When a doctor makes a mistake – such as making a wrong diagnosis, giving improper treatment, or making a surgical error – the consequences can be life-threatening. These mistakes can lead to further suffering on the part of the patient, or even the patient’s death.
If you or a loved one has been injured or were wrongfully killed due to medical malpractice, you may be eligible to claim compensation for damages, mental anguish, and the accumulating medical expenses.
What Are the Requirements to Make a Claim?
Medical malpractice cases are treated differently than most personal injury cases. In order for a case to even be considered, the plaintiff must be able to prove the following:
- The plaintiff had a doctor-patient relationship with the defendant
- The plaintiff hired the doctor to treat an injury or illness
- The doctor agreed to be hired and perform treatment on the patient
Cases where a friend or colleague made a recommendation outside of the doctor-patient relationship do not qualify for a medical malpractice lawsuit. This is because neither the doctor nor the patient had any legal obligation to give or take the advice given during the exchange between the two.
Medical Professional’s Unprofessional Actions
In order to have a valid claim for a medical malpractice suit, you need to have evidence of the negligence or unprofessional actions of a healthcare professional. The evidence must be clear enough to link the new injury or worsening condition of the patient to the actions of the doctor or hospital. This can include actions such as immoral behavior, purposely withholding medicine, and ordering medicine for the patient without checking their allergy history.
The evidence must also show that the harm could have been avoided had the doctor been acting competently. This requirement is set in place to protect doctors from being held liable for the worsening of the patient’s condition due to circumstances that were outside of their control. A doctor is required to be reasonably skillful and careful when handling a patient, but this does not mean that they have to be perfect or that the patient is always going to get better under their care.
Being able to prove a doctor’s negligence or incompetence is the most crucial element of any medical malpractice lawsuit. Almost every state requires that a patient present a medical expert to discuss the appropriate standard of care and show how the medical professional failed in their duty to the patient. The necessary qualifications of the medical expert vary by state, but all medical experts must be approved by the court system to have any standing.
Common Types of Medical Malpractice
There are several different types of medical malpractice, ranging from misdiagnosis to leaving a medical item inside a patient after surgery. The most common types of medical malpractice lawsuits are as follows:
1. Misdiagnosis/Failure to Diagnose
Different illnesses and health conditions may have the same symptoms. For example, the common cold and the flu can both cause a fever, chills, sore throat, and a runny nose. It is up to medical professionals to run the proper tests to determine which ailment you or your loved one is suffering from.
For example, a patient could come in complaining about a sore throat. The doctor, after learning that the patient has been to a baseball game the night before, deems that the sore throat is from strained vocal cords. The doctor failed to do any tests to rule out any possibility of a worse condition, such as strep throat or the flu. This leads to the patient’s condition worsening.
If a doctor who was acting competently would have been able to diagnose the patient’s illness under the same circumstances, then the patient may be eligible for a medical malpractice claim. In order to prove medical malpractice, the patient should consult with a personal injury attorney from Branch & Dhillon to discuss their case and their options.
2. Improper Treatment
Improper treatments can cause a condition to go untreated or even worsen. In some cases, a medication or treatment plan that’s improperly administered will cause a patient to go without necessary treatment. In other cases, a medical professional may administer a medication or treatment plan that’s not suitable to a patient, causing allergic reactions, worsening of conditions, or even death. Patients who have suffered from improper treatment may be eligible for monetary compensation for damages and medical expenses.
3. Failure to Warn Patient of Potential Risks
Every doctor has a duty to discuss treatment options, treatment alternatives, and the risks of the proposed treatments with their patients. This duty is known as the duty to provide informed consent. Informed consent gives patients a full understanding of the proposed procedures and allows them to make an informed decision about whether or not to go through with the treatment. If a patient was not made aware of the potential risks of a procedure – risks which would have caused them to deny the treatment – the doctor may be liable for medical malpractice if the patient was harmed by the procedure.
Statute of Limitations in Medical Malpractice Cases
The injured party must file a medical malpractice case as soon as the injury or worsening condition is discovered. The statute of limitations is typically shorter for medical malpractice cases, but the individual time frame varies from state to state.
Texas Statute of Limitations
The statute of limitations for medical malpractice cases in Texas is two years after the illness or injury has been discovered. If the patient is undergoing treatment or testing for the condition, then the statute of limitations is not reached until two years after the treatment or testing has been completed.
South Carolina Statute of Limitations
South Carolina’s statute of limitations for filing a medical malpractice claim is three years after the illness or injury should have reasonably been discovered. If the illness or the injury is undergoing treatment or testing, then the statute of limitations is suspended. The time allotted to suspension is decided by the court system and must be approved by a judge.
Medical Malpractice Review Panels
Due to the complexity of medical malpractice lawsuits, it is often required that a panel of health professionals review a claim before sending it to the court systems. These medical professionals will:
- hear arguments from both the plaintiff and defendant;
- review presented evidence;
- hear expert testimony; and
- decide if a doctor’s actions constitute medical malpractice.
Any of the review panel’s findings can be admitted as evidence in a court of law. However – although a review panel has the ability to deem a medical malpractice suit invalid – it does not have the ability to award or deny compensation of damages. That power is given solely to the court system. A court may decide to review a medical malpractice case even if a review panel concluded that it was invalid.
Special Notice Requirements
Most states require that a plaintiff give the defendant notice before filing a medical malpractice lawsuit. The specifics behind this notice vary from state to state.
Texas Special Notice Requirements.
Under the Texas Civil Practice and Remedies Code, Section 74.051, a prospective plaintiff must send a written notice to each health care provider named in the lawsuit 60 days before the case is filed. This notice must be sent by certified mail with a return receipt requested.
The plaintiff must also provide the court with an export report on each defendant’s actions within 120 days of filing the lawsuit. This expert report must include the following information:
- The opinion of the qualified expert regarding the standard of care that should have been provided to the patient
- The way in which the defendant failed to meet this standard of care
- Evidence that this failure to meet the standard of care caused harm to the plaintiff
South Carolina Special notice Requirements
South Carolina Code of Laws Section 15-79-125 states that a plaintiff must send all potential defendants a Notice of Intent to File Suit when filing a medical malpractice lawsuit. This notice must include all of the following information for it to be valid:
- The names of all healthcare providers that are being sued
- A short statement outlining the evidence that shows how the patient was injured and why they are entitled to compensation
- The signature of the patient or their attorney
- The answers to any questions or similar disclosures required by the South Carolina Rules of Civil Procedure
South Carolina law also requires an Affidavit of Expert Witnesses to be sent to the court. The affidavit must specify and show evidence of the defendant’s improper actions.
In both Texas and South Carolina, failure to follow these laws will result in the case being thrown out. An expert attorney from Branch & Dhillon can guide you through the legal process and help you claim the compensation you deserve.
All states require that expert testimony be given as evidence during a medical malpractice lawsuit. The qualifications to be eligible to testify vary from state to state. A court will generally allow a healthcare provider with experience in the field in question to provide expert testimony. This expert must be approved by the court in order for their testimony to be deemed valid and usable as evidence in a court of law.
Medical Malpractice Damages
In order to protect doctors and other health care providers, each state places a limit on the amount of damages that can be awarded. This amount varies from state to state and on a case by case basis.
There are two different types of damages that can be awarded in a medical malpractice case:
The term compensatory damages refer to the amount of money that the plaintiff is owed in compensation for their injuries or loved one’s wrongful death. Examples of compensatory damages include:
- Medical bills
- Ambulance expenses
- Domestic services
- Lost wages
- Increased living expenses
- Pain and suffering
- Emotional trauma
- Loss of consortium
- Loss or impairment of physical or mental capacity
Punitive damages are a bit harder to win in medical malpractice cases. To do so, the plaintiff must be able to prove that the defendant’s negligence was malicious in nature and was intended to harm the patient. The laws concerning punitive damages vary by state, but both Texas and South Carolina allow a plaintiff to sue for punitive damages. (In South Carolina, whether or not to award punitive damages is decided in a separate lawsuit.) Punitive damages are intended to be a punishment for the defendant and to discourage them or others from engaging in the same behavior.
Medical Malpractice Attorneys
A patient should not have to shoulder the burden, pain, and costs they accumulate due to a medical professional’s mistake by themselves. If you or a loved one has been affected by medical malpractice, you may be eligible for compensation for medical expenses and other damages. Branch & Dhillon offers a no-win, no-fee policy, as well as a free, no-obligation consultation. Contact us today so that we can help you claim the compensation you deserve.