According to the Journal of the American Medical Association (JAMA), more than 225,000 people die each year from medical malpractice. Approximately 100,000 of these deaths occur in hospital settings. To compensate family members for the loss of their loved ones due to medical malpractice, each state has passed its own form of wrongful death statute.
These statutes apply to deaths occurring inside and outside hospital settings. They permit family members and the decedent’s estate to recover losses, called “damages,” associated with the death of their loved one.
Damages in medical and hospital deaths normally include the decedent’s medical bills, out-of-pocket expenses for medications, tests, etc., funeral expenses, and other costs attributed to the decedent’s care and untimely death. They can also include the family members’ emotional losses, including loss of companionship and guidance, the decedent’s lost future income, and the decedent’s pain and suffering prior to death.
What is medical malpractice?
When a physician or other healthcare provider’s treatment of a patient deviates from the established standard of medical care and a patient unnecessarily suffers or dies, it’s considered medical malpractice. The “standard of medical care” is defined as:
…the type and level of care that a reasonably competent healthcare professional in the same field, with similar training would have provided in the same situation.”
The testimony of physicians and other healthcare providers (experts in the medical field relating to the specific instance of malpractice) determines the standard of care in hospital death cases. Unfortunately, there are thousands of experts out there, all available for a price.
In malpractice, the standard of medical care is a fluid term. What may be medical malpractice in one setting may not be in another. The definition can vary from state to state, city to city, town to town, and even from hospital to hospital. A lot depends on the local physicians’ level of training, available testing and examination devices, accessibility to the latest medical technology, number of physicians available to provide treatment, and other similar factors.
Common forms of medical malpractice deaths include:
Infections from unsanitary hospital conditions
These infections can stem from a hospital staff member who touches the patient’s catheter, IV, or other device that’s a conduit into the patient’s bloodstream. Some consider hospital deaths from infection as “silent killers” because family members often never find out their loved one’s death was avoidable, and only occurred because of an infection contracted while in the hospital.
Misdiagnosis of disease
Misdiagnosis is a common medical error responsible for thousands of deaths each year. A misdiagnosis happens when a physician fails to identify the underlying medical condition(s) of the patient. A doctor can overlook valuable diagnostic tests and lose critical time to treat the patient properly, leading to the patient’s unnecessary and untimely death.
Anesthesia errors are often the result of poor communication between surgeons, nurses, and the patient himself. Failure to take into account the patient’s height, age, weight, and current medications are also factors. Too little anesthesia and the patient unnecessarily suffers. Too much anesthesia, combined with other factors, and the patient can die.
Surgery demands the highest skills in a physician. When a physician’s training is inadequate, or the physician fails to follow proper surgical protocol, the patient can be unnecessarily hurt. Surgical mistakes can result in patient paralysis, severed nerves and arteries, punctured lungs, surgical tools left inside patient’s bodies, and in severe cases, the patient’s death.
Wrongful Death and Survivor Claims
There are two types of legal remedies available to family members who allege medical malpractice caused a patient’s death. The family can pursue these remedies separately or together in the same lawsuit. The first is a claim for wrongful death, and the second is a claim for survivors’ benefits.
Wrongful death action
In the wrongful death part of the lawsuit, the decedent’s family claims the following:
- The decedent died because of a specific form of medical negligence.
- The decedent died leaving loved family members.
- The family members suffered pecuniary (monetary) and emotional losses.
In the survivors’ action part of the lawsuit, the administrator or executor* of the decedent’s estate claims the following:
- The decedent died from a specific form of medical negligence.
- As a result of the medical negligence, the decedent unnecessarily suffered before he died.
- Had he lived, the decedent would have sued the medical provider for medical malpractice.
- Had he lived, the decedent would have earned future income, which is now lost.
- Because of his death, the decedent lost the future love and companionship of his family members.
In a survivors’ action, because the decedent can’t actually receive the compensation for the medical malpractice, the administrator or executor asks the court to order the negligent medical provider to pay the decedent’s estate. In a case like this, the beneficiaries of the decedent’s estate named in his will would receive the compensation.
If the decedent died without a will (called “intestate”), the state’s probate intestacy laws come into play. In this case, the estate’s legal beneficiaries are those family members named under the state’s intestacy laws.
Sometimes the family members bringing the wrongful death action aren’t in the decedent’s will, or aren’t considered beneficiaries under the state’s intestacy laws. In that case, they can only receive compensation under the wrongful death portion of the lawsuit and not under the survivors’ action.
Those family members who are part of the wrongful death action and also beneficiaries in the decedent’s will may receive compensation twice. Once under the wrongful death action, and again under the survivors’ action.
Lawsuits & Defense Attorneys
To pursue a wrongful death and survivor action requires the advice and counsel of a qualified personal injury attorney with extensive experience in medical malpractice cases. It’s foolish to attempt to handle a case like this on your own. There’s just too much at stake.
To begin with, the physician or hospital responsible for the death of your loved one isn’t going to admit they committed malpractice and settle the case. To do this would severly damage their reputations and signal others to file insurance claims against them. All they have is their reputation. They won’t simply give it up without a fight.
Physicians and hospitals pay hundreds of millions of dollars each year in malpractice insurance premiums. In return, when someone files a lawsuit against them, the insurance companies make sure they immediately provide the highest caliber defense attorneys available. Within hours of their insured being accused of medical malpractice, an insurance company retains a fleet of high-powered attorneys.
These attorneys are ferocious. Most have a “take no prisoners” mentality. Insurance companies hire these defense attorneys because of their reputation for winning. The better their track record, the more chance insurance companies will hire them again.
One of your first concerns as the loved one of a patient who died because of medical malpractice is the statute of limitations period. Each state sets its own time period to file a wrongful death/survivors’ action. If you miss that period even by a day, you’ll lose your rights to a claim for medical malpractice.
Most plaintiffs’ attorneys won’t charge any fee for an initial office visit. They only receive their fees if they win your case in trial or settle it after filing a lawsuit. It’s a good idea to talk to several attorneys before deciding on one you think will best serve your interests. You want to feel comfortable with the attorney you choose.
It may take months, or even years before a wrongful death case is resolved. During that time, you want to feel comfortable knowing you can pick up the phone and speak with your attorney, and not be patronized by a paralegal or secretary. You also have to be realistic. If you retained an experienced and successful attorney, he or she will have many other cases going at the same time. It may take a day or two for the attorney to get back to you.
Once you settle on an attorney and sign a retainer agreement, your attorney will promptly file a lawsuit. Filing a lawsuit first is standard practice. By filing suit, your attorney can take advantage of the vast array of pretrial discovery techniques provided under the law.
Pretrial discovery includes taking physicians’, nurses’, and hospital administrators’ depositions (recorded, sworn statements), subpoenaing medical records, and conducting additional extensive investigation meant to uncover the basis of the medical malpractice. Your attorney will leave no stone unturned.
Most malpractice attorneys are highly trained in the field of medicine. To be effective, they stay current with the latest in medical treatments and technologies. They study recent court decisions in medical malpractice lawsuits, attend continuing legal education courses, maintain professional relationships with physicians and hospital administrators, and more.
Blatant malpractice cases like physicians leaving sponges or surgical instruments inside the patient are rare. Thousands of less dramatic claims of malpractice dwarf those higher profile cases. Attorneys fight the great majority of medical malpractice claims in hardnosed pretrial confrontations and during the trial itself.
Although physicians and hospitals dislike settling malpractice claims, often after months or years of pretrial discovery, both sides settle cases at the eleventh hour “on the courtroom steps.”
Anesthesia Wrongful Death Case Appealing a Previous Award
In this appeal case, the defendant thought the original jury award was excessive and is asking to the have the initial award of punitive damages reduced.
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