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When Doctors Are Hurting Not Helping
Millions of people every year find themselves in a doctor’s office at some point to see a
doctor or other medical professional. With so many people seeking better health, it’s
surprising to learn how many treatments ultimately lead to patient harm. The Journal of
Patient Safety estimates that 210,000-440,000 patients will be the victim of preventable
medical error leading to their death.
This makes medical negligence the third leading cause of death before respiratory
disease, accidents, stroke and Alzheimer’s. More than $3 billion are spent on medical
malpractice payouts every year, and even with the high amount of cases, only one out
of every eight cases of medical malpractice even result in a claim for damages.
With the amount of cases and seriousness surrounding medical malpractice, the
doctors and medical professionals hardly ever receive any backlash at all. About 5% of
doctors are responsible for paying only 54% of medical malpractice payouts and only
8% of doctors with two or more medical malpractice payouts are actually disciplined for
It’s important to also note before you file for a malpractice claim that you, as a patient,
are also required to be honest with your doctor or medical professional with your
medical history and personal habits. In order to make a correct diagnosis the doctor
must be provided with all the information they may need. For example, if you don’t
mention to your doctor about your chest pains you’ve had, they won’t be able to help
diagnoses you for possible heart disease.
On the other hand, if your doctor fails to ask questions about your medical history,
doesn’t recognize your symptoms, doesn’t give a proper diagnosis, reads a test result
wrong, or fails to order a correct test in order to diagnosis you, you may have a medical
malpractice claim on your plate.
Requirements for a Claim
Anything related to the medical field is extremely complicated and time consuming. For
example, in Pennsylvania, the statute of limitations on most medical malpractice or
negligence claims is 2 years. That’s the amount of time during which an individual can
file a lawsuit claiming injury related to medical malpractice by a medical professional. A
medical malpractice is not merely a mistake by a medical professional, there are
multiple elements that need to be established through evidence in order to bring a
successful medical malpractice lawsuit.
Elements like: the existence of a doctor-patient relationship, the provision of care that
fell below the accepted medical standard of care, a connection between the medical
professional’s medical negligence and the patient’s harm, and quantifiable harm to the
patient as a result are needed in order to prove negligence was made.
Was there a doctor-patient relationship?
You must be able to prove that the doctor you are suing was hired and accepted as a
physician. You may not sue a medical professional that you overheard giving someone
advice at a casual dinner party setting. In order to sue, you must have hired the doctor
to assist you and he must have accepted the offer. This element is generally easy to
prove, with issues only arising if a doctor did not directly treat you.
What is the medical standard of care?
The standard of care is considered the level at which the average provider in a given
industry would practice. It is how similarly qualified practitioners would have managed
the patient's care under the same or similar circumstances. The medical malpractice
plaintiff must establish the appropriate standard of care and demonstrate that the
standard of care has been breached. For example, you must be able to prove that your
personal injury or harm could have been avoided in a way that any other doctor, under
the same circumstances, could have prevented.
Is it medical negligence?
Committing negligence isn’t just receiving treatment or results that you aren’t happy
with, it’s whether the medical professional deviated from the medical standard of care. A
doctor’s care is not required to be the best, but should be careful and reasonably skillful
which is often the heart of a malpractice claim. You have to be able to prove that it is
more likely than not a medical professional’s incompetence actually caused the injury.
One of the reasons malpractice suits get so complicated and hard to defend is because
it is sometimes hard to determine whether what the doctor did, negligent or not, actually
caused the harm since the patient was already sick or injured in the first place. It is
common to have a medical expert testify if the doctor’s actions or negligence that
caused the sickness or injury.
Was there harm to the patient?
If it is found that a doctor has indeed, provided care below the standard in the field, it
isn’t a malpractice suit unless the patient suffered harm. Physical and mental pain,
additional medical bills, or lost earnings or work are examples of harm to a patient. It is
also possible for a patient to receive a health care associated infection (HAI) which can
cause serious harm, including death, even when everything else has gone right.
Common Malpractice Errors
Malpractice claims can vary from a doctor leaving an instrument in a patient’s body to
prescribing drugs without noting side effects. Types of malpractice claims most
commonly fall under the topics of: patient experiencing unknown risks, failing to
diagnose, and inadequate treatment.
Unknown risk to a patient
A doctor is required to inform a patient of the duty of informed consent, which is given
based upon a clear appreciation and understanding of the facts, implications, and
consequences of an action. An example of informed consent would be providing the
risks, benefits, and alternatives are associated with a procedure to a patient. If a doctor
ends up performing a different procedure than previously discussed with the patient
then it is viable to sue even if the procedure was successful. If the patient was not
properly informed and would have originally chosen not to go through the surgery or
procedure, then a medical malpractice suit is possible if the patient ends up injured.
Failing to diagnose
If a doctor doesn’t connect your symptoms to a medical condition and no course of
treatment is put into place, you may be viable for a medical malpractice claim.
Misdiagnosing is also a common malpractice when a medical professional says you
may have a condition when in reality you may have something different. If another
doctor who is competent and would have made a different diagnoses based on your
symptoms and illness, then you may have a malpractice claim on your hands.
Another common malpractice claim results from incompetent doctor practices. This is
when a doctor treats a patient like no other medical professional would. Improper
treatment to a patient also derives from a doctor or medical professional administers a
Exceptions to Common Medical Malpractices
Under certain circumstances, it may be appropriate for a doctor to withhold certain risks
to a patient as an exception to the informed consent rule. In an emergency situation,
there may not be adequate time to disclose the risks in order to save a life. In
emotionally unstable patients, a doctor may not need to get the patient’s informed
consent if the person is in distress or high anxiety. A procedure that may be life
threatening with high risks, might allow a doctor to be vague in order to keep the patient
level headed. This can also follow the idea that informing the patient too much about a
procedure may make a patient even more ill. Although these exceptions draw a fine
line, there are opportunities for doctors to withhold information for the patient’s mental
Questions to Ask a Potential Medical Malpractice
● If I received medical treatment in another state, where do I file the malpractice
suit? Can you as an attorney work with me in either state?
● What’s the time limit to file the medical malpractice claim?
● What if I don’t discover a doctor or medical professionals mistake until years
● What do your fees look like for a medical malpractice suit?
● What is the time frame for a typical medical malpractice suit?
● Does the state have a limit on how much money I can receive in a medical
● What is your firm’s experience with medical malpractice cases?
What to Do If Have a Medical Malpractice Claim
Medical malpractice claims are highly regulated and extremely complex. Laws vary from
state to state so it’s important to get legal advice and representation from a lawyer in
order to have a successful malpractice claim. Proving a medical malpractice case can
be difficult and require an intensive investigation. At the Law Offices of Cohen, Placitella
& Roth, P.C., our medical malpractice attorneys have been involved in a number of
cases and understand the type of skill and knowledge needed. Contact us today for a
your free case consultation.