When hospitals fail in their duty to protect their patients, the results can be devastating. Hospital errors are responsible for thousands of unnecessary patient injuries and deaths each year. According to the Center for Disease Control (CDC), in America alone, hospital-acquired illnesses account for an estimated 1.7 million infections and 99,000 associated deaths each year.
Common hospital errors include:
- Inaccurate record keeping, leading to patient mismanagement
- Incorrect dosing of medications
- Failing to monitor patients
- Poor employee hygiene
- Employee abuse of patients
- Failing to properly disinfect rooms, instruments and diagnostic tools
When hospital error results in harm to a patient, the hospital becomes responsible, or liable, for any damages sustained by the patient. Damages can include past, present, and future medical bills, out-of-pocket expenses for medications, nursing care, etc., the patient’s lost wages, and compensation for pain and suffering.
In extreme cases of “intentional infliction of bodily harm, or a wonton disregard for the safety and well-being of the patient,” a jury may award punitive damages. A patient’s family members are generally not entitled to compensation for pain and suffering they sustain on behalf of the patient.
Hospitals may be responsible for the negligence of their employees and associates. Hospital liability is generally divided into three categories:
1) Hospital liability for employees
Employees are defined as people who work part-time or full-time for the hospital, on hospital premises, and are paid directly by the hospital (or its corporate owner). Examples of part-time and full-time employees are doctors on staff, nurses, administrators, janitors, cafeteria workers, and security guards.
2) Hospital liability for associates
Associates are defined as people who provide a service to patients on hospital premises, but who are employed and paid by a private company. Many private doctors have privileges to treat patients, perform surgery, administer diagnostics tests, etc. on hospital premises, but are not technically employed by the hospital itself (see below).
Other examples include paramedics, private janitorial and maintenance companies, and others who are employed by an independent source but provide a direct service to the hospital.
3) Hospital liability for its own errors
Some hospital errors are made by employees charged with administration and policy. Administrative staff can range from the chief executive officer, to the admitting staff at the front desk or emergency room, and all mid-level managers in between.
Hospital Errors and Medical Malpractice
An injury or wrongful death due to hospital negligence is referred to as medical malpractice. To pursue a medical malpractice claim against the hospital, you will first have to meet a “burden of proof.” This burden includes five legal elements:
- The hospital had a duty of care to protect you from undue harm, injury or death.
- The hospital deviated from, or “breached,” that duty of care.
- As a result of the deviation, you were unduly harmed.
- The deviation was, in and of itself, the direct and proximate cause of the harm.
- The harm resulted in a compensable loss (i.e. additional medical bills, out-of-pocket expenses, lost wages, and pain and suffering).
Common forms of hospital malpractice
Hospital medical malpractice comes in many forms. The following are actual examples of hospital errors which resulted in malpractice lawsuits filed by patients:
- A hospital failed to properly disinfect a hospital room, and as a result, a patient contracted a staph infection.
- The nursing staff continually gave a patient the wrong dosage of medication, resulting in an aggravation of the patient’s illness.
- A hospital failed to conduct a background check of a nurse with a criminal history, and that nurse physically abused an elderly patient.
- Emergency room admitting staff failed to heed the warning signs of a heart attack (chest pain, dizziness and nausea), which, according to medical protocol, requires the patient to be immediately admitted. The patient waited for over an hour and suffered a massive heart attack and died.
- A hospital failed to take corrective measures against a doctor who performed surgery while under the influence of drugs, despite complaints from the medical staff. One day, he severed a patient’s artery during a hysterectomy.
- While transferring a patient from his home to the hospital, the paramedics ignored a doctor’s order to administer blood pressure medication. As a direct result, the patient suffered a stroke.
Dual Liability for Hospital Errors
Hospitals aren’t automatically liable for every doctor who commits malpractice on hospital property. But a hospital is liable for the malpractice of a doctor who works directly for the hospital.
In a medical malpractice claim, if the person responsible was a doctor who worked directly for the hospital, the hospital will normally be liable – as long as the doctor was acting within the scope of his employment. The hospital is considered to be a direct extension of the employee-doctor, and is liable for the actions of that doctor.
It’s somewhat different when a doctor has his or her own private practice and makes income from that practice, not directly from the hospital. “Hospital privileges,” essential to any doctor’s success, means a doctor isn’t technically employed by the hospital, but is instead granted permission to treat patients on hospital premises.
A doctor must first be evaluated by hospital administrators and then granted hospital privileges. When a private practice doctor with hospital privileges commits medical malpractice, and that malpractice can be blamed on the hospital, dual liability exists with the doctor and the hospital. When a private practice doctor commits malpractice and it cannot be blamed on the hospital, the hospital will not be liable.
Example: Botched kidney surgery
A private practice doctor with hospital privileges mistakenly removed the wrong kidney from a patient. The patient sued the doctor and the hospital, claiming both were negligent. Evidence at trial showed the doctor had worked for ten years at the hospital and had a clean record for quality patient care.
Before surgery, the hospital provided the doctor with all the appropriate medical information required to remove the patient’s kidney, but the doctor still removed the wrong kidney.
The court dismissed the malpractice suit against the hospital, because the patient was unable to show the hospital was in any way negligent. The jury found against the doctor alone, and awarded the patient two million dollars in damages.
Example: Reckless anesthesiologist
A private practice anesthesiologist with hospital privileges had a reputation among fellow doctors and nurses for working while on prescription pain killers. The doctor’s behavior was reported to hospital administrators, but because no patients had complained, the hospital took no corrective action.
Unfortunately, while under the influence, the anesthesiologist over anesthetized a patient, who went into cardiac arrest and died.
In this case, the court found there was dual liability. The court said while the doctor’s actions were disgraceful, the hospital’s failure to intervene was akin to medical malpractice on the highest level. The jury awarded the family of the patient three million dollars from the doctor, and an additional five million dollars from the hospital for what they called the hospital’s “duplicitous complicity.”
This same dual liability can apply to a private paramedic company, a private maintenance company, or other separate company whose negligence causes injury to a patient. Liability may transfer to the hospital because of the hospital’s own negligence in managing the private company.
What to do if you’re injured due to hospital error…
Medical malpractice cases should always be handled by an attorney. A med mal case is different from a dispute with the hospital over a billing or insurance issue. Hospitals rarely settle malpractice claims. According to the American Bar Association, “over ninety percent of all medical malpractice claims begin as lawsuits,” which means there’s over a 90 percent chance you will need to file a formal lawsuit.
Pursuing a malpractice lawsuit against a hospital is a very complex procedure. It requires patience and legal expertise. Successful malpractice attorneys often know just as much about medical terminology and procedures as hospitals and doctors.
These cases are also very expensive. Subpoenas must be issued, depositions taken, medical experts hired, and more. It’s not unusual for an attorney to spend tens of thousands of dollars preparing for a lawsuit. Most malpractice attorneys work on a contingency fee basis, meaning they pay for all these expenses out of their own pockets. If they don’t settle the case or win at trial, all that money will have been wasted.
Medical malpractice lawsuits often take years before they finally get to trial. Pretrial hearings, delay tactics by hospital attorneys, overcrowded court dockets, and more can make the process seemingly take forever, requiring lots of patience.
Most medical malpractice attorneys won’t charge for an initial office consultation. It’s a good idea to visit with several law firms. Having several legal opinions will give you a better idea of the strength of your case, and which attorney you will feel most comfortable with.
Under HIPAA laws (Health Insurance Portability and Accountability Act), you have a right to copies of all your medical records within a reasonable amount of time. Make sure to get all of your records, beginning with your hospital admission, through to your discharge, and everything in between. Bring these records to your initial meetings with the attorneys.
If your malpractice claim is against a private doctor, get copies of all your medical records from him as well. If your claim involves a private company, such as a private paramedic or hospital maintenance company, your attorney will have to issue subpoenas for those records.
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