Damages for pain and suffering, including mental anguish, date back to Roman delicts, which is equivalent to today's tort system. The basic Roman delicts were iniuria (injury to person) and damnum iniuria datum (damage to property, including slaves). Under iniuria, the wronged party had to show that the tortfeasor acted willfully and intentionally to recover damages. The action was based on the plaintiff's "sense of outrage" and not on actual economic loss. Therefore the plaintiff could be compensated for "pain or distress of mind or body" in addition to any pecuniary damages. Whereas iniuria required a showing of ill will, damnum iniuria datum only required a showing of negligence. Eventually, Roman law evolved into only compensating for pain and suffering where the tort was intentional and only providing pecuniary damages in the sole case of negligence.
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7. Hospitals are afraid of this investigation: If a violation of the statute is alleged, the federal government comes into the medical facility and investigates not just the claimed violation, but any violation of any type from the statute. This gives the plaintiff lawyer great leverage with the hospital to settle both the state malpractice and federal EMTALA claims quickly and quietly.
For example, John Smith went to his local doctor because he had a black spot on his foot and his leg was painful. His doctor sent him to a surgeon who suggested a special procedure using a needle inserted into his leg artery to see whether the veins in John’s foot were blocked. The surgeon botched the procedure and John’s artery was damaged. Several weeks later John’s leg had to be amputated. When John consulted a lawyer and the lawyer investigated his claim, the lawyer found that John’s original foot condition was gangrene and he was always going to have to have his leg amputated, so the surgeon’s negligence in performing the procedure did not leave John worse off than he would otherwise have been and he fails the test of causation.
Doctors and hospital officials who subscribe to this philosophy, such as those at the University of Michigan Health System, the University of Illinois at Chicago Medical Center and Stanford University Medical Center say they tell patients when something went wrong and offer an apology and sometimes even compensation. They say the method is more humane and often eliminates lawsuits.
The injury resulted in significant damages - Medical malpractice lawsuits are extremely expensive to litigate, frequently requiring testimony of numerous medical experts and countless hours of deposition testimony. For a case to be viable, the patient must show that significant damages resulted from an injury received due to the medical negligence. If the damages are small, the cost of pursuing the case might be greater than the eventual recovery. To pursue a medical malpractice claim, the patient must show that the injury resulted in disability, loss of income, unusual pain, suffering and hardship, or significant past and future medical bills.
If you or someone you know is a victim, keep in mind that filing and pursuing a medical malpractice lawsuit can be an expensive and time-consuming affair. The claimant has to prove many things including injury due to the doctor’s malpractice and as a result, considerable loss of income, enhanced pain and trauma and unaffordable costs of health care and rehabilitation.
See if you can sue for emotional distress as a third party. In some states, you can sue for emotional distress as a third party. For example, you might have a case if your child or someone close to you was physically harmed in an incident. This incident must have occurred right in front of you. You would have a more solid case if you were also physically injured or experienced the threat of injury.
If a doctor fails to make an accurate and timely diagnosis of a harmful medical condition, patients may pursue a legal remedy by filing a medical malpractice lawsuit. One key question in these kinds of cases is whether the doctor breached the applicable "medical standard of care" under the circumstances. In other words, would a similarly-trained doctor in the same medical community have spotted the health problem (or identified it within a shorter period of time)? In the sections that follow, we’ll discuss some common misdiagnosis scenarios, and illustrate how a medical malpractice case might proceed.
There was a violation of the standard of professional conduct - The law acknowledges that there are certain legal standards that are recognized by the profession as being acceptable conduct. These standards of professional conduct are largely determined by the ethics rules of the state bar association. Attorneys have an obligation to their clients and the bar to operate within these standards. Clients have the right to expect attorneys will follow the law, behave in an ethical and honest manner, act in the best interests of their clients with integrity, diligence and good faith, and will execute their matters at a level of competency that protects their legal rights. Lawyers must also maintain and supply clients with full and detailed reports of all money and/or property handled for them. Finally, attorneys must not inflict damage on third parties through frivolous litigation or malicious prosecution. If it is determined that the standards of professional conduct have been violated, then negligence may be established.
We certainly understand that some people have a great need for the cost savings available for medical treatment abroad. But it’s also important to consider the protections available in a foreign jurisdiction if something goes wrong. After all, our American legal system is built on the foundation that society is safeguarded when wrongdoers are held legally accountable for their actions. If you have questions about medical malpractice, please call the experienced lawyers at Nelson MacNeil Rayfield and we will be happy to answer them.
One of the most common reasons that a physician may be accused of medical malpractice is due to the failure to diagnose. This is premised on the idea that the patient needlessly suffered for an extended period of time because the doctor failed to properly evaluate tests or run tests that should have reasonably notified him or her of the potential diagnosis. Other examples of medical malpractice include misdiagnosing a medical condition, failing to provide appropriate treatment, causing an unreasonable delay in treating a diagnosed condition, violating HIPAA laws, performing wrong-site surgery and performing surgery on the wrong patient.
For example, the standard of care for an eight-year-old child with a cough who is complaining of chest pain would be different than the standard of care for an 80-year-old man who’s complaining of the same symptoms but has smoked a pack of cigarettes daily for most of adulthood. In the case of the child, a reasonable, competent doctor would probably diagnose and treat the child for bronchitis, but that same doctor would run tests to determine whether the elderly smoker had lung cancer.
It may not be so easy to file a personal injury lawsuit against a hospital or other health care facility, if what went wrong was limited to the quality of medical treatment you received from a doctor. That’s because in many cases, a physician is not an employee of the hospital, but an independent contractor. So, the hospital may not bear the kind of vicarious liability that typically exists in an employer-employee relationship.