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19: Medical Malpractice

1) What conditions define medical malpractice? i.e., what qualifies as medical malpractice?

2) What is “informed consent” for purposes of medical treatment? Did I waive my right to recover for a medical malpractice lawsuit when I signed the consent form?

3) Can I recover damages for malpractice from a professional corporation?

1)   What conditions define medical malpractice? i.e., what qualifies as medical malpractice?

Medical malpractice occurs when a patient is injured due to the doctor’s negligence. The concept of negligence is often defined in comparison to the standard care procedure a competent doctor would have provided under the same situation.  When determining whether the injury is a result of medical malpractice, ask yourself this question: could a competent doctor, under the same circumstance, have caused the same harm?

2) What is “informed consent” for purposes of medical treatment? Did I waive my right to recover for a medical malpractice lawsuit when I signed the consent form?

“Informed consent” is an agreement to a particular medical procedure based on receiving clear information on the risks and benefits of receiving the proposed treatment. It is also the doctor’s duty to explain to the patient the nature of the problem and all the possible treatment, and the risks and benefits of receiving no treatment at all.

The consent is usually signed before an invasive treatment. However, there are two exceptions where there is no need for the consent to be signed before any treatment.

1) Simple and common exception where the risks from procedures are commonly understood to be very low.

2) Emergency exception when the condition is life-threatening and requires immediate treatment.

The consent form does not waive the client’s right to bring a medical malpractice claim, nor does it free the doctor from any liability, if the client can establish that the injury is the result of unreasonable negligence, which is defined to be the deviation from the applicable standard of care in performing the procedure. Basically, this form gives the patient’s the right to understand what is going to happen to their bodies but it does not free the physicians from liability of their responsibility.

3)   Can I recover damages for malpractice from a professional corporation?

Yes. The corporation would be liable, and in some cases the professionals would be personally liable for their malpractice. The corporation does not shield the person from responsibility.

This section researched & edited by Wang Wan

General Legal Procedure

Medical malpractice law is a highly technical, specialized field. You will find that some medical malpractice attorneys primarily handle birth trauma cases, while others handle surgical errors, and others handle misdiagnosis of cancer, or some other narrow area of medical negligence. If your case is very technical, you should seek an appropriately specialized lawyer.

Most medical malpractice attorneys take their cases on a “contingency” basis, where the attorney fee is a percentage of the amount recovered from the defendant through judgment or settlement (usually 1/3 of the judgment, after costs and fees are deducted). It is unusual for attorneys to take malpractice cases on a “retained” basis, where the client pays the attorney fees and costs but receives the entire judgment or settlement, as few clients can afford that option. In many malpractice cases, by the time a case reaches trial, costs alone can exceed $100,000.00.

Medical malpractice cases are expensive and difficult, and attorneys choose their battles very carefully. Don’t feel hurt if an attorney refuses your case, and don’t be bashful about requesting a referral to another attorney for a “second opinion.”

When you initiate medical malpractice litigation, you should be aware that it can be a very long, difficult process. You may find yourself answering very personal questions, including in response to “interrogatories” (written questions) and at “depositions” (live testimony, taken under oath, often at an attorney’s office), and spending a surprising amount of time assisting your attorney with your case. While some cases are resolved quickly, it may be months or years before your case is resolved.

http://www.expertlaw.com/library/malpractice/malpractice.html