Doctor's Mistakes Can Create Valid Malpractice Lawsuits
Doctors are human beings and make mistakes like anyone else, but when a mistake reflects a serious error in judgment and harms the patient, it may rise to the level of medical malpractice. In such cases, the doctor is generally responsible for economic and other damages. However, bringing an Ohio medical malpractice lawsuit is a significant undertaking.
What Acts May Constitute “Malpractice”?
Medical malpractice can refer to a number of actions or inactions. These go beyond simple human error. While most malpractice cases are not the result of intentional malfeasance, they do involve negligence. In other words, the doctor wasn’t trying to hurt patient. The issue is, it still happened. Here are a few examples:
- A doctor fails to properly diagnose a patient’s medical condition;
- Conversely, there is a misdiagnosis – e.g., a doctor tells a patient they have cancer when they do not;
- There is an unreasonable delay in providing treatment. Perhaps medical staff forces a patient to wait too long for an emergency procedure;
- A doctor or hospital fails to provide medically appropriate treatment for the patient’s condition;
- There are mistakes made during treatment, e.g. a doctor makes the wrong cut during surgery; and
- A nurse or other hospital staff fails to properly carry out physician orders. For example, dispensing the wrong medication to a patient.
How Do I Establish There Was Malpractice?
Medical malpractice is different from other types of personal injury claims. If a negligent driver runs a red light and hits your car, you do not need an expert witness to establish the cause of the accident. But it is legally impossible to prove medical malpractice in Ohio without such expert testimony.
The key to any medical malpractice case is establishing the standard of care. This is a broad term that refers to the level of medical care that a health care professional of reasonable skill and competence would provide under the circumstances of a given case.
In court, a medical malpractice victim must be able to prove three things related to standard of care:
- That the standard of care existed within the applicable medical community;
- That the standard was breached by the defendant; and
- That the breach was the “proximate cause” of the victim’s injuries.
Typically, the plaintiff needs at least one expert witness to establish these things. For example, if your baby sustained a birth injury due to a negligent delivery, you will need an expert who can establish the standard of care for obstetrics, identify specific acts by the defendant that deviated from that standard, and connect those deviations to the birth injury. The expert will need to have experience in the obstetrics specialty. The court would not accept testimony from, say, an oncologist.
Will “Informed Consent” Defeat My Malpractice Claim?
Hospitals and doctors often try to prevent medical malpractice lawsuits by claiming the patient knowingly accepted the risks of treatment. Doctors often require that patients sign consent forms that purport to disclose all the potential complications that may arise during a procedure. If something then goes wrong, the doctor and the hospital will claim the patient gave “informed consent,” thereby absolving them of any legal liability.
In fact, that is not how the law works. A patient cannot consent to negligent acts. And a physician or other health care provider cannot ignore the appropriate standard of care just because the patient signed a piece of paper.
How Much Is My Malpractice Claim Worth?
Like any personal injury lawsuit, a medical malpractice plaintiff can recover the full amount of their economic losses. This requires they stem from a health care provider’s negligence. These “economic losses” include:
- the cost of medical care (to correct the defendant’s mistakes),
- lost wages for the time the plaintiff is unable to work, and
- other related out-of-pocket expenses.
A plaintiff may also seek noneconomic damages. This is an award related not to any quantifiable losses but the victim’s pain and suffering because of the defendant’s malpractice. As a result of intense lobbying by medical industry groups a number of states, including Ohio, limit the amount of noneconomic damages a person may receive.
Ohio’s law regarding noneconomic damages is complicated. Here is a basic rundown:
- For a single plaintiff in a medical malpractice case, noneconomic damages cannot exceed $250,000 or three times the amount of economic damages awarded, whichever is higher, to a maximum of $350,000. If a jury awards the plaintiff $100,000 in economic damages it can also award up to $300,000 in noneconomic damages.
- The same rules applied if there are multiple plaintiffs to a medical malpractice lawsuit arising from the same occurrence. However, the absolute cap on noneconomic damages is $500,000 rather than $350,000.
- In cases where the victim has suffered a catastrophic injury–i.e., permanent disability or loss of a bodily organ–total noneconomic damages may go as high as $500,000 for an individual plaintiff and $1 million for multiple plaintiffs.
- The damage caps do not apply to wrongful death claims.
How Long Do I Have to File a Malpractice Lawsuit?
Even if you have a well-documented medical malpractice claim–including expert testimony and proof of your losses–it will not matter if you do not meet certain legally imposed deadlines. All lawsuits are subject to a statute of limitations. In malpractice cases, Ohio law imposes a one-year deadline starting from the date the alleged malpractice occurred.
There are, however, exceptions to this rule. First, if you give the doctor or hospital written notice of your intent to bring a malpractice claim before the one-year deadline expires, the law gives you an additional 180 days (six months) to file your lawsuit. The written notice, though, must meet certain criteria and is more complex than it sounds.
Second, if a physician continues to treat the patient for the condition at issue, the one-year deadline does not start until the termination of the physician-patient relationship. Third, if you do not discover the injury until sometime after the malpractice occurred, the deadline starts as discovery. However, regardless of when you knew about the injury, you must file a malpractice lawsuit within four years of the original act.
Has Your Doctor Been Disciplined for Medical Malpractice in Another State
Although healthcare professionals are licensed and regulated by the State of Ohio, that does not mean a patient injured due to medical malpractice can solely rely on regulators to take remedial action against negligent doctors. In practice, licensing deals with a much broader range of potential misconduct than medical malpractice. And even where, for instance, the State Medical Board of Ohio takes disciplinary action against a physician, that does not provide any financial compensation for patients who may have been injured due to prior acts of malpractice. It is up to the patients to seek relief through the court system.
Ohio Doctor Previously Surrendered Medical Licenses in California, Louisiana
Something else to consider: A physician may be in “good standing” with the State Medical Board despite prior malpractice problems in other states. A recent report published by the Milwaukee Journal-Sentinel and USA Today highlighted the case of one Ohio physician who previously surrendered his license in at least three other states after facing malpractice allegations. These allegations included removing a healthy kidney during a planned colon operation and removing a healthy Fallopian tube that was somehow mistaken for an appendix.
As the Journal-Sentinel explained, doctors facing disciplinary charges from state medical boards often volunteer to surrender their license. This prevents the board from taking any further action. It also typically frees the doctor to move and begin practicing in another state without restriction.
Now, many state boards have the authority to suspend a doctor based on adverse licensing actions taken in other states. Indeed, the Ohio doctor cited in this report left New York after the licensing board there moved to discipline him based on his prior decisions to surrender licenses in California and Louisiana. But the Journal-Sentinel noted that such enforcement is “spotty” at best and that many state boards “don’t even search a national database of troubled physicians.”
More to the point, when a doctor surrenders a license, there is little public information disclosed about the original malpractice allegations. So patients in other states may be at risk of a doctor with a questionable history moves into their state. Altogether, the Journal-Sentinel found more than “250 doctors who surrendered a medical license were able to practice in another state.”
In the case of the Ohio doctor, the Journal-Sentinel said he is currently working for an urgent care facility in Cincinnati. A spokesman for the Ohio State Medical Board told the reporters it “would not say why the board has not taken action against him.” And because of the secrecy surrounding licensing matters, the Board could not disclose any complaints filed against the doctor.
For his part, the doctor told the Journal-Sentinel that he “always went by the textbook” went practicing medicine and did nothing wrong. The doctor insisted the decision to surrender his Louisiana and California medical licenses was based on his belief “that the system was rigged against him” and it would have cost too much to defend himself. The doctor added that “Ohio is the only state to fully investigate all the cases and it concluded that he should be allowed to practice,” although he acknowledged he was no longer performing surgeries.
Is Your Hospital Safe? LOW VOLUME HOSPITALS PROVE MORE DANGEROUS
Some may think choosing a hospital is an easy task. Many people choose the closest hospital to their home or continue to receive treatment from a facility because, “that’s where I’ve always gone!”
Unfortunately, studies show that not all hospitals are created equal.
U.S. News and World Report performed a study on “inexperience” in hospitals and what it means to receive treatment from a facility with fewer doctors, patients, and surgeries performed.
How Many Surgeries Has Your Hospital Performed?
The study by U.S. News and World Report compares the mortality rate of different surgical procedures based on the number of cases performed at hospitals of different volumes.
One of the most staggering figures (see figure on right) deals with the mortality rate of knee replacement surgeries. In hospitals with “Very Low” volume, where an average of 12 knee replacement surgeries were performed a year, the mortality rate was increased by 106%. That means that, overall, patients that underwent knee replacement surgery in the “Very Low” volume centers were nearly 70 percent more likely to die than patients that attended higher volume hospitals.
Similar results were seen in treatments involving hip replacement surgeries and congestive heart failure.
Most patients don’t think to ask how many surgeries their hospital or doctor has performed, trusting that they are with experienced medical professionals and are in good hands.
Know the Facts
When interviewed, most doctors reported that their patients would rather attend a local doctor or treatment center rather than drive to an unfamiliar area with a larger, “more established” reputation. However, this mindset can cause many patients to undergo surgeries in facilities with limited experience, causing complications, infections, or even death.
Dr. Steven Nissen, the chief of cardiology at the Cleveland Clinic, explains, “If you’re in a local institution with limited experience and things go wrong, there’s no going back.”
Lower volume hospitals will not advertise the fact that they have not performed different surgeries in large quantities so it’s important to ask and get the correct statistics. Driving an extra 30 minutes just might save your life.
Ask Questions
Some examples of questions to ask your medical provider before a surgery are:
- How many times have you performed this specific surgery?
- What is your success rate for this specific surgery?
- Are there alternative operations or treatment options for my condition?
- What is the follow-up care like after my surgery?
- What will my medical team consist of? (Nurses, doctors, surgeons, etc.)
Do You Need Help from a Cleveland Medical Malpractice Attorney?
As you can see from this brief overview, a medical malpractice lawsuit involves a lot of moving legal parts. This is not something you can handle on your own. If you have been the victim of a physician’s negligence and need help from an experienced Cleveland medical malpractice lawyer in assessing your claim, contact the offices of Tittle & Perlmuter today to schedule a free consultation.
