnosis is when a doctor comes to false conclusions about the causes of a particular ailment. Thousand of injuries and deaths each year are attributable to doctor misdiagnosis. The best way to prevent a misdiagnosis is to be an informed patient and disclose everything to your doctor. If you are unsure, it is always a good idea to get a second opinion and to consult a specialist.

How long do I have to file a claim if a family member or I have been injured by a medical professional’s negligence?

Pennsylvania law provides the injured party two years to file a lawsuit for medical malpractice.

What does it mean that I must give “informed consent?”

Doctors and medical providers are required to make sure patients are informed of all facts regarding medical decisions, including the known risks of a medical procedure. An informed patient has the right to refuse a doctor’s care at any time, and a doctor who does not provide vital medical information is vulnerable to a lawsuit for violating the informed consent rule.

What sort of damages am I entitled to if I am injured?

In Pennsylvania, victims of medical malpractice are entitled to both economic and noneconomic damages. Economic damages are those that include medical bills, and other healthcare costs, as well as lost wages. Non-economic damages can include anything else that may have been lost as a result of the accident, such as pain and suffering.

What are the most common types of medical malpractice?

The most common types of medical malpractice committed by physicians are misdiagnosis, a failure to diagnose or failure to provide the proper extent of care, errors involving medication, and surgical mistakes.

What do I have to prove in order to win a medical malpractice case?

• A duty on the part of the medical provider to render services based on the standard of care of similarly situated practitioners
• A breach of that duty
• The breach causes the injury
• Damages resulting directly from the injury or injuries

What does it mean that I must prove my case by a “preponderance of the evidence?”

By a “preponderance of the evidence” is the burden of proof required of the plaintiff in most civil cases filed in the United States. This means that the evidence against the defendant must be tipped, ever so slightly, against the defendant in order for the defendant to be liable. This is a much less stringent standard of proof than the one required in criminal trials, which is that of “beyond a reasonable doubt.”

How much will I be able to recover for a medical malpractice case?

There is no way to tell exactly how much a patient-client will be able to recover because there are many different factors at play. Of course, the amount will vary with the nature of the injury sustained as a result of the healthcare provider’s negligence. Also considered are the victim’s medical expenses, lost earnings before and after the event, and the extent of the pain and suffering as well as permanency of the injury.

I was treated by a physician, and my symptoms have gotten worse, not better. I think I may have a claim against my doctor. What should I do?

First, the best thing to do is to see another doctor to remedy the situation as quickly as possible. Under these circumstances, you may want to consult an experienced medical malpractice attorney. By putting it off any longer, you may be jeopardizing your health, as well as your chances of recovering damages caused by the doctor’s negligence.

Will I have to go to trial?

It is very possible that your case may have to go to trial. Insurance companies do not like to settle cases, and much of it will depend on the facts, injuries, and medicine at issue. Although many cases settle well before going to trial, some even before the complaint is filed, there are many cases, particularly those involving medical malpractice, that do in fact go to trial.

What are some of the ways we attack the defense medical expert’s opinion?

We start with the thinking that everything the defense expert is saying in his or her report is false, and we then force the expert to prove each and every portion of the opinion. This is done at the defense expert’s deposition or at trial by way of cross examination. We research the background of the expert, find prior written opinions or depositions from other cases, and scrutinze what the expert has said before and utilize that to destroy the expert’s opinion at trial.

What is a Functional Capacity Evaluation?

A Functional Capacity Evaluation is a “test” performed by your doctor ( or sometimes by the defense medical expert) in the doctor’s office utilized to determine your ability to perform basic functions of your occupation. The doctor completes a form during the test and it may be used as a basis of the expert’s report and expert opinion. So, for instance, the doctor will ask you to bend or stoop, and the doctor completes the form and indicates the degree to which you can do that. The form covers a wide range of physical movements. It can be a very important document in your case, particularly as pertains to your disability.

Do defense expert witnesses utilize deceptive tactics and misrepresentations?

Yes. Defense medical experts are hired by the defendant’s attorney and insurance company to render an opinion regarding your injuries, once the case is in suit. It is your lawyer’s job to uncover those misrepresentations. Defense doctors may claim to be experts in some specialty or profess to have a formal medical degree or specialized training when in fact they don’t. How prevalent is it? It’s not an epidemic in defense medical experts, but it does occur with some frequency. The internet certainly provides certain tools to weed out theses misrepresentations, but the inquiry does not stop there. Your lawyer should have access to his or her local trial bar materials on experts, and should be able to cull through those documents, for instance prior deposition testimony, to pin the defense expert in flat out lies, for instance in relation to his or her medical training. In addition the amount the expert gets paid annually by a particular defense firm or insurance company is discoverable information in Pennsylvania, and can go a long way to showing the jury that the defense medical expert is biased in favor of the insurance company. The defense is ultimately paying not only his bill, to provide an opinion in court in the case against you, but essentially is also paying the defense expert’s annual salary. This can be very good ammunition at trial if used effectively.

Is it possible to sue someone other than my doctor for medical malpractice?

Yes. A medical malpractice lawsuit can be filed against any and all medical professional, including doctors, nurses, physical therapist, and medical technicians.

How can I learn if my doctor or prospective doctor has been sued for a medical malpractice?

If you doctor was sued for malpractice your state licensing board should have a record of it. You can submit a request for the information.

Can a mammogram contribute to a misdiagnosis of cancer?

Mammograms are oft-used tool for breast cancer detection. It is commonly advised that women of a certain age make regular mammogram appointments. This is suggested even for women who are not showing signs of having breast cancer and especially for women who have a history of breast cancer in their families.

And while mammograms are undeniably important to a woman’s continued health, there are reports (such as the one described in this Harvard School of Public Health press release) suggesting that routine mammograms may actually be contributing to over-diagnosis of breast cancer.

Having regular mammography screenings is still very important to catching breast cancer early — but be aware that a diagnosis of breast cancer may be incorrect and calls for a second opinion.

Legally, is there a very big difference between failure to diagnose cancer & misdiagnosis of cancer?

Whether a doctor has failed to diagnose your cancer or has misdiagnosed your cancer, he or she may have committed medical malpractice. Of course, both cases depend on the details. For both, it is necessary to prove that a reasonable doctor should have been able to accurately diagnose your cancer. Failing to make that diagnosis, or misdiagnosing, can be seen as medical negligence.

Who should be held accountable for my surgical error?

Surgical errors happen often and in a number of ways. Examples of surgical errors include making an erroneous incision, operating on the wrong part of the body, administering an incorrect amount of anesthesia or other medication, and even leaving a surgical implement inside a patient. If a surgical error happened to you, there are multiple entities which may be blamed, including the surgeon, a nurse or other medical assistant, the anesthesiologist, a pharmacist, or the hospital itself. There are a number of ways in which a hospital and its staff can be found negligent in the event of a surgical error. Speak with a personal injury attorney to learn more.

Can medical students be sued for medical malpractice?

Yes. Medical students are not seasoned doctors or nurses, and they certainly need the knowledge of hands-on training to complete their education, but if a medical student makes a mistake that puts a patient in harm’s way, he or she can be held accountable.

In fact, medical students are insured with medical malpractice coverage in case a mistake occurs during their training. Either the school at which the students are enrolled will supply this coverage or the facility in which they are training will supply the coverage.

If I signed a consent form before my medical procedure and was harmed in some way during or as a result of that procedure, can I still be compensated?

Yes, it is still possible to earn compensation if you signed a consent form. If the medical professional acted negligently or otherwise acted outside of the standard of care, that person may be found liable.

What kind of money can I recover from a medical malpractice suit?

It depends. In a medical malpractice case there are economic damages, non-economic damages, and punitive damages.

Economic Damages. These damages may include medical expenses, inability to earn money, and lost wages.

Non-Economic Damages. These damages may include pain & suffering and disability.

Punitive Damages. If is found that medical professional intentionally harmed you, punitive damages may be awarded.

What is wrong-site surgery?

Wrong-site surgery is a very serious and potentially life-threatening form of medical malpractice. Wrong-site surgery is when a surgeon does one or more of the following:

• Performs surgery on the wrong body part
• Performs surgery on the wrong side of the body
• Performs the wrong surgical procedure
• Performs surgery on the wrong patient

Wrong-site surgery should never occur. Before performing a procedure, all medical professionals involved are supposed to verify the procedure being performed, the name of the patient receiving the procedure, and the part of the body on which the procedure will be performed. This should then be re-verified immediately before surgery.

Is it important to get an autopsy in a medical malpractice case in which the doctor is accused of negligently killing a patient?

Yes, an autopsy is necessary in such a malpractice case. It is important to show that the doctor’s negligent actions were the direct cause of the patient’s death, and one of the only ways to accomplish this is to have an autopsy.

I heard objects can sometimes be left inside of a patient during surgery. What objects are most often left behind?

With so many objects being put use during certain surgeries, it is possible that, occasionally, one is going to get left behind. Objects commonly left inside a patient include clamps, the blades of broken scalpels, gauze, and towels. However, the object most commonly left inside a patient is the sponge. Sponges are used frequently during surgeries and can become easily obscured within incisions.

A member of my family has died and I now need the advice of a personal injury attorney in Pennsylvania. Can you tell me what documents to bring to our meeting / how I can prepare?

Losing a loved one is the hardest thing to deal with and you have our sincerest sympathies. To help make your meeting with a Pennsylvania personal injury attorney go as smoothly as possible in this trying time, do your best to collect some or all of the following:

• An original death certificate, which can be provided by the funeral home
• A bill from the funeral home, marked ‘fully paid’
• If an autopsy has been performed, let us know and we can look into it
• Some basic information on any doctors the loved one has visited in recent years
• Some basic information on family members
• A copy of your loved one’s will, if one was made
• Any and all of your loved one’s medical records

There is more information you can bring but this is a fine start. If you have any questions regarding these materials and anything else you’d like to bring to your meeting, call you Pennsylvania personal injury attorney. He or she will be glad to offer guidance.

Can a dentist commit medical malpractice?

Yes. A dentist who has failed to provide good dental care to a patient or has caused injury to the patient due to his or her negligence has committed dental malpractice.