"A startling 5% of the doctors are responsible for 50% of the medical malpractice in this country. We believe it is important to hold these doctors responsible for the consequences of their negligent conduct."

"According to the Institute of Medicine, medical errors kill 98,000 Americans each year. Hundreds of thousands more are seriously injured."

OVERVIEW

Physicians undergo extensive training to ensure that they deliver proper care to their patients. In many instances however, physicians act negligently or fail to act at all and thus, deviate from the accepted standard of care. When a medical professional deviates from the accepted standard of care resulting in injury or even death to a patient, medical malpractice has occurred.

Medical malpractice is not limited to a physician's negligent deviation from the accepted standard of care. A hospital can also be held liable for failing to deliver proper care by providing inadequate nursing care, providing improper medications or failing to provide a hygienic environment.

Although, there are no guarantees for medical results and an unexpected outcome from a procedure does not, by itself, constitute malpractice, laws are in place that are designed to protect a patient's right to pursue compensation for their injury. However, depending on the jurisdiction, one's right to bring a claim may expire relatively quickly. Therefore, it is imperative that if you or someone you know believes that an injury or even death has occurred due to a physician's or hospital's negligence that you consult with an attorney as soon as possible, regardless of ongoing treatment, to preserve the right to receive compensation for the injury.

LIABILITY- Who is liable?

Medical malpractice can be committed by health care providers such as doctors, nurses or other staff members or by the hospital itself. In many cases, when the negligent act is committed by a hospital employee, the case is controlled by the doctrine of respondent superior. The doctrine of respondent superior states that an employer may be held liable for the negligent acts or omissions of its employees if the employees were acting within the scope of their employment. This doctrine plays a vital role in medical malpractice cases because it attempts to ensure that the injured party will be properly compensated for their injury. Additionally, depending on the state, liability may be attached to the hospital under the doctrine of joint and several liability. This doctrine holds that, if multiple parties are found liable for the injury to a plaintiff, each defendant is individually liable for the entire amount of the judgment. As with the doctrine of respondent superior the doctrine of joint and several liability ensures that the injured party is properly compensated for his or her injuries because under this doctrine, if one defendant is unable to pay the other defendant or defendants are liable for the entire amount of the judgment.

The doctrine of respondent superior does not apply to all situations. Some healthcare providers are considered independent contractors and, as such, their services are provided on a contract basis; therefore, they are not considered hospital employees. In these instances the independent contractors or the independent contractor's actual employer are held liable and the hospital can only be held liable if it has acted negligently in the hiring of the contractor, such as hiring an unlicensed physician.

THEORIES - Why can someone be held liable?

Medical malpractice cases generally proceed on one or more of four basic theories: general negligence, failure to obtain proper informed consent, negligent prescription of medication or medical devices and breach of contract or warranty.

           1) Negligence

General negligence is the most prevalent theory used to establish medical malpractice. To demonstrate that a party acted negligently the plaintiff has the burden of proof to demonstrate:

1. The medical professional owed a duty of care to the patient. This duty often exists as a result of a doctor/patient relationship.
2. A breach of the duty owed. This if often demonstrated by the physician's deviation from the accepted standard of care.
3. A casual relationship between the breach of duty (deviation from the standard of care) and the patient's injury.
4. Compensational injury to the patient

In rare instances the doctrine of res ipsa loquitur can apply. Under this doctrine the mere fact that an accident occurred raises an inference of negligence. In other words, the injury could not have happened but for the negligence of the doctor. The most common example of this occurs when a doctor leaves a sponge in the patient after surgery. Here, the most likely way the sponge could have been left in the patient is by the doctor's negligence. Since negligence is presumed, the burden of proof shifts to the defendant to rebut the presumption of negligence, meaning the defendant must prove that they were not negligent as opposed to the plaintiff proving that the defendant was negligent.

           2) Failure to obtain proper informed consent

Most medical treatments in a hospital setting require written consent by the patient and such consent must be "informed." This means the patient must be capable of understanding key aspects of the treatment he or she is going to receive in order to decide whether to undergo the treatment.

In order to obtain proper informed consent a health care provider is required to tell the patient of the potential benefits, risks and alternatives involved in the procedure or treatment. A health care provider's failure to obtain a patients informed consent may constitute negligence and can, in some instances, give rise to a cause of action for battery.

Typically, when obtaining informed consent the health care provider will discuss the following:

• The diagnosis
• The nature, purpose and likelihood of success of the procedure or treatment.
• The potential benefits of the proposed treatment or procedure.
• The potential risks of the proposed treatment or procedure.
• The available alternatives to the treatment or procedure.
• The risks and benefits involved with the available alternatives.
• The risks and benefits involved with not receiving any treatment or procedure.

The informed consent document must be signed and dated by the patient or the patients legally authorized agent. The document should include the name of the health care provider who discussed the proposed treatment, the name of the health care provider who is to perform the proposed treatment and the time, date and location where the document was signed.

In some situations it is not necessary to obtain informed consent. These situations typically include non-invasive procedures such as a preliminary examination (heart beat, blood pressure) and emergency situations.

In emergency situations a patient's life may be in danger and time is of the essence. Additionally, the patient may be unable to respond. Here, consent is implied under the rational that the patient would have consented to the procedure or treatment.

           3) Negligent Prescription of Medications or Medical Devices

Doctors, Health care providers and pharmaceutical manufacturers can be held liable for negligently providing medication or medical devices. The majority of cases involving negligent prescription of medication or medical devices are brought on a theory that the prescribing physician breached their duty to provide reasonable care in their practice.

Due to their superior medical knowledge and training in conjunction with the information provided by the pharmaceutical or medical device manufacture physicians are considered by the courts to be "learned intermediaries." As such, the physician is in the best position to determine if a drug of device is appropriate for a given medical situation. Therefore, as a "learned intermediary" a physician's failure to provide the proper dosage, proper dosage instruction or failure to follow the manufacturer's instructions can be considered a breach of the duty to provide reasonable care and such a breach constitutes negligence.

Additionally, a pharmaceutical manufacturer may be held liable for a patient's injury if they failed to warn of the potential side effects or dangers of the drug. Here, the pharmaceutical or medical device manufacturer owes two duties: one to the physician to inform the doctor of the potential risks and dangers of the drug or device and its proper method of use and, second, a duty to the ultimate consumer. This duty is to ensure a drug or device will be reasonably safe when used as intended. To insure that a medication or device is reasonably safe the manufacturer must research the side effects and dangers of the drug and inform the physician of the results. If a manufacturer fails to properly research a medication or device and the medication or device is found to be "unreasonably dangerous" the patient may recover damages for their injuries under product liability law for the manufacturers failure to provide proper warnings.

           4) Breach of contract or warranty

In rare instances a physician may promise or guarantee results. In such instances the results may differ from what the physician promises; if this occurs an action may be brought for breach of contract or warranty.

DAMAGES- "CAPS"

When an injury occurs due to the negligent act of a health care provider the injured party may seek damages in the form of compensatory or pecuniary damages, non-compensatory or non-pecuniary damages and in rare instances punitive damages.

Compensatory or pecuniary damages are designed to compensate the injured individual for the financial losses that he or she suffered because of an injury. When determining the amount of compensatory or pecuniary damages to award a jury considers factors such as lost earning capacity, medical expenses as well as other financial factors.

Additionally, the injured party may recover non-compensatory or non-pecuniary damages. These damages include, among other things, compensation for pain and suffering. These damages are subjective and can range in the millions of dollars; as such, they have been the subject of much legislation. This legislation to limit or "cap" the amount one can recover in the form of non-compensatory or non-pecuniary damages is known as tort reform and is now in place in many states.

Finally, punitive damages are rarely awarded in medical malpractice cases. To receive punitive damages the injured party must demonstrate that the health care provider exhibited behavior that constituted a degree of recklessness greater then that of mere negligence.

CONCLUSION

Although, there are no guarantees for medical results and an unexpected outcome from a procedure does not, by itself, constitute malpractice, laws are in place that are designed to protect a patients right to pursue compensation for any injury they incur. However, depending on the State, one's right to bring a claim may expire relatively quickly. Therefore, it is imperative that if you or someone you know believe that an injury or even death has occurred due to a physician's negligence or improper care by a hospital that you consult with an attorney as soon as possible, regardless of whether ongoing treatment is still occurring, to preserve the right to seek compensation for the injury.