Medical Compensation - Part of a System of Checks & Balances

A common leading cause of death in the United States is medical malpractice. Each year there is up to 100,000 deaths in the U.S. because of medical mishaps that could have been prevented. If proper safety measures had been taken, the injuries these people suffered could have been avoided. Of these numbers no more than 15% of patients or their loved ones know that they are entitled to some compensation.

Compensation: Part of a System of Checks & Balances

An important part of the system of checks and balances in the legal structure of America is to give back to the people for having suffered an injury that could have been prevented. In cases where there may have been neglect on the medical staff's part, the injured party is compensated for losses they have suffered and the people responsible must be liable for their neglect. With any luck, having the medical professionals be held accountable will prevent them and others from any medical mishaps in the future.

What This Means for You

If you or a family member has been injured due to medical malpractice, you may be able to be compensated for losses suffered such as costs for treatments, or lose of employment. The injured person is also entitled to compensation for other losses such as emotional sorrow, any distress they had to bear, or any other costs paid because of the negligence.

When to Contact a Malpractice Lawyer

If you suspect that you or someone you know has been a victim of medical malpractice, get in touch with a medical lawyer right away because there are time restrictions for these kinds of cases. If you have been misdiagnosed, there was an injury during a surgery or the lab results were wrong, call a lawyer and they will evaluate your case. There are other cases of medical malpractice so make sure you have a lawyer assist you because they know your rights.

Talk to an Attorney about Medical Compensation

There are lawyers that are committed in helping people who have been a victim of medical negligence and want to help you get the support you deserve. Victims and their families have been given settlements for the losses they have encountered due to medical malpractice. There are also resources they can provide for some support.

David Austin is an Attorney focused on complex injury cases. You can learn more about Medical Compensation at his website. Burke-Eisner.com

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Attorney's Guide to Medical Malpractice For South Carolina (SC) Lawyers and Plaintiffs

Medical and health care providers - primarily hospitals, surgeons, doctors, pharmacists, physicians, nurses and emergency medical technicians ("EMTs") -- are expected to offer us care and support during our most critical moments. The vast majority of medical and health care providers do offer excellent care that will help us to recover from a personal injury or medical condition. However, some providers fail to meet the requisite standard of care, and, under such circumstances, may be guilty of medical malpractice.

COMMON TYPES OF MEDICAL MALPRACTICE

Medical malpractice, commonly called "medmal" for short, generally occurs when a negligent, careless or reckless act, mistake, error, or omission by a doctor or other medical professional causes damage or harm to a patient. It has been estimated that almost 98,000 people die in hospitals in the United States each year, and that medication errors injure approximately 1.3 million people per year. Medical malpractice errors or negligence typically occur in the diagnosis or treatment of a patient, and may include, but are not limited to:

>Failure to treat
>Wrong treatment
>Delay in diagnosis
>Failure to diagnose
>Failure to rule out causes or conditions
>Misdiagnosis
>Failure to test
>Failure to obtain informed consent
>Surgical injury
>Wrong prescription of drugs
>Patient abandonment
>Use of defective medical products

A patient's right to recover compensation for medical malpractice is generally governed by common law as well as statutes and regulations which have been promulgated to protect patients who have been subjected to medical malpractice or medical negligence. Medical malpractice suits are usually complex, time-consuming, expensive to litigate, dependent upon expert testimony, and vigorously defended by health care providers and their insurers.

ELEMENTS OF A MEDICAL MALPRACTICE OR MEDICAL NEGLIGENCE CLAIM

The medical malpractice personal injury victim is commonly referenced as a "plaintiff" and the person or entity that caused the harm is commonly referenced as a "defendant." The South Carolina Supreme Court has set forth the elements of negligence with regard to a medical malpractice personal injury claim that a plaintiff has to prove as follows:

>A physician-patient relationship exists
>The generally recognized and accepted practices and procedures that would be followed by average, competent practitioners in the defendants' field of medicine under the same or similar circumstances >That the defendant departed from the recognized and generally accepted standards
>The defendant's departure from such generally recognized practices and procedures was the proximate cause of the plaintiff's alleged injuries and damages

Thus, the medical malpractice lawyer and his client must present evidence to meet each of the foregoing elements at trial.

A physician commits malpractice by not exercising that degree of skill and learning that is ordinarily possessed and exercised by members of the profession in good standing acting in the same or similar circumstances. Durham v. Vinson, 360 S.C. 639 (2004). A plaintiff and his attorney must proffer expert testimony to prove both the required standard of care and the defendant's failure to conform to that standard, unless the subject matter lies within the ambit of common knowledge so that no special learning is required to evaluate the conduct of the defendants.

INFORMED CONSENT CLAIM

A physician's failure to obtain a patient's "informed consent" with regard to a procedure or treatment is a form of medical malpractice. The term "informed consent" means that a physician must tell a patient all of the potential benefits, risks, and alternatives involved in any surgical procedure, diagnostic procedure, medical procedure, therapeutic procedure, or other course of treatment, and must obtain the patient's written consent to proceed. Under Informed consent law, a physician who performs a diagnostic, therapeutic, or surgical procedure has a duty to disclose to a patient of sound mind, in the absence of an emergency that warrants immediate medical treatment, (1) the diagnosis, (2) the general nature of the contemplated procedure, (3) the material risks involved in the procedure, (4) the probability of success associated with the procedure, (5) the prognosis if the procedure is not out, and (6) the existence of any alternatives to the procedure. Thus, the plaintiff and his lawyer must present evidence of the physician's breach of the foregoing elements of an informed consent claim in order to prevail at trial.

BREACH OF CONTRACT OR WARRANTY CLAIM

While most health care providers will not guarantee or warrant a particular outcome, there are times when they do, and a failure to successfully provide the outcome may give rise to a breach of contract or breach of warranty claim. These type cases usually involve plastic surgery wherein the patient is told that his or her post-surgery physical appearance will be the same as demonstrated on a computerized enhancement of the patient's photograph. Thus, much like a business breach of contract claim, the plaintiff and his lawyer must present evidence of the physician's breach of the stated warranty or guarantee by the preponderance of evidence in order to prevail at trial.

COMPENSATION IN MEDICAL MALPRACTICE CASES

In a medical malpractice personal injury lawsuit, a victim seeks compensation for the injury or injuries he or she has suffered. Compensation can include past and future medical expenses, disability or deformity, loss of income, emotional and mental anguish, loss of a spouse's comfort and society, past and future pain and suffering, and an amount which would be necessary to make the person whole as respects a permanent personal injury. McNeil v. United States, 519 F.Supp. 283 (D.S.C. 1981). In cases where the defendant acted recklessly, maliciously or willfully, punitive damages may also be awarded. Punitive damages in medical malpractice lawsuits are intended to punish the responsible party and deter others from committing the same acts. Gamble v. Stevenson, 305 S.C. 104, 406 S.E.2d 350 (1991). If a wrongful death results from the medical malpractice, the decedent's beneficiaries are entitled to compensation.

CAPS ON MEDICAL MALPRACTICE DAMAGES

For medical malpractice cases arising on or after July 1, 2005, which placed caps on non-economic damages a patient could recover from a liable defendant health care provider. S.C. Code § 15-32-220(a) limits the civil liability for non-economic damages of the health care provider to an amount not to exceed $350,000 for each claimant regardless of the number of separate causes of action on which the claim is based. S.C. Code § 15-32-220(a) provides an exception to the foregoing cap where the health care provider is proven to be grossly negligent, willful, wanton or reckless and that conduct was the proximate cause of the claimant's non-economic damages. S.C. Code 15-32-220(b) provides that the $350,000 cap is limited to each claimant. S.C. Code 15-32-220(c) allows a claimant to stack his claim, and provides that up to three health care providers may be subject to the $350,000 cap per claimant, for a total of $1,050,000 per claimant.

The non-economic damage cap of $350,000 per medical entity or practice or person does not apply to economic damages and does not apply to punitive damages. Effective for medical malpractice cases arising on or after July 1, 2005, S.C. Code 15-32-230 further limits liability with regard to emergency obstetrical or emergency department situations. This section eliminates liability on behalf of any person providing emergency care or emergency obstetrical care to a person in immediate threat of death or an immediate threat of serious bodily injury while in an emergency room, obstetrical or surgical suite, unless the health care provider is proven to be grossly negligent. Other caps or limitations may be applicable to a medical malpractice case as well.

STATUTE OF LIMITATIONS

The plaintiff's attorney must timely bring a medical malpractice suit within the required timeframes. There are time limits on bringing a personal injury lawsuit in the state of South Carolina known as statutes of limitations. See S.C. Code 15-3-530(5); 15-3-535. While a medical malpractice personal injury suit is generally subject to a three year statute of limitations, there may be exceptions depending on the circumstances, such as a medical malpractice case where the negligent conduct may be covered by a concept known as the "discovery rule." See S.C. Code 15-3-545; Wilson v. Shannon, 299 S.C. 512, 386 S.E.2d 257 (Ct. App. 1989).

The statutes of limitations are different for negligence suits against a South Carolina state government agency pursuant to the South Carolina Tort Claims Act ("TCA") and the federal government pursuant to the Federal Tort Claims Act ("FTCA"). Under the TCA, a suit must generally be filed within two years, unless a verified claim is filed within a year of the injury, then the statute of limitations is three years. S.C. Code § 15-78-110. Under the FTCA, an administrative tort claim must generally be presented to the subject federal agency within two years. Once a timely administrative tort claim has been filed, there is no statute of limitations on bringing a suit unless the federal agency denies the claim, in which case a suit must be brought in federal court within six months after the denial. 28 U.S.C. 1346(b), 1402, 2401, 2675.

NECESSITY OF AN EXPERT

South Carolina Code 15-79-125 requires, on medical malpractice cases arising on or after July 1, 2005, that before a medical malpractice suit can be filed, a plaintiff has to simultaneously file both a notice of intent to file suit and an affidavit of an expert witness subject to the affidavit requirements established in 15-36-100 in a county in which venue would be proper for filing or initiating the action. Statutory mediation of any such medical malpractice case is required as well, and, there are time limits for filing suit should the attempted mediation fail. As noted above, an expert's testimony is necessary at trial to prove a breach of the standard of care and proximate cause of the injury, and the medical malpractice lawyer should retain a medical expert early on to assess the case and to be prepared to testify at trial.

Medical malpractice suits in South Carolina are difficult to pursue. Before undertaking a med-mal suit, the injured client would be well advised to consult with a lawyer with medical malpractice experience.

Joseph P. Griffith, Jr.
SC Medical Malpractice Lawyer
SC Medical Negligence Attorney
Joe Griffith Law Firm, LLC
7 State Street
Charleston, South Carolina 29401
(843) 225-5563 (tel)
(843) 722-6254 (fax)
http://www.joegriffith.com

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What is a Medical Malpractice Claim?

The term "medical malpractice" is heard quite a lot. It means something different to a medical malpractice lawyer than it does to most people who are not familiar what malpractice truly is. Malpractice doesn't mean that a medical professional was rude or that you just weren't happy with their care. Malpractice means that, in one regard or another, they violated your trust in them as a doctor or, through incompetency or inaction, caused you harm that could have been avoided with adequate care. The cases that malpractice law firms address are sometimes enough to send a shudder up anyone's backbone.

Your doctor serves a purpose in your life that no other person can take. They know your most secret medical information and you trust them to save your life, even if that means some of the treatments could possibly take you within an inch of it. When you visit a doctor, you have every right to expect that they will do their best to take care of your problems and to examine you for adverse health conditions. When they don't, the results can be life-changing and, in some cases, deadly. Not conducting exhaustive medical details is one type of malpractice.

Failure to diagnose a patient's condition may constitute malpractice. If it can be proven that the doctor was being incompetent, sloppy or just did not care enough to do their job right, you probably have a right to collect financial compensation for their dangerous treatment. It takes an attorney, however, to understand if you have a valid case. Because these issues are so personal, it's sometimes easy to think someone is guilty of malpractice when they've simply given you a poor prognosis or when their care was unsatisfactory compared to your expectations. Medical malpractice claims involve cases that are not undertaken based on personal reasons; they are brought because a patient suffered unnecessarily.

A medical malpractice claim, for example, oftentimes involves the results of inattention during surgery. These are the fairly infamous cases where someone has a surgical tool left in their body or when a surgery was performed on the wrong body part. Some patients have even had the wrong surgeries performed completely due to infirmary negligence. Be sure that you seek representation if this happens to you. Physicians are held to very high standards for a reason and, when they don't live up to those standards, their patients should not be the ones who pay the price. A qualified lawyer may be able to help.

Rasansky Law Firm is an award winning personal injury law firm based in Dallas, TX. If you feel that you need the help of an experienced attorney, contact Rasansky Law Firm today. Visit http://www.jrlawfirm.com or call 1-800-ATTORNEY for a free, no obligation case evaluation. The time to act is NOW!

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Medical Malpractice and the Law

Medical malpractice cases can be big news, but these cases run the gamut from minor injuries to permanent injuries to death. What is medical malpractice? It's a mistake, often called medical negligence, made by a doctor, nurse, or other medical professional that results in a patient's injury. Doctors and medical facilities maintain malpractice insurance policies to pay for these mistakes, and patients can file lawsuits against the doctor and medical facility or hospital to receive money for the injuries.

The most obvious type of medical malpractice is a mistake made during surgery. This famously happened to comedian and former Saturday Night Live star, Dana Carvey. He had a blocked artery to his heart, but the surgeon ended up operating on the wrong artery. This meant that Carvey had to undergo a second surgery. In this high profile medical malpractice case, Carvey was awarded $7.5 million.

Other surgical mistakes could lead to infection, paralysis, accidentally cutting a vital organ, or leaving a foreign object inside the patient's body. Surgical mistakes are only one type of medical malpractice, however. These cases can involve any number of mistakes, such as:

Misdiagnosis - A doctor may inaccurately determine that a patient has one condition or disease when it is later discovered that the patient had a different condition or disease. If the real disease goes untreated, it can lead to injury or death. A misdiagnosis may also lead the doctor to prescribe the wrong medications or unnecessary surgery, which can cause injury to the patient.

Delayed diagnosis - In this case, the physician fails to determine that the patient has a serious illness such as cancer or heart disease. Obviously, if the person isn't treated because the doctor failed to recognize the illness, it could lead to injury or death. A delay can also occur if someone is forced to wait in an emergency room for too long, for example.

Anesthesia Mistakes - Anesthesiologists are responsible for the medication that causes a patient to sleep during a medical procedure. Since people can be sensitive to these medications, it's the responsibility of the anesthesiologist to review a patient's medical history to try to ensure that the anesthesia medication won't cause problems. If it does, the anesthesiologist and medical facility may be sued for the patient's injuries.

Prescriptions - Before prescribing medications, a doctor needs to know all other medications that a patient may be taking because it can be dangerous to mix them. It can also be dangerous to take some medications if the patient has a specific disease. For example, a particular heart medication may be dangerous for someone with Parkinson's Disease.

Childbirth - If medical personnel make mistakes during childbirth, the result can be death or permanent disabilities, such as brain damage in the baby.

Of course, these are just a few of the more common forms of medical malpractice. Dental malpractice and all sorts of other possibilities exist in the medical field.

What to Do If You Have Been Injured by Medical Malpractice

If you believe that you or a loved one has been injured by medical malpractice, the first thing you need to do is consult a lawyer. These kinds of cases can be very complicated, so it's absolutely necessary to have an experienced attorney working on your behalf.

Why are these cases so complicated? It can often be difficult to prove that the medical professionals acted negligently. All medical records have to be carefully examined to determine if malpractice really did take place. Did the doctor not perform his or her duties up to the standards expected of the profession? This can be likened to a driver who runs a red light or doesn't stop for a stop light.

It is also important to note that each state has what is called a "statute of limitations" on medical malpractice claims. So, you need to act quickly if you believe malpractice has taken place because after a period of time, you will no longer be allowed to file a lawsuit.

Most lawyers who work on medical malpractice cases don't require you to pay them a fee up front. They work on what is called a "contingency" basis, which means that they take a percentage of the total settlement you receive when the case is finished. The lawyer takes a certain risk here, so it's to the lawyer's advantage to only take cases that are likely to lead to a settlement that will be higher than the costs of the lawsuit. This means, first and foremost, that there must be what is called "causation."

Causation means that it must be provable that the injury occurred as a direct result of the medical professional's negligence. Most of the lawyers who handle medical malpractice cases have medical investigators to help them develop the evidence to prove that you or your loved one was indeed a victim of malpractice.

It's also to the lawyer's advantage to try to get you as much money as possible and to try to keep your case from going to court. This means that the lawyer will negotiate on your behalf with the lawyer for the malpractice insurance company, working to obtain a settlement for you. Experienced medical malpractice attorneys know what settlement amounts are reasonable to expect for different kinds of cases.

How long do medical malpractice lawsuits take to settle? This varies greatly and depends on a number of factors. The more complex the issues involved, of course, the longer it will probably take before a settlement will be reached.

The most important reason for filing a medical malpractice lawsuit is to receive the money you need for medical care related to the injury. If the injury is permanent, such as in the case of cerebral palsy or paralysis, the costs can be enormous and will last a lifetime. The injured person or the caretaker of the injured person may not be able to work for a period of time, so there may also be a loss of income - before the settlement and perhaps also in the future.

In addition, there may be money awarded for what is called "pain and suffering" and for "loss of consortium," which refers to a loss of benefits by the injured person's husband or wife. Punitive damages are also sometimes awarded, which is punishment when the negligence is extreme. Monies in the settlement that are for non-economic damages, such as pain and suffering, punitive damages, and loss of consortium, are restricted in some U.S. states.

Another reason for filing a medical malpractice suit, however, is to make sure that the medical professional isn't negligent with other patients. This doesn't mean that the doctor will be forced to stop practicing medicine, however. In most cases, the malpractice is considered to be an honest mistake. The negligence must be extreme for a doctor to lose his or her medical license, and the health department is the agency that must make that decision.

For information on medical malpractice lawyers & attorneys, visit the Philadelphia law firm website FeldmanShepherd.com.

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