When you go to a doctor's office or a hospital with a health issue, you expect to get better. However, as much as we do not want to admit it, doctors, surgeons, and nurses are human beings just like the rest of us. They make mistakes, too. Unfortunately, when they do make a mistake, it is often far more costly than one of our own. Their mistake or oversight can exacerbate the health problem you came to them with, even though it was already serious on its own. Their mistake can even be a fatal one.
This is why the medical malpractice attorneys at the Philadelphia law office of Gilman & Bedigian work to hold medical professionals accountable. By fighting for your rights and interests both in and out of the courtroom, our attorneys can make sure that you get the compensation that you need for the injuries that they caused.
The Serious Problem of Medical Malpractice
Health care professionals – whether they be doctors, nurses, surgeons, or even hospital administrators – are all responsible for your wellbeing while you are in one of their facilities. This is an incredibly tall responsibility, on their part. After all, the people who go to these places are already having health problems.
Because of the difficulties that health care professionals face on a daily basis, it should not come as a surprise that they are overworked, stressed, and often fatigued while on the job. Unfortunately, this can lead to them making mistakes, missing a key piece of information that they should have discovered, or overlooking a basic task. Anytime this happens, patients like you can get seriously hurt from the medical malpractice.
Just how often medical malpractice happens is unknown. Hospitals report their own figures and have an incentive to keep them low. In fact, death certificates did not even have a category for medical malpractice until recently. That category was only created after researchers at Johns Hopkins Medicine estimated that, except for cancer and heart disease, medical malpractice was the leading cause of death in the United States.
Not everyone who suffers from medical malpractice dies from it, though. Many others suffer serious, but non-fatal, injuries from a doctor's mistake. While, again, numbers are not easy to find, the Civil Justice Resource Group (CJRG) has estimated that between 0.8% and 1% of hospital patients suffer injuries from medical malpractice.
While these numbers might make you never want to go to the hospital again, another statistic from the CJRG is more optimistic: More than half of the medical malpractice claims in the U.S. are filed against only 4.8% of the country's physicians. These claims, though, are only the ones that get filed. Many more are not pursued by the people who suffer from medical malpractice. In fact, according to the CJRG, fewer than 3% of the people who suffer medical malpractice end up filing a lawsuit to enforce their rights and get the compensation they deserve.
Medical Malpractice in Philadelphia
A medical malpractice lawsuit is a type of personal injury lawsuit. These claims are all about suing someone in court in order to get the compensation you need so you can recover from the injuries they caused.
All personal injury cases revolve around the same situation: Someone else had a responsibility to keep you safe, they failed to uphold this responsibility, and that failure caused you to get hurt.
When it comes to medical malpractice cases, this scenario usually looks like this: You or someone you love goes to a medical facility – like a hospital or doctor's office – to get help. While there, you get seriously hurt by something that happened while you were there, or by the medical advice or conduct of someone who worked there.
Even if your injury is the result of an accident – even if the person who hurt you did not do it on purpose – you should still be compensated for their mistakes. After all, it would be unfair to expect you to pay for your own injuries or the expenses you incur on your road to recovery if you were perfectly innocent. Even if your injuries were the result of someone being negligent, you are still the least responsible person and should be compensated, as a result.
Medical Professionals Owe a Duty of Care
The first step in a medical malpractice case is to show that a medical professional had a responsibility to keep you safe. In legal terms, this is called a duty of care. When you go to a doctor or a hospital and get medical attention from them, they are legally obligated to uphold a duty of care that complies with the standards of practice that are considered acceptable in the medical community. While this sounds like it should be straightforward, what is a “standard practice” that has been “accepted in the medical community” is actually very difficult. Doctors and surgeons do not have a handbook that details exactly what needs to be done in every possible circumstance they could possibly face while on the job.
Because of this, it can be difficult to see whether a particular doctor or medical professional – or if the medical facility, itself – owed you a duty of care. If you cannot find who owed you a duty of care, then your case cannot go forward, regardless of how serious your injuries were, because you have not isolated the person who was responsible for them.
The complexities of this issue are not easy to appreciate. Even the most basic surgery in a hospital requires a handful of medical professionals and staff members. Each one of these people can have one or several important roles to play in the procedure. This often means that several people have a duty of care at some point during the surgery, but also that no one has it throughout the whole thing. Isolating what, exactly, was the instance of medical malpractice, when it happened, and who had the duty of care at that point in time is not easy, especially because many medical procedures are done behind closed doors, where no one uninvolved can see what is going on.
To make matters worse, medical facilities – particularly hospitals – are notorious for using smoke and mirrors to prevent medical malpractice claims from getting very far. One of their favorite tactics is to use medical professionals who are not technically employed by the hospital. If one of these independent contractors was responsible for something during your procedure, you can expect the hospital to try putting as much blame on them as possible. This is because, if it is found that a medical professional who was an independent contractor was responsible for the medical malpractice, the hospital typically does not have to pay anything. However, you often stand to get far less in compensation because these independent contractors do not have as much malpractice insurance as entire hospitals do.
When the Duty of Care is Breached
Once it is determined who had the duty of care during a procedure that resulted in medical malpractice, you can start proving that they failed to uphold that duty of care.
This is where the “standards of practice” that have been “accepted in the medical community” come into play. It is also another place where the medical professionals or facilities that you are trying to sue will put up a huge fight against your claims of medical malpractice.
First, lawyers representing the medical professionals that are facing the malpractice suit will look everywhere they can to show that the medical community has accepted whatever happened during your procedure. The medical field evolves quickly, with newer and better practices coming into play on a continual basis. As a result, doctors can often find signs that what they did was normal for the situation. If they can, they will use it as evidence that they upheld their duty to keep you safe while you were in their hands, and that what happened was, therefore, not medical malpractice.
However, the fact that there is no definitive guidebook for medical professionals that covers all imaginable circumstances can also help you prove your own case. Where there is no general consensus among doctors about what to do in a particular situation, then it can be easier to show that what happened in your procedure was malpractice.
Second, if the “standard practice” that is accepted in the medical community is anything close to what happened during the procedure, you can count on the defense lawyers making it sound like all that should have been done, was done. Having skilled medical malpractice attorneys of your own on your side can help argue that this was just not the case.
Injury Caused by the Breach of Duty of Care
Even if a medical professional or facility owed you a duty of care and completely failed to uphold it, you still cannot recover anything if their mistakes did not cause your injury. For a medical mistake or oversight to amount to medical malpractice that can lead to compensation, it would have to have caused your injury. If there was some other factor that intervened or resulted in your injury, itself, then the medical professional who breached their duty of care is no longer liable to you for what you went through.
From the perspective of fairness and justice, this makes sense. Even if a certain doctor or surgeon made a huge mistake and completely forgot about something during your procedure, if there was no harm, then they have nothing to compensate you for.
On a practice standpoint, though, this is a huge pitfall for a medical malpractice case. Most medical procedures happen behind closed doors, with no recording of the event and where everyone who sees what goes in has an interest in hiding things that go wrong. Having to still point to the specific act or oversight that caused your injury is an uphill battle. This is made worse by the defense lawyers for the doctor or hospital, who are actively trying to pin blame on someone who is not on their payroll so they can get out of the case and leave you without compensation.
If you cannot show which particular act or oversight was the cause of your injury, you may be out of luck. However, there are certain methods that can help you out. One of these involves narrowing down the list of potential people who hurt you to a very small number. Sometimes, if a court is satisfied that your injury had to have been caused by one of those people, they might shift the burden of proof onto them, forcing them to show that they were not the one who hurt you.
Another legal doctrine that can help your medical malpractice case is called res ipsa loquitur. This doctrine, which is Latin for “the thing speaks for itself,” allows especially drastic medical malpractice cases to go on, even though you have not directly shown that your injuries were caused by a particular doctor or facility. Res ipsa loquitur only applies to medical malpractice cases that are extreme, though: It is for when your injuries could only have been the result of someone being negligent, and when you could not have contributed to them, in any way. When this is the case, courts look to the doctors and medical facilities that you are suing and wait to hear why they should not be held liable.
When they are defending against a medical malpractice case, defense attorneys like to say that you somehow contributed to your injury. This can happen if, for example, you forget to tell the doctors that you have an allergy to medications before going in for a surgery. If the doctors then prescribe one of these medications and this causes a serious injury during your recovery, then you would have contributed to your injury.
Different states handle these kinds of situations differently. In Pennsylvania, we follow the law of comparative fault. This law compares how at fault you were to how at fault someone else was. Under Pennsylvania's comparative fault rule, if you were 51% or more responsible for your injuries, then you will be completely barred from getting anything in compensation. On the other hand, if you contributed to your injuries less than 51%, then what you can recover is diminished by however at fault you were.
For example, imagine that you go in for a surgery, but do not tell the doctors, surgeons, or the nurses that you are allergic to latex. You get put under anesthesia and the surgeon then uses latex gloves to do the procedure. This causes you to have a severe allergic reaction, which results in significant injuries.
If you file a medical malpractice claim and it goes to trial, it would be up to the jury to determine who was at fault, how much they were at fault, and how much you should be compensated for your injuries. If the jury says that you should be compensated $100,000, but also that you were 15% at fault, then Pennsylvania's comparative fault law would mean you would get 85% of the recovery, or $85,000. On the other hand, if the jury says you should be compensated with $100,000, but that you were 60% at fault, then you would not get anything, even though it was technically medical malpractice.
Damages in Medical Malpractice
As you can see from the idea of comparative fault, the issue of how much you should be compensated for the injuries you suffered from an instance of medical malpractice is not easy. Even after going through the struggle of showing that someone had a duty of care to keep you safe, that they breached that duty of care, and that the breach was what caused your injury, there is still the issue of putting a dollar amount on what you have gone through. Unfortunately, courts are not able to turn time back to before the medical malpractice happened when you were alright and living your life. Instead, the most they can do is put a dollar amount on all of the different types of pain, suffering, and losses that you have gone through.
Collectively, these are called damages. There are two main types of damages, each of which has several subcategories.
One main group of damages are economic damages. These include the costs of treating your injury, the costs of dealing with your injury in the future, as well as the financial losses that you have suffered, as a result of the injury. Economic damages are relatively easy to calculate because they are often already in a monetary format. However, there are still numerous difficulties to account for.
One of the biggest pieces of your economic damages from a medical malpractice injury is your medical expenses. The cost of getting your injury treated and fixed is something that you can recover in a medical malpractice claim – after all, you would not need to treat the injury if it were not for the medical malpractice. While your past medical expenses are relatively easy to show – you have the bills – your future medical expenses might not be. Nevertheless, these future expenses are recoverable, as well.
Another aspect of economic damages is the income that you have lost, as a result of the medical malpractice. The time and energy that you spent recovering from the malpractice likely meant that you were not at work. Because you would have been able to make this income, were it not for the malpractice, your lost wages can be recovered in a malpractice lawsuit. Additionally, the injuries that you suffered may also make it more difficult for you to make money in the future, too. If this is the case, then you can also be compensated for the loss of your future earning potential, as well. This is far more difficult to ascertain, though, because of how speculative it is.
Economic damages accumulate quickly, especially in a serious case of medical malpractice. However, they are only the first of the two kinds of damages that you can recover if your claim is successful.
Non-economic damages include things that are far more difficult to put into a dollar amount, mainly because they are not already in a monetary format. Non-economic damages include things like pain and suffering, as well as the loss of financial support and consortium that your family has gone through because of your injuries.
Compensation for your pain and suffering is difficult to determine, and varies widely depending on the case and even on the jury. While injuries that involve intense and constant pain generally result in higher pain and suffering damages being awarded, some juries take it upon themselves to put a limit on how much you get, often because they think that personal injury victims get too much, already. This worry, however, is mistaken. People who suffer serious injuries from medical malpractice situations deserve all of the compensation that they get. Additionally, there are already damage caps in place in Pennsylvania that prevent victims from being awarded too much in a medical malpractice claim.
Philadelphia Medical Malpractice Attorneys at Gilman & Bedigian
Medical malpractice is a serious issue. Being the victim of the negligence of a medical professional can lead to life-altering or even life-ending injuries.
This is why the attorneys at the Philadelphia law office of Gilman & Bedigian represent those who have been hurt in medical malpractice situations both in and out of court. By fighting for your rights and interests, we can ensure that you get the compensation that you need in order to make a full recovery.
If you or a loved one has been hurt by a medical professional and you think that malpractice has occurred, call our Philadelphia law office at (800) 529-6162 or contact us online to get the help and legal representation you need.