Medical Malpractice

Published on: April 1, 2016

Court Rules Plaintiff Has Free Choice in Future Medical Providers, Increasing Damages Award

Sometimes cases are appealed because a party disagrees with the court’s decision on the issue of liability. However, sometimes the liability issue is not disputed, and the issue on appeal is only the amount of damages awarded. In a recent case, a plaintiff argued that his damages award was incorrect because it did not allow him to choose his own medical provider in the future. The man sued the government after his surgery at a VA hospital rendered him quadriplegic. The government was found liable for his injuries, and the man was awarded damages of over $4 million.

At trial, the man testified that after his surgery he must use a wheelchair for the rest of his life, must use a catheter, and suffers from pain daily. The court awarded the plaintiff $500,000 for past pain and suffering, $1.5 million for future pain and suffering, and $2,469,859 in economic damages. The damages included an award for future medical care and benefits. However, the trial court offset the economic damages award for the plaintiff’s future medical care by subtracting the medical care and supplies that would be provided by the VA for free, as a veteran.

The appeals court found that the plaintiff’s future medical care award should not have been reduced as a result of free services provided by the VA. The court held that federal law did not require an offset of a veteran’s damages that could be provided at a VA. In addition, the plaintiff was not required to take advantage of free services provided by the VA. Doing so would deprive the veteran of the ability to choose where to receive his medical care. The court said that he should not be forced because of financial reasons to continue to receive medical care from the provider that was actually responsible for causing his injuries.

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Published on: March 30, 2016

Medical Malpractice Caps Limit Compensation for Victims

By Moll Law Group

Medical malpractice damages caps limit the amount of money a plaintiff can receive from a medical malpractice claim. Often, the damages caps limit only non-economic damages, such as pain and suffering, mental distress, and loss of companionship. Yet, some states cap both non-economic and economic damages, which include medical bills and lost wages. Medical malpractice caps vary greatly by state and can have an enormous impact on the amount of money an individual plaintiff can receive.

The reasoning behind malpractice compensation caps is to limit the financial burden on the state and to minimize drains on the economy. In addition, some say that caps promote cost stability in the health care system and protect doctors from high insurance rates, helping to ensure that doctors are willing to practice in the state. However, those opposed to medical malpractice caps argue that legislatures should not be able to limit what courts determine that plaintiffs deserve.

Indiana Votes to Increase Medical Malpractice Cap

According to one news source, the Indiana legislature recently approved an increase to the state’s cap on medical malpractice damages for the first time in almost two decades. The state’s cap is currently limited to $1.25 million. The new law would raise the cap to $1.65 million in 2017 and to $1.8 million in 2019. Indiana’s current and proposed law encompasses both economic and non-economic damages.

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Published on: March 1, 2016

Recent Case Discusses How Settlement Terms Can Bar All Future Claims

By Moll Law Group

Settlements can be a useful way for parties to avoid a long, drawn-out trial and still come to what they feel is a fair agreement. However, settlements often come with conditions. One of these may be a settlement agreement that includes a release of future liability. In a recent case, a settlement release barred all future claims arising from an incident against any parties. This meant that even though the plaintiff settled with a car insurance company, she was no longer able to sue her doctor for alleged medical malpractice while treating her for the injuries she sustained in the accident.

A 15-year-old girl was a passenger in a car when the driver of the car lost control and crashed. The girl was treated by a doctor for injuries she sustained in the accident. After bringing suit against the driver, the girl’s mother signed a release in exchange for a settlement with the driver and his insurer. The release did not discuss the treating physician or the clinic in particular, but it released all other claims that might develop from the accident.

The girl and her mother then filed a malpractice suit against the treating doctor. Specifically, they alleged that the girl’s arm would have healed faster and required less treatment if the doctor had done a skin graft and told her how to properly care for her wounds.

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Published on: February 24, 2016

Mother’s Equitable Tolling Argument Rejected After She Sues Due to Birth Injury

By Moll Law Group

In a recent case, a plaintiff filed suit against a doctor and a prenatal care center after her baby sustained an injury during birth. However, the case was dismissed because the statute of limitations had passed, and the court rejected the plaintiff’s “equitable tolling” argument.

The plaintiff, an Illinois resident, was pregnant and went to a health center for prenatal care. She attended 12 visits at the Will County Community Health Center in Joliet, Illinois. In September 2008, the plaintiff sought treatment at an emergency room after experiencing abdominal pain. The emergency room doctor decided to induce labor, and the plaintiff began to give birth. During the birth, the plaintiff’s daughter became stuck and sustained an injury to her arm. After birth, the baby was diagnosed with Erb’s Palsy, a condition involving weakness of the arm due to an injury of the brachial plexus, a nerve cluster located in the shoulder. At the hospital, the baby’s arm was put in a sling due to the injury.

In May 2011, the plaintiff filed suit under the Federal Tort Claims Act against the health center and the emergency room doctor. Under the Act, a claim must be filed within two years after it accrues. The court found that the claims against the emergency room doctor and the health center accrued sometime in September 2008, shortly after the birth. Since the mother experienced a difficult delivery, and the baby was diagnosed with Erb’s Palsy, she had enough information to look into whether they caused the baby’s injury. Thus, the statute of limitations expired two years later, in September 2010.

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Published on: February 22, 2016

Surgical Error Cases in Illinois

By Moll Law Group

Surgeries carry high risks, even those considered “routine” procedures. Patients trust their surgeons to provide them with the necessary care. However, even surgeons can make mistakes. Some mistakes have minor consequences, while others are fatal.

In order to demonstrate a medical malpractice claim arising from an alleged surgical error, the plaintiff must show that the treating medical provider’s conduct fell below the applicable standard of care. Under Illinois law, doctors and other medical providers must provide treatment that meets the accepted level of care of other similarly situated medical providers under the circumstances. An individual must also have suffered an injury that was the result of the medical provider’s error. Finally, the plaintiff must prove that their injury was the result of the physician’s negligent conduct.

Surgical errors can occur for a number of reasons. The surgeon may be inexperienced, unprepared, careless, fatigued, or under the influence, or may fail to communicate necessary information to the patient. Errors made during surgery can result in physical injuries, as well as emotional pain, including depression and anxiety.

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Published on: February 19, 2016

Case Highlights the Importance of Experts in Medical Malpractice Cases

By Moll Law Group

Medical malpractice cases often rely on experts who can testify about what a reasonable medical provider would have done in similar circumstances. In fact, this is often the most hotly contested issue in many cases. In a recently decided case, the plaintiff brought a medical malpractice suit against an emergency room doctor after the doctor allegedly misdiagnosed her.

The plaintiff, a 15-year-old girl, fell from a large structure and was brought to the emergency room after demonstrating signs of a stroke. After performing some basic tests, the doctor believed that she had suffered a concussion and discharged her. The plaintiff went to another emergency room the following day after continuing to experience symptoms, where she was discovered to have suffered a stroke overnight.

The plaintiff alleged that her doctor was negligent by failing to diagnose her with a carotid artery dissection, a condition in which the layers of an individual’s arteries separate, often causing a stroke. She also alleged that the misdiagnosis delayed her treatment, which ultimately resulted in permanent neurological damage.

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Published on: February 8, 2016

Recent Study Examines Which Physicians Are Most Prone to Malpractice Claims

By Moll Law Group

Malpractice claims are quite prevalent these days, and there have been concerns for a long time about which physicians are most prone to malpractice claims. This has raised the important question of whether certain physicians are sued more than others and whether those physicians share certain characteristics. A recent study looked at 66,426 claims paid against 54,099 physicians from 2005 through 2014. The study determined the concentrations of claims among physicians, and it also identified characteristics of physicians at high risk for recurrent malpractice claims.

The study, published in the New England Journal of Medicine, found that around 1% of all physicians accounted for 32% of paid medical malpractice claims. This means that a small number of doctors account for almost one third of all paid claims. Comparing physicians who paid one malpractice claim to those who had paid two claims showed that those who paid two were almost twice as likely to pay another in the future. Physicians with three paid claims were three times more likely to pay another in the future. And those with six or more paid claims were 12 times more likely to pay another in the future.

Risks Vary by Characteristics of Physician

The study also found that there were variable risks of recurrent malpractice claims depending on the specialty. For example, the risk among neurosurgeons was four times greater than the risk among psychiatrists. Psychiatrists and pediatricians had the lowest risk of recurrence, while neurosurgeons, orthopedic surgeons, general surgeons, plastic surgeons, and obstetrician-gynecologists had the highest risk of recurrence.

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Published on: December 22, 2015

Doctors and Drug Companies May Be Liable for Medication Side Effects

By Moll Law Group

There are side effects with just about any prescription medication. For many patients, the decision to take a specific medication comes only after the benefits of the medication are weighed against the possible side effects, which range from minor annoyances to serious medical risks.

The laundry list of side effects that can be found on the internet and pharmacy receipts is generally discovered through the use of clinical trials. A medication with potential benefits to a specific class of patients is tested and retested to determine its efficacy as well as its risks. Doctors are then guided by the results of these trials. This evidence-based approach to prescribing medication helps doctors better predict how well medications will work in a given patient, and what the side effects of the medication are likely to be.

The evidence produced in clinical trials and reviewed by doctors also helps establish what is known in legal and medical circles as a “standard of care.” Doctors comprehensively review published material on a given medical condition or conditions and try to reach a consensus about how best to treat patients, taking into account all of their medical conditions, as well as other factors like their age, medical history, and additional medications.

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Published on: December 7, 2015

Emergency Room Errors May Amount to Medical Malpractice

By Moll Law Group

There are very few people who have not visited an emergency room at some point in their lives. Even the most cautious person can slip and fall, or cut their finger with a kitchen knife, and end up being taken to the emergency room. In addition to emergency rooms, urgent care centers are becoming more and more common as an alternative to traditional hospital emergency rooms. For some patients, urgent care centers are more convenient than a trip to the doctor’s office or a crowded emergency room.

No matter the venue, when a patient is in need of immediate medical care, the doctors charged with providing that care must provide the same level of care that other physicians, practicing urgent or emergency medicine, would provide under similar circumstances, taking into account a patient’s age and medical history. If they don’t, and their failure to meet these standards results in an injury or death to a patient, they may be liable for medical malpractice. Another name for medical malpractice is medical “negligence.”

For many patients, the worst part of an emergency room visit is the long wait before being seen. Hours after arriving at the emergency room doors, they are sent home with stitches, medication, or both. Usually, they return home tired but relatively healthy.

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Published on: November 28, 2015

Recent Study Considers the True Cost of Medical Malpractice

By Moll Law Group

According to a recent report published in the Journal of Patient Safety, it is estimated that over 400,000 patients die each year in the United States because of medical errors that could have been avoided. Another report found that medical errors like these cost Americans about $19.5 billion annually because of additional medical care, medication, and other corrective, or follow-up, treatments. With so much at stake in the complex world of medical mistakes, the question then becomes: who pays?

As with most other questions involving the health care industry, the answer to this question is complicated and varies depending on the parties involved. According to a recent news article, in some cases, if an error is made while a patient is being treated in a hospital, it is hospital policy to admit the mistake and provide free follow-up care. On the surface, admitting a mistake might seem like a recipe for being sued for medical malpractice. However, the article points out that there is research suggesting that an injured patient is less likely to sue for malpractice if a hospital comes clean about any errors that may have been committed.

More frequently, the article indicates, hospitals do not waive bills arising in the wake of a medical error, although the American Medical Association (AMA) and several other prominent groups are urging hospitals to do exactly that. If or until this happens, there are several other scenarios that are possible when costs associated with a possible medical error arise.

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