What is Medical Negligence?
Medical malpractice arises when your doctor or
healthcare provider either does something wrong or
forgets to do something altogether. This can be as
simple as misreading an x-ray or, after reading the
x-ray, failing to tell you the results. However,
the act by the physician is not itself enough to
create a claim for medical malpractice. There must
also be damages or injury to you. For example, if
the doctor took an x-ray, observed a tumor and
failed to tell you until the tumor became
inoperable, there may be a claim for medical
malpractice. On the other hand, if the doctor took
the x-ray, observed that it was normal and failed
to tell you, then it is unlikely that you have a
claim... No harm, no foul.
How Often Does It Occur?
How often does it occur?
Despite a high degree of trust in our medical profession, even doctors sometimes slip up. In fact, a study conducted by Harvard University found that approximately 4% of patients suffered a wholly preventable injury during their hospital stay. 1 Of those victims, 14% died as a result of the medical negligence. If these rates are consistent throughout the country, this would mean 180,000 people die annually as a result of medical negligence. By comparison, less than 40,000 people die annually as a result of auto accidents. 2
Authorities
1. Patients, Doctors, and Lawyers: Medical Injury, Malpractice Litigation, and Patient Compensation in New York. The Report of the Harvard Medical Practice Study to the State of New York. Harvard Medical Practice Study (1990).
2. National Highway Traffic and Safety Administration statistics show that no more than 38,000 people died annually in traffic accidents for the years 1994-2002. http://www-fars.nhtsa.dot.gov
Despite a high degree of trust in our medical profession, even doctors sometimes slip up. In fact, a study conducted by Harvard University found that approximately 4% of patients suffered a wholly preventable injury during their hospital stay. 1 Of those victims, 14% died as a result of the medical negligence. If these rates are consistent throughout the country, this would mean 180,000 people die annually as a result of medical negligence. By comparison, less than 40,000 people die annually as a result of auto accidents. 2
Authorities
1. Patients, Doctors, and Lawyers: Medical Injury, Malpractice Litigation, and Patient Compensation in New York. The Report of the Harvard Medical Practice Study to the State of New York. Harvard Medical Practice Study (1990).
2. National Highway Traffic and Safety Administration statistics show that no more than 38,000 people died annually in traffic accidents for the years 1994-2002. http://www-fars.nhtsa.dot.gov
Protect Yourself.
Just as you were a seatbelt and rely on airbags to
protect yourself against the mistakes of other
drivers, you can take steps to reduce the
likelihood of becoming a medical malpractice
victim, or reduce the harm if you do become a
victim.
First, and foremost, you should always get a second opinion in serious medical matters or if the problem you are having isn't going away despite numerous treatments. Also, talk to your doctor! The more information you give him and the more questions you ask the better he or she will be able to help you get well. Additionally, there are several websites which you can use to give your doctor his own check up:
* Find out if your doctor is board certified.
* Find out if your doctor has a current state license.
* Find out if your doctor has been sanctioned.
Second, you or your loved one may not be aware that the doctor made a mistake. Signs that you may be the victim of medical malpractice include:
* Recovery time longer than originally anticipated
* Unforseen complications
* Sudden need for 'specialist' intervention
* Surgery takes much longer than expected
* Ailment or illness which doctor initially misdiagnosis
* Ailment or illness which lingers despite numerous treatments
* Another doctor tells you the outcome from treatment could have been better
Finally, if your treatment happened within the last thirty days, send a written letter to your healthcare provider/facility which revokes your previously signed agreement to arbitrate. Sadly, many doctors are now requiring their patients to sign agreements to give up their right to file a lawsuit against them. If you signed such an agreement, you may be forced to have your claim arbitrated outside the traditional judicial process. Under these circumstances, a panel of arbitrators will determine your rights and damages instead of a judge and jury. In order to preserve your right to a jury, send written notice that you are revoking your previous signed agreement.
First, and foremost, you should always get a second opinion in serious medical matters or if the problem you are having isn't going away despite numerous treatments. Also, talk to your doctor! The more information you give him and the more questions you ask the better he or she will be able to help you get well. Additionally, there are several websites which you can use to give your doctor his own check up:
* Find out if your doctor is board certified.
* Find out if your doctor has a current state license.
* Find out if your doctor has been sanctioned.
Second, you or your loved one may not be aware that the doctor made a mistake. Signs that you may be the victim of medical malpractice include:
* Recovery time longer than originally anticipated
* Unforseen complications
* Sudden need for 'specialist' intervention
* Surgery takes much longer than expected
* Ailment or illness which doctor initially misdiagnosis
* Ailment or illness which lingers despite numerous treatments
* Another doctor tells you the outcome from treatment could have been better
Finally, if your treatment happened within the last thirty days, send a written letter to your healthcare provider/facility which revokes your previously signed agreement to arbitrate. Sadly, many doctors are now requiring their patients to sign agreements to give up their right to file a lawsuit against them. If you signed such an agreement, you may be forced to have your claim arbitrated outside the traditional judicial process. Under these circumstances, a panel of arbitrators will determine your rights and damages instead of a judge and jury. In order to preserve your right to a jury, send written notice that you are revoking your previous signed agreement.
My Healthcare Provider Made a Mistake.
I think my healthcare provider made a mistake, now
what?
If it is not a case of wrongful death, get a second opinion from another doctor in the same specialty. This will help to preserve your medical records in case a lawsuit must be pursued. If the victim has passed away, ask to have copies of the medical file and any films (x-rays, MRIs, CTScans etc.). Finally, if you believe you have a claim, do not wait to speak with an attorney. Attorneys practicing in the medical malpractice field usually do not charge for the initial consultation. Click on the FAQs to find out more about choosing an attorney.
If it is not a case of wrongful death, get a second opinion from another doctor in the same specialty. This will help to preserve your medical records in case a lawsuit must be pursued. If the victim has passed away, ask to have copies of the medical file and any films (x-rays, MRIs, CTScans etc.). Finally, if you believe you have a claim, do not wait to speak with an attorney. Attorneys practicing in the medical malpractice field usually do not charge for the initial consultation. Click on the FAQs to find out more about choosing an attorney.
Time Limits.
How long do I have to file a claim?
* Within two years after the injury; unless
* A foreign object (needle, sponge etc) was left inside the patient, in which case the claim must be brought within one year after the object is discovered; or,
* The health care provider hid or affirmatively misled the patient into believing nothing happened, in which case the claim must be brought within one year after learning about the provider's deception; or,
* No one was aware of the injury, in which case the claim must be brought within two years after becoming aware of the injury, but not more than four years after the injury; or,
* The person injured was a child, in which case the above times do not begin to run until the child turns eighteen.
In sum, deciding how much time you have to make a claim is a complicated and difficult issue. You should contact an attorney immediately if you believe you have been the victim of a healthcare provider's carelessness.
* Within two years after the injury; unless
* A foreign object (needle, sponge etc) was left inside the patient, in which case the claim must be brought within one year after the object is discovered; or,
* The health care provider hid or affirmatively misled the patient into believing nothing happened, in which case the claim must be brought within one year after learning about the provider's deception; or,
* No one was aware of the injury, in which case the claim must be brought within two years after becoming aware of the injury, but not more than four years after the injury; or,
* The person injured was a child, in which case the above times do not begin to run until the child turns eighteen.
In sum, deciding how much time you have to make a claim is a complicated and difficult issue. You should contact an attorney immediately if you believe you have been the victim of a healthcare provider's carelessness.
What Happens When a Claim is Filed?
What happens if I make a claim?
Most doctors carry malpractice insurance and will have an attorney hired by the insurance company to represent them. Under Utah law, you cannot go directly to court to seek compensation for injuries from medical malpractice. A 'notice of claim' must be sent both to the health care provider and the Utah Department of Professional Licensing. After receipt of these notices, a panel is chosen which has one person from each medical specialty involved, an attorney and a lay person. The panel hears both sides of the story and then issues a decision which finds the claim either meritorious or non-meritorious. The Department of Professional Licensing then issues a certificate of compliance and, if the health care provider and patient cannot reach a settlement, a formal lawsuit may be filed.
If a lawsuit becomes necessary, one difficult and expensive aspect of medical malpractice claims involves expert witnesses. In each lawsuit for medical malpractice, the plaintiff must show through the testimony of a doctor that (1) the doctor accused of malpractice failed to provide a standard level of medical care required throughout the profession and (2) that the failure to provide such care caused injury. Some expert medical witnesses have been known to charge up to $2,500/hr for their assistance. Obviously, in addition to the other hurdles imposed by medical malpractice statutory law in Utah, the requirement of expert testimony can be very prohibitive in pursuing a medical malpractice claim.
Finally, the amount of money that you can receive for medical malpractice is limited. Recovery for lost wages (both future and present) and medical bills arising from the malpractice are not limited. However, compensation for your pain and suffering is limited by statute. As of 2006, Utah law limited recovery of 'non-economic' damages to $460,000. This means that if your arm were to be amputated through malpractice, you could recover all of your lost wages due to the malpractice, but could only recover $460,000 for your pain, suffering and emotional damages due to the loss of your arm.
Most doctors carry malpractice insurance and will have an attorney hired by the insurance company to represent them. Under Utah law, you cannot go directly to court to seek compensation for injuries from medical malpractice. A 'notice of claim' must be sent both to the health care provider and the Utah Department of Professional Licensing. After receipt of these notices, a panel is chosen which has one person from each medical specialty involved, an attorney and a lay person. The panel hears both sides of the story and then issues a decision which finds the claim either meritorious or non-meritorious. The Department of Professional Licensing then issues a certificate of compliance and, if the health care provider and patient cannot reach a settlement, a formal lawsuit may be filed.
If a lawsuit becomes necessary, one difficult and expensive aspect of medical malpractice claims involves expert witnesses. In each lawsuit for medical malpractice, the plaintiff must show through the testimony of a doctor that (1) the doctor accused of malpractice failed to provide a standard level of medical care required throughout the profession and (2) that the failure to provide such care caused injury. Some expert medical witnesses have been known to charge up to $2,500/hr for their assistance. Obviously, in addition to the other hurdles imposed by medical malpractice statutory law in Utah, the requirement of expert testimony can be very prohibitive in pursuing a medical malpractice claim.
Finally, the amount of money that you can receive for medical malpractice is limited. Recovery for lost wages (both future and present) and medical bills arising from the malpractice are not limited. However, compensation for your pain and suffering is limited by statute. As of 2006, Utah law limited recovery of 'non-economic' damages to $460,000. This means that if your arm were to be amputated through malpractice, you could recover all of your lost wages due to the malpractice, but could only recover $460,000 for your pain, suffering and emotional damages due to the loss of your arm.