GUEST COLUMN
When going to a clinic or hospital, we should be able to put our full faith in the medical professionals that hold our health and well being in their hands. If they betray that trust, there is compensation available to you.
A recent issue of the Journal of the American Medical Association, has reported that over 225,000 people die each year due to medical errors.
Medical errors are the third leading cause of death in the country, behind heart disease and cancer.
The most frequently occurring errors are these:
- 12,000 deaths/year from unnecessary surgery
- 7,000 deaths/year from medication errors in hospitals
- 20,000 deaths/year from other errors in hospitals
- 80,000 deaths/year from infections received in hospitals
- 106,000 deaths/year from non-error, adverse effects of medication
What is medical malpractice?
Medical malpractice is just another term describing the negligence of a health care professional – including doctors, nurses, nurse practitioners and physicians assistants – does not deliver the standard quality of service or fails to follow accepted protocol. If a doctor, nurse or physician misdiagnosis your condition, gives you improper treatment, delays treatment, fails to treat your condition, gives you the wrong prescription medicines or fails to follow up with you, then you may have a valid medical malpractice claim.
Time limit for filing a claim
In every state, there is a statute of limitations on filing your medical malpractice claim, and if you miss that window of opportunity, you may lose your legal right to pursue compensation.
If the signs and symptoms of your injury did not surface right away, they will allot you a one-year period from the time that you became aware of the injury.
“Medical errors are the third leading cause of death in the country, behind heart disease and cancer.”
Steven J. Weinberg, McCune Wright Arevalo, LLP
In the state of California, you are given one year to file your malpractice case from the date that you sustained your injury or from the date of wrongful death.
There are, however, certain exceptions to this rule in cases where the injury victim is a child under the age of 6, or if the hospital you were at is owned by a county or local administrative agency. It is strongly encouraged that you talk to a California medical malpractice attorney about the specifics of your case to determine the actual time period that you have to file.
Assessing malpractice
When building your medical malpractice claim, several things must be determined. First you must establish that there was a doctor-patient relationship between you and the opposing party. You do this because a doctor is legally accountable to perform a certain standard duty of care for their patients. Once that is clear, you then investigate the area where your doctor failed to provide competent care. Was it in your diagnosis, your pain medication, your treatment, or your recovery? Following the natural chain of events, you must then show how their error resulted in your injury. The final element in a medical malpractice case would then be that the damage done occurred as a result of the doctor’s negligence.
Types of cases
Unfortunately medical negligence can occur in a wide variety of circumstances and generally involves either the failure to timely and properly diagnose or treat a medical or surgical condition:
- Anesthesia malpractice
- Aortic aneurysm malpractice
- Birth injury malpractice
- Cardiac/heart malpractice
- Cerebral palsy malpractice
- Deep vein thrombosis (DVT) malpractice
- Elder abuse
- Emergency room malpractice
- Failure to diagnose
- Gastric bypass malpractice
- Meningitis malpractice
- Misdiagnosis
- Nursing home neglect
- Orthopedic surgery malpractice
- Prescription errors
- Pulmonary embolism
- Surgical injuries
- Surgical malpractice
- Wrongful Death
Will you go to trial?
In most cases, people are able to negotiate with the opposing party and come to a settlement before filing formal charges.
Other cases are more complex and when the two parties cannot come to an agreement, trial becomes necessary and a jury verdict will be the final decision in the case.
“In medical malpractice… your evidence just needs to be more convincing than that of your opposing party.”
A qualified, experienced and talented litigator may be able to speed up the process and close cases more quickly.
Evidence
In a medical malpractice case you do not need evidence beyond reasonable doubt. This means that you do not need to convince the court 100% in order to win. In cases of this nature they consider “preponderance of evidence,” which means that your evidence just needs to be more convincing than that of your opposing party.
Damages
No case is exactly the same, and every situation has unique circumstances, but the standard formula to determine compensation will take several factors into consideration.
The estimated amount of recompense should include repayment for your medical expenses, pain and suffering, and loss of income for past, present and possibly future.
Each state has different statutes and limits on the amount of compensation you can be awarded for the various kinds of damage. As a malpractice victim in California, you would only be permitted to recover a maximum of $250,000 for your pain and suffering.
The economic damages, loss of income and medical expenses, may result in an additional claim award.
What if I get my medical care from Kaiser?
Kaiser is one of the largest health insurance providers in our state, making it one of the more common insurances carried by individuals and families here.
Kaiser doctors and nurses are required to provide the same level of care as other doctors and nurses in the community. If a Kaiser doctor or nurse fails to provide the same level of care as other health care professionals would under similar circumstances they may be responsible for injuries or death caused by their negligence.
When Kaiser medical malpractice occurs, many, but not all Kaiser members are required to submit their claim to binding arbitration.
In arbitration the case is decided by either a single neutral arbitrator or a panel of three arbitrators instead of a judge and jury. The decision of the arbitrators is final, there is no ability to appeal their decision.
While the process is different, the objective in your case is the same, full just and adequate compensation.
Steven Weinberg is a partner at McCune Wright Arevalo who specializes in nursing home and elder abuse, personal injury, product liability, and medical malpractice. Reach him at sjw@mccunewright.com or (602) 926-7797.
Guest columns are welcome by email to tcm@FollowOurCourts.com
