Imagine waking up from a double mastectomy surgery to hear the great news that you do not have cancer, to only find out later that you never had cancer and that your medical chart got mixed up with another patient who does. This type of situation was caused by medical malpractice and negligence by the physician. In this paper key topic that will be discussed is the definition of negligence, lawsuits, standard of care, malpractice, malpractice cases, and the law.
Negligence is the unintentional or omission of an act that a sensible person would not have done or looked over. A negligent person might also disregard their duties whereas a sensible person would not. There are different types of negligence which include misfeasance, malfeasance, and nonfeasance. Misfeasance is when a provider does the correct action incorrectly causing an injury. Malfeasance is when a provider performs an act that is deemed unlawful such as performing a procedure in a state where it is illegal. Nonfeasance is when a provider fails to perform duties that a reasonable person would have fulfilled. In order for a person or party to claim that negligence played a part in an injury, medical condition, or death it must be proven. There are multiple key factors that must occur such as a breach in the standard of care and negligence is responsible for the injury. Standard of care is the level of care that a patient can expect to receive. A breach in care is just the opposite the patient does not receive that quality care and mistakes can happen such as a patient getting the wrong medication. Some states require an expert witness to prove that there was a breach in care. In order for a person to sue for negligence they have to prove that negligence was responsible for the injury, it contributed to a medical problem, worsened their condition, or death. If negligence happened but it did not contribute to the injury or death of a person then no legal action can be taken. In order for negligence to be proven, there must be four key factors involved. The first factor is that the party that was deemed negligent must have a duty towards the plantiff. Meaning that there was a patient-provider relationship. The second factor is that there had to be a breach in duty, by failing to provide the patient with the appropriate standard of care. The third factor is that the patient must prove that the injuries that they suffered happened under care of the physician they are suing. The last factor is that everything must be proven. If it has been proven that a breach in the standard of care and that it is responsible for the medical condition then the patient or the party bringing the suit is entitled to damages. Damages include compensation for medical bills, loss wages, as well for pain and/or suffering. Damages can also cover expected losses in wages and livelihood in the future. However the payment may differ between people. This is due to the fact that the injury may affect people’s lives in different ways. For example if a professional soccer player loses his leg due to a medical error, he may be entitled to more compensation versus someone who does not rely on his leg as much to make a living. There is a time limit called statute of limitations; that gives patients a certain amount of time to file a case. It varies state to state but the average amount of time is two years; which means that a patient cannot file a case for neglect or malpractice if the statute of limitations time has expired. The only exception to this rule is if the person has no way of knowing the injury has occurred, however the catch to that is the state will dictate what amount of time is reasonable enough time to assume they know. Malpractice is the improper, careless, and negligent care of a patient. It is also the omission of performance of duties either done intentionally or through carelessness. If the malpractice is deemed simple carelessness then it will be a civil case, however the actions of the physician are deemed reckless disregard then it will be a criminal case. The risk of a malpractice suit is on the average 7.4% among all physicians each year.
Medical malpractice lawsuits in the United States remain a hot issue.
There are multiple types of malpractices with a wide range of ending results. In some states such as Pennsylvania and New Jersey they are required by law to report all major medical errors. However in 2007 Pennsylvania did not report that on two serperate occasions they left surgical equipment in two different patients. Each year hundreds of thousands of Americans are killed or injured by avoidable medical errors.
When it comes to specialty physicians like cardiologist they have a higher than average risk of being sued, but are less likely to have to make any financial payment to the plaintiffs. Surgical specialties face the largest amount of lawsuits and litigations; with approximately 20% of those lawsuits going towards neurosurgeons and cardiothoracic surgeons. 19.1% of Neurosurgeons get sued each year however there is a 3.1% chance that they will have to pay the plaintiff. General Surgeons get sued on the average of 15.3% each year with a 4.2% payment rate. Pediatricians and psychologist have the least amount of risk for getting sued. Though just because a certain specialty physician gets sued than another does not always mean that they will pay more to the plaintiff. On the average a dermatologist will have a settlement of $117,832 with an average of 5.4% of getting sued. On the other hand pediatrics only gets sued only about 3.1% each year with a 0.5% chance of making a payment to the plaintiff however on the average they will settle with making a payment of $520,923. Around 70% of claims and suits brought against doctors do not result in payments to patients.
Types of malpractices cover a wide range of areas such as labor and delivery, heart surgery, misdiagnosis, and spinal surgery. When it comes to labor and delivery there are a few cases that really stick out. A women’s physician determined that having a cesarean section would be the best method of delivery for a women that was already in labor. The doctor delayed the procedure, which caused the infant to develop cerebral palsy due to a blockage of oxygen. The doctor was found guilty of neglect and was ordered to pay the mother.
Another case is a woman who was 8 months pregnant went to a medical center 3 times complaining of abdominal pain. The medical center sent her home with prescription pain killers. They did not check to see if she was in labor before they turned her away. When she got home she went into labor at her house, the baby’s head got stuck in the birth canal and died. The patient did sue and they physician did have to pay.
When it comes to heart surgery a patient underwent a heart procedure that in the end proves unnecessary. The surgery resulted in the patient having an improper valve function and blood clot, which caused long-term health problems for the patient. Other surgical malpractices include the case of a patient undergoing back surgery and the spinal canal is accidentally punctured giving the patient long term pain.
Another type of malpractice is misdiagnosis. This is when a physician either fails to diagnose a patient or gives them the wrong diagnosis. In one case a physician failed to properly diagnose a patient’s cancer. Therefore the patient did not take any steps to get cured and eventually dies from the disease. Case like this are not uncommon however over the years the physicans are trying to bring cases like this down. One way they are trying to do this is through defensive medicine. Defensive medicine can either be negative or positive defensive medicine, with both having certain pros and cons.