Each year thousands of patients suffer needless pain and discomfort due to doctor errors. If you’ve been the victim of physician malpractice, promptly seek the counsel of an experienced medical malpractice attorney. It’s virtually impossible to sue a doctor on your own. Malpractice litigation is complex, with some cases taking years to resolve.
Physicians seldom admit to malpractice, to do so would be to admit negligence. A physician with a reputation for committing malpractice will quickly find himself without patients, while losing medical privileges at local hospitals.
Unlike most of us, who have no say in whether our insurance company will settle an accident claim filed against us, physicians have a “consent to settle” clause in their malpractice insurance policies. This gives them the right to refuse to settle a malpractice claim filed against them.
What constitutes physician malpractice?
Malpractice occurs when a doctor’s treatment deviates from the medical standard of care in the local community, resulting in harm to the patient. For legal purposes, the medical standard of care is defined as “the type of care a reasonably competent physician, practicing the same type of medicine [your physician practices], would have provided under the same circumstances.”
The definition is vague and open to interpretation. The medical standard of care in one area of the country may be completely different from the standard in another part. For example, a physician practicing in a remote, rural part of the country may have to deliver babies, perform minor surgery, treat infectious diseases, and more. Access to sophisticated diagnostic tools like CT scans or MRIs may be miles away.
Also, physicians have different opinions about the correct standard of care in their respective fields of practice. It would be impossible for that small town physician to have specialized skills, like those of an obstetrician, neurologist, or oncologist. A small town doctor who makes a medical error may have done the best he or she could with the tools available.
Physicians, like everyone else, aren’t perfect and do make mistakes. Making a mistake, such as prescribing the wrong medication, in itself doesn’t mean the physician committed malpractice. If the mistake is caught in time and no one is injured, then there’s no basis for a malpractice claim.
Malpractice that doesn’t result in serious injury or illness, or unnecessary exacerbation of an existing injury, is malpractice without a legal remedy. To have the basis of a physician malpractice claim, the error must result in more than just an angry patient. If your physician made a mistake and the only injuries you sustained were some anxiety or anger, your recourse may be limited to filing a complaint with your state’s medical board.
While there are many examples of physician malpractice, the following are among the most common:
- Failure to diagnose
- Misdiagnosis of a disease or medical condition
- Failure to provide appropriate treatment
- Unreasonable delay in treating a diagnosed medical condition
- Violation of HIPAA (Health Insurance Portability and Accountability Act)
- Failure to secure informed consent from a patient
Who decides if my doctor committed malpractice?
If your attorney believes you have the basis of a legitimate malpractice claim, he will first file a lawsuit. Malpractice cases aren’t like personal injury cases, where your attorney negotiates your hospital bills, lost wages, and a bit of pain and suffering with a claims adjuster. Medical malpractice cases are almost always litigated.
Your physician’s insurance company will provide him with aggressive defense attorneys. They will hire expert witnesses to testify that your treatment did not deviate from the medical standard of care in your community.
In malpractice cases, expert witnesses are usually physicians with excellent reputations who practice the same type of medicine your physician does. Some of these physicians are no more than highly paid professional witnesses, who, for a sum of money, will agree to testify for one side or the other.
To win, your attorney must also hire expert witnesses to testify on your behalf. They will say the defendant physician did deviate from the medical standard of care in your community, and that deviation constituted negligence, which was the direct and proximate cause of your injury or illness.
Along with your testimony, expert witnesses, your medical records, and other supporting evidence, your attorney will do all she can to convince the jury the defendant physician committed medical malpractice.
In the “battle of the experts,” the courtroom effectively becomes ground zero. To prosecute your case, your attorney will spend a lot of money for pretrial depositions, subpoenas, court reporters, expert witnesses, and more. In these cases, attorneys work on a contingency basis, and pay all expenses out of their own pocket. These expenses are reimbursed if they win the case. If not, they receive nothing.
Is it malpractice?
Let’s break down a couple of examples to more clearly demonstrate the ins and outs of medical malpractice…
Example: Failure to Diagnose Celiac Disease
Sara went to see one of her HMO’s approved gastroenterologists because of stomach cramps, nausea, and fatigue. Initially, the physician told her it was nothing serious, and recommended she purchase some antacids and avoid eating spicy food.
A week later Sara’s symptoms worsened, and she went to see a different gastroenterologist who ordered a colonoscopy. The colonoscopy revealed she suffered from Celiac disease, a progressive disorder where the patient’s intestinal villi are destroyed by food containing gluten. This gastroenterologist prescribed medication, and advised Sara to completely avoid eating foods containing gluten.
Upset over the first gastroenterologist’s failure to order a colonoscopy, Sara decided to file a medical malpractice lawsuit. She was convinced her physician was incompetent, but one attorney after another refused to take her case.
The attorneys admitted the first gastroenterologist deviated from the medical standard of care, and as a result, probably committed malpractice. However, the deviation was not the direct and proximate cause of Sara’s Celiac Disease. She had the disease before she saw the gastroenterologist. The week of needless pain and suffering is probably not worth very much in the eyes of a jury.
Because the damages she suffered were limited to one week of unnecessary pain and suffering, the costs of prosecuting Sara’s case far outweigh the amount of any jury verdict she could expect to receive. As a result, no attorney will accept the case.
Example: Failure to Diagnose Prostate Cancer
Jim is a fifty-year-old male who was experiencing pain in his pelvic area, having occasional erectile dysfunction, and was abnormally fatigued. He made an appointment to see a urologist, who, concerned about his symptoms, referred him to an oncologist.
After spending five minutes examining him, the oncologist told Jim there was no need for alarm. He said Jim’s symptoms were just part of the aging process and suggested he lose some weight, get more rest, and take ibuprofen for the pain. He prescribed Viagra for the erectile problems.
Relying on the oncologist’s diagnosis, Jim went on a diet, slept more, and took ibuprofen for the pain. The Viagra didn’t seem to help. While his symptoms continued, he blamed them on the aging process while relying on the oncologist’s diagnosis. A year later, Jim’s symptoms worsened to a point where he was unable to work, and in constant pain.
He went to see an internist, who ordered a PSA (Prostate Specific Antigen) test. When the results came back they indicated Jim’s antigens per milliliter of blood was eight, double the acceptable level for men in his age range. Alarmed, the internist referred him to another oncologist.
After further testing, Jim learned he was suffering from advanced prostate cancer, which probably began about eighteen months before. If the first physician had diagnosed it at that time, there was a good chance the prostate cancer could have been successfully treated. It would have eliminated the need for aggressive chemotherapy, and its associated pain and discomfort. At this point, there was legitimate concern for Jim’s survival.
Due to the first oncologist’s failure to diagnose Jim’s cancer, he sought the counsel of a medical malpractice attorney. After reviewing Jim’s case, the attorney agreed to represent him. She promptly filed a malpractice lawsuit against the oncologist and hired expert witnesses to help prepare the case.
All the experts were convinced that spending no more than five minutes speaking with Jim, and failing to order a PSA test, deviated from the medical standard of care in the community. They concluded the oncologist’s failure to take appropriate steps to diagnose his prostate cancer was the direct and proximate cause of the cancer unnecessarily spreading through Jim’s body, reaching its present critical stage.
While they agreed the oncologist wasn’t responsible for causing Jim’s cancer, an early diagnosis would have avoided the need for aggressive chemotherapy, and all its associated pain and discomfort.
The case went to trial, and Jim’s attorney put the renowned oncologists on the witness stand. They all testified the defendant oncologist’s failure to properly diagnose was a substantial deviation from the medical standard of care in Jim’s state, and quite likely, in most metropolitan areas in the country. They all agreed the oncologist’s actions and omissions displayed incompetence.
The defendant’s insurance company’s attorneys put up several of their own renowned expert oncologists, who all testified that the PSA is not a medically reliable test for diagnosing prostate cancer. They also testified that the defendant oncologist’s decision not to order a PSA was not the direct and proximate cause of Jim’s cancer.
After deliberating for several hours, the jury returned their verdict. It stated:
As to damages, we find for the plaintiff in the following amounts:
What to do if you’re the victim of medical malpractice…
Gather copies of all your treatment records and medical bills, and receipts for medications, medical aids, etc. You have a legal right to copies of these documents from your treating physicians, hospitals, and other medical providers, including the physician you may be suing.
Seek out experienced medical malpractice attorneys. Most don’t charge a fee for an initial office consultation. Visit with several, until you find one you feel confident will represent your best interests.
How Much is Your Injury Claim Worth?
Find out now with a FREE case review from an attorney…
Visitor Questions on Identifying Physician Malpractice
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Doctor ignoring mistake? I went to have a Bone Spur removed from my heel 11/21/14. My surgeon told me everything went well with my surgery. I was originally told I would be able to return to working my stand up job within 10 days. By the end of December I was still having a lot of pain walking... Read More >>
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Doctor removed my uterus for no reason? I had a prolapsed bladder, which required surgery to repair the muscles that had given out. My gynecologist told me, after an exam and ultra sound, that I had to have a hysterectomy due to having Adenomyosis. My gynecologist told me my uterus was 5 times bigger than it should be. My gyno referred me... Read More >>
Anesthiologist put breathing tube down esophagus instead of windpipe… My husband went in for surgery for removal of kidney stones, which is a two or three part operation. The anesthesiologist put the breathing tube down his esophagus instead of his windpipe. They discovered this after two minutes, when my husband’s oxygen level dropped. They then put it down the correct tube and continued with... Read More >>
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Chiropractor tore my ACL… I was diagnosed last year with a bulging disk by my orthopedic doctor. While receiving treatment for my back I decided to visit a Chiropractor because I heard that they can help with my problem. So I went online and did my research and found what I thought to be a good place to help... Read More >>
Hand fracture set improperly… My wife fell and fractured her right hand between her pinky finger and wrist. She went to an orthopedic doctor who actually rolled her pinky and put a splint on it. After a couple weeks my wife became very uncomfortable and sought a second opinion from another doctor. The second doctor took one look at... Read More >>
Not healing after full shoulder replacement surgery? I had full shoulder replacement (left shoulder) surgery. A few days after surgery I went to see the doctor, and he explained to me what was done. A bone in my shoulder was broken and put back together with 2 screws and glue. The surgeon also had to cut a muscle and stitch it back... Read More >>
Fell out of bed in doctor’s office… After a procedure in the doctor’s office, I was in recovery and fell out of the bed. The safety rail was not lifted as it was supposed to have been and I was left unattended. I have been on disability for 6 months, and under chiropractic care three times a week for two injured lumbar... Read More >>
Staph infection results in partial finger amputation… I had surgery for a finger injury that happened at work. It wasn’t healing correctly and the doctor said to come back in two weeks. He never checked for any infection. At that point, I went to another physician and he diagnosed me with a staph infection. I ended up needing to have part of... Read More >>
Doctors unable to diagnose hernia? I had a c-section in 1994. In 2002 I got in a car accident and had internal bleeding, my liver was lacerated and I got a hematoma. After I got out of the hospital I experienced abdominal pain really bad for years. I went to different doctors, gastro-intestinal and OBGYNs, and they all said the... Read More >>
Nerve in spinal cord torn during lumbar puncture… I had a lumbar puncture (when fluid is taken from the lower back for testing) and the doctor performing the procedure tore a nerve in my spinal cord. Now my left leg goes numb randomly. I have fallen numerous times leading to a broken foot. I’m also now forced to live with chronic pain every... Read More >>
Continued Pain After Multiple Ankle Surgeries… I had a subtalar ankle fusion in July of 2010. I followed all the doctor’s rules but it did not heal at all, making it a non-union. I have no underlying medical condition that would explain why this would happen. I remained in horrible pain and had to stay on pain pills, which I wasn’t... Read More >>
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Botched Knee Surgery Malpractice? In November of 2011 I fell and injured my knee. I went to an orthopedic doctor and he said he thought my patellar tendon was torn. He wanted me to have surgery the next morning. I felt as if the surgery was rushed and asked about testing first, but he said it was not necessary.... Read More >>
Complications from Multiple Shoulder Surgeries… I was referred to an orthopedic surgeon for my right shoulder. I had an old A/C separation injury but currently I had a chipped bone in my right shoulder. He recommended surgery to take the fragment of bone out and fix my A/C separation by attaching a donated tendon to my clavicle bone. This surgery... Read More >>
Is this grounds for a physician neglect lawsuit? I was in to see my physician on January 16, 2011. This was my first time there. He had blood drawn and did a quick exam. He noted the pitting edema in my legs and feet but did not give me any medicine, he only had them make me another appointment for 30 days later!... Read More >>
Concussion from Falling and Hitting My Head at the Doctor’s Office… While at Dr’s office I was light headed and dizzy. The Dr had me lie down, feet up, and gave me glucose to help with the light headedness. The nurse came in a few minutes later to give me an injection to help with the nausea from the light headedness. She had me stand up... Read More >>