Medical Malpractice

What is the definition of medical malpractice?

Are all bad outcomes malpractice?

How can an attorney help?

In what settings can malpractice occur?

What are some causes of medical malpractice?

• Surgical or Anesthesia Error
• Improper Use of Medical Equipment
• Medication Error
• Delayed or Missed Diagnosis

What are some examples of medical malpractice?

• Birth Injuries and Cerebral Palsy
• Brain Damage

What is the definition of medical malpractice?

In most states, a legal claim for medical malpractice arises when a patient is injured by medical care that is not within the accepted standards of medical practice in the same or similar communities.  Medical malpractice is a term used to describe negligence or mistakes made by hospitals, doctors, nurses or other health care providers.  Medical errors occur every day, and sometimes those mistakes cause a wrongful death or permanently injure a patient.

Are all bad outcomes malpractice?

No.  It is an unfortunate fact of life that people grow ill, and not everyone gets better.  Martin & Jones believes that we owe it to our clients and the medical community to have potential claims reviewed by experts who are both impartial and highly qualified.  We ask the best experts from around the nation to tell us whether or not a tragic outcome was related to medical negligence.  Our attorneys have identified highly qualified experts who are willing to review potential malpractice claims and provide impartial opinions.  The firm prides itself on obtaining excellent experts and respecting their opinions.  It is in no one's best interest to file a claim for medical malpractice simply because there has been an unfortunate outcome in a medical setting.

How can an attorney help?

When negligence occurs the injured patient or family is usually not told about the mistake.  An attorney can review medical records with the help of medical experts to determine if the standard of care was not followed.  When medical malpractice injures a patient or causes a wrongful death, the patient and/or family are entitled to recover from the hospital's or doctor's medical malpractice insurance.  Medical malpractice claims are among the most difficult cases to win at trial.  With that in mind, Martin & Jones carefully scrutinizes potential medical negligence claims to ensure that a claim is valid.  If medical experts believe that there is no evidence of medical malpractice, we explain the basis for those opinions to our clients so that they will understand what happened.  Most patients who believe they were injured want to find out how it happened.  On the other hand, if we believe that a client has been injured by medical negligence, we will represents that client  zealoulsly and ethically to obtain compensation and justice.

In what settings can malpractice occur?

Tens of thousands of people die each year due to medical mistakes.  This has become the third leading cause of death in the United States. Medical malpractice frequently occurs at hospitals in emergency rooms and operating rooms, but malpractice can also arise out of a visit to a doctor's office or even a phone call to a nurse.  Patient safety can be compromised in a variety of ways.  Claims can arise from negligence on the part of physicians, nurses, respiratory therapists, technicians or home health care personnel.  In hospitals where some of all of a patient's care is delivered by medical students, interns, residents or others in training, medical mistakes are more common that you might expect.

Millions of patients seek treatment in emergency rooms every year.  Mistakes in emergency rooms are not uncommon, though they are seldom talked about or reported to the media.  Patients sometimes wait for several hours, and frequently there are not enough doctors and nurses to treat them all.  Understaffed hospitals and emergency room can cause deadly mistakes.  Emergency room patients are often treated inadequately, and there are many ways for mistakes to happen.  For example, prescription and medication errors are more common that most people expect.  Delayed or incorrect diagnoses are also problems in stressful emergency rooms.  Emergency room malpractice may subject patients to infections.  Frequently, there are problems that arise out of "patient dumping" or confusion over who is actually responsible for treating the patient.

Medical malpractice also occurs at VA hospitals.  Veterans are not barred from pursuing lawsuits again the U. S. government for injuries.  The Federal Tort Claims Act (FTCA) and Military Claims Act allow civilians to claim compensation from the government when damage is caused by the negligence of an employee or agency of the government including the Department of Veterans Affairs.  Therefore, veterans who have been victims of malpractice have legal remedies including lawsuits available to them.

What are some causes of medical malpractice?

Causes of surgical errors are poor pre-operative planning or care, lack of competence or experience on the part of the surgeon, incorrect incisions, the use of non-sterile equipment, damage to nearby organs or nerve damage.  Some cases involve surgical instruments or sponges being left in a patient that later cause serious post-operative damage.  Many cases of wrong-site surgery are reported every year.  Surgical errors can also occur in the post-operative period.  Substandard aftercare can lead to infection, septic shock, delayed healing and other life threatening medical consequences.

A variety of errors can be made in the administration of anesthesia, including too much or too little anesthesia, delayed delivery of anesthesia, failure to intubate or injury caused by intubation, failure by the anesthesiologist to properly monitor the patient, failure to recognize anesthesia complication or the use of defective equipment.

Improper Use of Medical Equipment

Unfortunately, hospitals and doctors occasionally overlook proper procedures in using specialized medical equipment.  Improper use of medical equipment may cause burns, scars, deformities, severe pain, loss of function to certain body parts or further injury.  In the worst case, death may occur as a result of the improper use of medical equipment.

Medication Error

Medication errors are among the most common medical errors, harming more than one million people every year.  When a doctor treats a patient with a medication, he or she has to specify what medicine the patient should receive, how much and when it is to be given.  Errors can be made in any of those steps:  the wrong medicine might be given, or the wrong amount, or the medicine may given at the wrong time.  According to the National Coordinating Council for Medication Error Reporting and Prevention, a medication error is "any preventable event that may cause or lead to inappropriate medication use or patient harm while the medication is in the control of the healthcare professional, patient or consumer."  In 1999, the Institute of Medicine released a report, "To Err is Human:  Building a Safer Health System."  That report stated that between 44,000 and 98,000 death may result each year from medical errors in hospitals alone.  More than 7,000 deaths each year are related to medications.

From 1983 to 1998, the Food and Drug Administration studied reports of deadly medication errors.  It found that the most common medication error was giving an improper dose (the wrong amount) of the prescribed medicine.  This type of error caused 41 percent of the fatal medication errors during that time.  Giving the wrong drug and using the wrong route of administration each account for 16 percent of the errors.  Almost half of the deadly errors were in patients over the age of 60, but patients of all ages can be victims of medication mistakes.

Delayed or Missed Diagnosis

Delays in diagnosis can directly impact a patient's chance of recovery and survival.  The earlier an illness is correctly diagnosed and treated, the better chance the patient has at recovery and survival.  The failure to diagnose health issues early can lead to more serious complications of the illness or even death.  Incorrect or delayed diagnosis of an illness can cause a doctor or other hospital personnel to fail to order necessary tests, to order the wrong tests, to misinterpret test results, to fail to act on abnormal results or to choose an incorrect form of treatment or no treatment at all.

One study found that cancer was the most commonly missed diagnosis.  Patients with many types of illnesses have reported a delay in diagnosis or a missed diagnosis.  There are several steps in the process of diagnosing an illness.  In some cases, a proper diagnostic test is not performed.  Sometimes test results are not followed up adequately, or the doctor or nurse does not obtain adequate information from the patient or perform an adequate physical examination.  Also, doctors may incorrectly interpret results.

What are some examples of medical malpractice?

Medical mistakes made near the time of childbirth can injure the mother, the baby or both.  Babies injured near the time of birth may face life-long physical or mental disabilities.  Sometimes the family of an injured baby thinks that the child's injury is related to a birth defect, and that the child was going to be born with that injury no matter what anyone did.  But, frequently, babies are injured by lack of oxygen to the brain during labor and delivery.  This lack of oxygen is usually preventable.  A preventable injury may be medical malpractice.  If the healthcare providers don't take the required steps to ensure that the baby receives enough oxygen, they have committed medical malpractice.

There are various types of injuries that babies can sustain at or near the time of birth due to malpractice.  Lack of oxygen can cause death or brain damage.  Brain damage to a baby may later be diagnosed as cerebral palsy.  Cerebral palsy is a term that describes a group of disorders that affect the brain's ability to control body movement.  Sometimes lack of oxygen to the baby is caused by failure to perform a timely ceasarean section, a failure to deliver the infant when the membranes have been ruptured for too long, excessive use of a vacuum extractor, trauma to the head during labor and delivery, or failure to have a pediatrician present at delivery.  Another type of birth injury is a brachial plexus injury, frequently called Erb's Palsy, which result from excessive pulling on the baby's head during delivery.  A vaginal birth after the mother has already had a caesarean section (VBAC) is also potentially dangerous in some circumstances.

Doctors will suspect that there has been a brain injury if the baby is floppy or has poor color at birth; if the baby needs resuscitation shortly after birth because he or she is not breathing; if the baby has a poor ability to suck after birth or maintain body temperature; or if he or she develops seizures.  Another sign of possible brain injury is any baby who was born full-term but did not go home at the same time as his or her mother.  These babies tend to be admitted to a NICU for some period of time.  Sometimes, doctors order MRIs of the baby's brain to see if there is brain damage.

During labor and delivery, healthcare providers have a responsibility to closely monitor the laboring mother.  In the period after delivery, called the post-partum period, close monitoring is also critical.  Blood disorders, HELLP Syndrome, toxemia or pre-eclampsia are just a few of the risks faced by pregnant mothers.

Brain Damage

An injury to the brain is the most devastating kind of injury and can cause life-long disability.  There are many signs of brain damage, in varying degrees.  Symptoms can range from a comatose or persistent vegetative state on one end of the spectrum, to excessive sleepiness, inattention, difficulty concentrating and impaired memory on the other.  If the damage to the brain is minor, the symptoms should lessen over time as the brain heals.  On the other hand, many types of brain injury are permanent.

The symptoms of brain damage depend on where the brain has been injured.  For example, if the front lobe is injured, the patient may experience loss of simple movement of various body parts (paralysis).  This area of injury is also associated with problems sequencing and paying attention and Broca's Aphasia.  If the parietal lobe is injured,  the patient may suffer from an inability to name an object (anomia), and inability to locate the words for writing (agraphia) or a lack of awareness of certain body parts and/or surrounding space (apraxia).  If the occipital lobes are injured, the patient may experience vision difficulty and difficulties with reading and writing.  If the temporal lobes are injured, the patient may experience difficulty in recognizing faces (prosopagnosia) or difficulty in understanding spoken words (Wernicke's Aphasia).

The most devastating brain injury is one that occurs to the brain stem deep within the brain.  Brain stem injury can impair many things including breathing, speech and swallowing.  Damage to the cerebellum can be similarly catastrophic in that it may cause an inability to coordinate movements like walking.

Brain damage is frequently caused by lack of oxygen to the brain.  This can happen several ways, but healthcare providers always have the responsibility to make sure that a patient's brain is receiving adequate oxygen.  Brain damage caused by medical malpractice can happen to babies at birth, to emergency room patients, to patients receiving anesthesia and undergoing surgery and in many other scenarios.