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a guide to

Medical Malpractice

Doctor Patient Confidentiality

Learn about your rights and under which circumstances a doctor can release your records.

Every doctor-patient relationship carries with it a duty on the part of the doctor or other health provider to keep patient information private and refrain from disclosing it to third parties without your consent. A doctor or medical professional who breaches this duty by disclosing confidential information, including your medical records, may be liable to you for damages for any injury (including embarrassment) you suffer from the disclosure. The duty of confidentiality may not be broken absent authorization from you to release your records to a designated third party.

There are a number of exceptions to this rule whereby a health care provider can release your records without liability. Among these are the following common scenarios:

  • Health insurance companies normally require patients to waive the right to confidentiality of information when submitting a claim for medical coverage.
  • If a patient sues a medical professional for malpractice, the patient's medical records and information may be released and used in connection with any litigation.
  • In certain situations, medical professionals are required to report certain kinds of patient information to authorities, such as certain communicable viruses or diseases.
  • Doctors generally must report suspected incidents involving evidence of child abuse or gunshot wounds.

Delayed Cancer Diagnosis

Read why delayed cancer diagnosis is the most common type of medical malpractice cases.

One of the most common types of medical malpractice cases is misdiagnosis or delayed diagnosis of cancer. This is particularly true of breast cancer, which, according to various reports, represents the largest segment of medical malpractice lawsuits in the U.S. One reason for this is the fact that breast cancer is so common relative to other forms of cancer. Breast cancer is the most common type of cancer among women in the U.S. and the leading cause of death for women ages 40 to 55. Despite this, many women who develop breast cancer and could be treated are denied the opportunity when physicians negligently fail to diagnose their condition until it is too late. The result of this negligence is often the loss of treatment options and/or the chance of survival. The following are examples of some of the more common acts of negligence by physicians in failing to timely diagnose and/or treat breast cancer:

  • Failing to order a mammogram, misinterpreting a mammogram, or otherwise failing to react to mammogram findings
  • Relying upon mammography in place of a physical breast examination
  • Failing to perform a breast examination which would have identified an obvious tumor
  • Failing to identify a palpable lump during a breast examination
  • Diagnosing a breast infection instead of a cancerous tumor
  • Diagnosing a tumor as benign and failing to perform a biopsy
  • Disregarding a history of sharp pain in the breast, or signs of retraction
  • Failing to determine the cause of nipple discharge
  • Relying upon negative aspiration biopsy
  • Failing to order additional radiological tests, a biopsy, or ultrasound when appropriate
  • Failing to communicate with the patient

When a diagnosis of cancer is made, the physician examines the affected tissue and identifies the type of cancer by the microscopic appearance of the cells. The doctor then classifies the cancer according to how advanced it is - otherwise known as staging. Cancer treatments vary widely depending upon the type of cancer and its stage. The probability that breast cancer will recur in a patient is directly related to the stage of the malignancy. If breast cancer is detected and addressed before the cancer has spread to any lymph nodes, the chances of survival are significantly better than otherwise. As such, any undue delay in diagnosing or treating breast cancer can have devastating consequences.

Damages

Read about compensatory and punitive damages in negligent medical malpractice cases.

Compensatory Damages

Compensatory damages are derived from the word "compensate," meaning "to make up for" or "to make whole". Generally, these damages can be broken up into two sub-categories- actual damages and general damages. Actual damages seek to reimburse a plaintiff for out-of-pocket expenses incurred, or financial losses sustained. Actual damages typically include:

  • Medical and hospitalization bills incurred to treat your injuries
  • Wages lost due to work missed while you recuperate
  • Costs of household or nursing help during recovery, including costs of wheelchair or crutches required

As noted, injured victims can also sue for general damages in addition to actual damages. General damages include the things that can't be precisely documented in dollars spent, including:

  • Pain and suffering endured due to injuries and any subsequent mental anguish
  • Disfigurement resulting from injuries
  • Value of medical expenses you are likely to incur in the future
  • Value of wages you are likely to lose in the future
  • Permanency of injury and resulting pain and suffering
  • Loss of consortium (benefits of a relationship)
  • Loss of opportunity
Punitive Damages

In addition to compensatory damages, punitive damages may be awarded in certain cases. Punitive damages are not based on actual injuries sustained. Rather, they are a way to punish the defendant for intentional conduct or gross negligence - behavior that is so egregious that a civil court penalty is warranted in order to deter the defendant from committing the same act again in the future.

Example: Based on a true story, if a doctor delivers a woman's baby and then makes a small incision on her torso signifying that he was responsible for her children, the woman should expect significant punitive damages to be awarded against the doctor.

In more unusual cases, a patient may succeed in proving that a doctor promised a particular result from a medical treatment or procedure and failed to obtain the promised result. In these types of cases, it may be possible to recover damages from the doctor for the loss of the value of the successful treatment.

Damages are also available in cases where the plaintiff is able to prove that he or she was not provided with proper informed consent. The damages in such cases are different that in a typical negligence medical malpractice claim. As the premise for such cases is that the doctor treated the patient without their consent, the doctor may be liable for the wrongful touching of the patient, regardless of whether the treatment was successful.

Causation

Learn why determining causation can be so difficult in medical malpractice cases.

A medical professional may have been negligent in providing care to a patient, but sometimes that negligence is not the cause of the injury suffered by a patient. Because the law requires a connection between fault and injury, not all instances of medical malpractice allow for an award of damages. Determining causation in medical malpractice cases often is very complicated and usually requires the assistance of expert witnesses.

Expert witnesses are usually required in medical malpractice cases to establish the standard of medical care in the geographical area or in the area of medical specialty at issue. In addition, expert testimony is required to establish that the malpractice caused the patient's injuries, unless the cause is obvious to a layperson, such as where a wrong arm is amputated or similar error.

In many cases, the cause of injury is less clear, and can be spread among many health care providers. For example, a patient may be treated by a number of doctors, nurses, and medical technicians in the course of a hospital stay. Determining which of these practitioners may have been negligent, and how that negligence may have caused a patient's injury, can be extremely complex. The first doctor may have incorrectly diagnosed a patient, but a subsequent doctor may have been negligent in failing to correct the diagnosis. A subsequent series of mishaps in the operating room, each by a different technician, may require naming each technician as a defendant because each mishap contributed to the injury. Additional injury may have been caused by the use of a defective medical device or drug, or the negligence of an operating room doctor. In such cases, experts are needed to determine the cause of injury in light of the unfortunate sequence of events.

Types of Malpractice

Find out about the most common types and what falls under medical malpractice.

The concept of medical malpractice negligence is very broad and encompasses virtually every kind of mistake that could be made by a medical professional. The most common cases brought against doctors are:

  • Improper diagnosis
  • Failure to diagnose
  • Medication errors
  • Surgical errors such as a slip of the knife severing a nerve during an operation
  • Medical instruments, sponges, needles or other foreign objects dropped inside a patient and left there after surgery
  • Errors in prenatal diagnostic testing
  • Failure to advise of diagnosis
  • Lack of informed consent
  • Abandonment (failure to attend to a patient)
  • Improperly prescribing a drug
  • Failing to inform the patient of available treatments
  • Continuing a treatment that has been shown to be ineffective
  • Below standard treatment or incorrectly performed treatment

A doctor has a duty to you to use care and diligence to diagnose your illness so that the proper treatment can be recommended. In order to properly diagnose a condition, a doctor should ask about a patient's medical history as well as his or her family's medical history. The doctor also should ask for a detailed description of current symptoms and should perform a thorough examination which includes necessary diagnostic tests.

Example: After hurting your wrist you go to your family doctor, but he concludes it is just a sprain and doesn't request an X-ray, which would have revealed a fracture. The fracture goes undetected and, as a result, a permanent and debilitating injury to your wrist results. The doctor may be negligent for failing to order an X-ray, or possibly for not referring you to an orthopedist.

Doctors also have a duty to disclose information pertaining to the treatment you will receive. If your condition is such that it is beyond the scope of practice of the examining doctor, or beyond the doctor's expertise, he or she must refer you to a specialist. If your doctor fails to follow these basic principles, and injury is caused as a result, you may have a case for a malpractice claim. Medical malpractice can occur at any point in the diagnosis and treatment course. For example, the wrong chart could be placed at your hospital bedside, resulting in you being given medication that you are allergic to that causes serious harm or even death.

Informed Consent

Doctors must provide full information about your medical options so you can make the most informed choice.

The principle of informed consent requires a physician to provide information about a patient's medical condition and the available medical care options so that the patient may make an informed decision as to whether or not to consent to a proposed plan of treatment. The doctor must adequately inform the patient of the diagnosis, the nature and purpose of the treatment, any available alternatives, the benefits and risks of the procedure itself and the risks of not undergoing the procedure. In essence, under the concept of informed consent, the doctor must not only get the patient's consent to treatment, but the treatment must be obtained from a fully informed patient.

While consenting to treatment may impose certain limits on your rights, signing a statement assuming the risks involved with a procedure does not mean that you have no recourse if the health care provider fails to perform according to acceptable levels of care and is negligent. Though you may be consenting to certain risks inherent in the medical procedure, you generally do not consent to the negligence of the practitioner performing the procedure.

Forms  of  Consent

Consent to a treatment can be given either orally or in writing, as is common where doctors provide consent forms for patients to sign. There are some situations where consent of a patient is implied, as where the patient exhibits conduct indicating a willingness to undergo the treatment, or in the case of an unconscious patient who is unable to consent, and there is no family member available to give consent on his or her behalf (and no living will which directs otherwise).

If the patient is a child it is usually necessary for a parent or guardian to consent to any treatment, unless treatment is required in an emergency situation and the parent or guardian is unavailable to give consent. Exceptions may apply to situations where a minor seeks treatment for a sexually transmitted disease, or for alcohol or drug problems.

Damages

The damages a patient may recover in this kind of medical liability action are different from the damages that might be obtained in a medical malpractice negligence action. Because the liability relates to the lack of consent to a procedure, a patient may be able to recover damages even if the medical procedure was successful, whereas in a negligence case, the plaintiff is required to prove damages.

Hospital Liability

Find out what responsibility the hospital has in medical malpractices cases.

It goes without saying that many serious claims for medical malpractice arise from procedures and treatment given to patients in hospitals. A hospital itself is generally liable for any actions of its employees that are undertaken within the scope of their employment. For example, a hospital is responsible for the actions of a doctor or nurse employed by the hospital in the course of providing care to patients in the hospital.

Certain issues arise when a doctor is not an employee of the hospital, but rather has privileges at the hospital. Normally, these doctors bill patients for services directly, rather than through the hospital, though this is not always the case. Often, these doctors are considered independent contractors rather than employees of the hospital, and the hospital may not be liable for negligence of these doctors, though there are a number of exceptions to this rule that require careful analysis on a case by case basis.

Establishing a Duty of Medical Care

Learn when and if a doctor is obligated to provide treatment and care.

Doctors are not automatically required to treat or provide care to everyone they meet. In order for there to be a duty of a doctor or other medical professional to provide care to a patient, there must generally exist some form of voluntary agreement between the doctor and the patient. The agreement itself will establish the doctor-patient relationship, and from that point forward the doctor has a duty of care to the patient. Under certain circumstances, however, a doctor may have an obligation to provide treatment even if there is no actual voluntary agreement. In cases where a person is not conscious, a doctor-patient relationship is formed where family members of the patient retain the doctor's services. In addition, among other exceptions, hospitals accepting certain kinds of federal funds may be required to provide care to indigent patients under certain circumstances, and hospital emergency rooms may be required to provide care to anyone coming in with a life-threatening condition.