What kinds of damages can I recover in a medical malpractice lawsuit?
If you are a successful plaintiff in a medical malpractice lawsuit, your damages may be both economic and noneconomic. Economic damages are tangible losses that do not change in value depending on the subjective perceptions of jurors. In a medical malpractice case, economic damages may include further medical expenses, lost wages, lost earning capacity, vocational rehabilitation, and out-of-pocket expenses. Noneconomic damages are the intangible damages that the jury believes naturally flow from the type of injuries suffered by the plaintiff. These damages may include mental anguish, pain and suffering, and loss of consortium.
For example, if your doctor negligently leaves a sponge in your body during surgery, causing sepsis, you may need further surgery and time off work, and you may suffer a great deal of pain. You may be unable to do hobbies you previously loved. If you successfully prove medical malpractice, you may be able to recover not only medical bills and lost wages, but also damages for pain and suffering and lost enjoyment. Your lawyer may use experts to testify on your future losses. An economist, for example, may be necessary in a case involving lost future wages.
However, due to tort reform, many states have caps on the damages that you can receive as the victim of medical malpractice. In some states, such as Colorado, there are umbrella caps that limit both economic and noneconomic damages. In other states, such as California, the cap is simply a cap on noneconomic damages. When damages are capped, plaintiffs’ lawyers may be less inclined to take medical malpractice cases because they work on a contingency fee basis, taking a percentage of what is recovered. It may not be worth it to some plaintiff's lawyers to take medical malpractice cases in states where the damages are capped.
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Read more about tort reform.
How can I prove that my newborn’s medical condition was caused by physician error?
It can be challenging to prove a newborn's medical condition was caused by physician error. Often, a doctor or hospital will argue that a birth injury is a birth defect. A physician cannot prevent birth defects, which are usually a combination of hereditary and environmental factors.
To prove a birth injury, you would need to prove that the defendant owed a duty of care to the baby and that the defendant breached this duty by failing to act as a reasonably competent medical professional in the same specialty and geographic area would have acted under the same circumstances. You also would need to show that the breach was the actual and proximate cause of harm to the baby and that actual damages resulted. Medical negligence during childbirth can arise out of mishandling a difficult birth, induced labor complications, a misdiagnosis of a newborn’s medical condition, a failure to perform a C-section, or a failure to monitor fetal vital signs. When the appropriate procedures are not performed at the right time, loss of oxygen and permanent brain damage may result. Similarly, if forceps and suctions are required to force the extraction of a baby, nerve damage may result.
In order to prove negligence, you would need to retain an expert witness who can review the medical records and determine what should have happened during pregnancy or childbirth to prevent injuries from occurring. The expert may also testify as to his or her opinions about the harm that resulted from a medical professional's breach of duty.
Read more about birth injuries.
What is the role of an expert in a medical malpractice case?
Not every injury arising out of a medical procedure or failure to diagnose is the result of medical malpractice. In some cases, there is no way to avoid the harm to a patient. Expert testimony is crucial to a medical malpractice case. In most cases, this testimony is necessary because the jury would be unable to interpret the highly technical evidence, including medical charts, scans, and lab results, without the aid of expert testimony.
Therefore, it is necessary to retain an expert to testify as to the standard of care in the medical area of practice at issue, whether the defendant breached that standard of care, and whether the breach, rather than other factors, resulted in the patient's injury or death. In most cases, the expert will review the medical records associated with the case and also make reference to medical guidelines or medical publications to determine whether the standard of care was breached. The expert will also form an opinion and testify as to how likely it was that the breach of duty, rather than some other factor, caused the harm.
Different states have different rules about who may testify as an expert. If a defendant doctor is a specialist, most of the time, you will need another specialist in the same field to testify as to whether there was a breach of care. In some states, it is necessary for a plaintiff to provide the court with an affidavit from an expert or bring an expert's opinion stating there was a breach of care to a board, even before filing the lawsuit.
Read more about medical malpractice.
Are emergency room doctors held to the same standard of care as other doctors?
In an emergency room setting, there is increased pressure and less time to look into differential diagnoses. However, in many states, emergency room doctors are held to the same standard of care as other doctors. Usually in the context of emergency room errors, since the circumstances involve more pressure and less time, a mistake must be severe to be considered negligence. Both sides will hire experts to opine on the standard of care and whether it was breached.
In a few states, such as Georgia, emergency room doctors are not held to the same standard of care. Rather than acting with negligence, an emergency room doctor in those states must act with gross negligence in order to be liable for injuries that occur before a patient is stabilized. Depending on the state, gross negligence can mean there was an absence of any sort of diligence or the slightest degree of care, or that there was a conscious disregard for the need to use reasonable care.
Many emergency room doctors are not hospital employees. Generally, a hospital cannot be held vicariously liable for the negligence of non-employees or independent contractors. However, in the emergency room setting, the hospital does not tell the patient a doctor's employment status, so a hospital may be liable for medical malpractice by its emergency room physicians even if they are not employees.
Read more about misdiagnosis.
Read more about surgical errors.