When a doctor makes a mistake that causes serious injury, it can be hard to believe that such things can happen without anything happening to the doctor. If you were injured by a medical error, it is up to you to take your case to court to get money for your injuries. However, if you think the doctor should be punished more severely, it can be difficult to get the state to make an arrest.
In general, you have the right to file a case in civil court to receive money damages for your injuries. In some cases, the court may even award extra money as punitive damages, to punish the doctor for wrongdoing. If you want to know what other legal options you have, talk to an experienced medical malpractice lawyer.
If you were injured because of a mistake made by the doctor or a loved one died because of medical malpractice, Gilman and Bedigian can help. Contact our office today online or by phone at 800-529-6162.
Civil and Criminal Court Systems
There are different court systems in the United States legal system. The two primary types of courts are civil and criminal. Civil laws generally involve disputes between two parties. Civil lawsuits could include landlord-tenant disputes, breach of contract, car accident lawsuits, or a medical malpractice claim. In a civil claim, the filing party is generally seeking money or requires the defendant to do something (or refrain from doing something).
Criminal court involves the government accusing someone of committing a crime. Criminal court can involve traffic violations, theft charges, fraud charges, crimes of violence, or sex offenses. The penalties for losing in criminal court mean that the defendant may have to go to jail or be sent to prison for a few days or up to life imprisonment, depending on the crime.
These court systems are usually very separate and distinct. These different cases may be held in different courthouses. There are different state and federal laws for civil codes and criminal codes. Judges and lawyers generally work in one area of law or the other, but not often in both areas.
Standard of Proof in Civil and Criminal
There are many differences between the civil and criminal courts, including the rights of the accused, court rules, and standards of proof. For example, in order to win your case in civil court, you need to prove your case by “a preponderance of the evidence.” This means that you need to show, more likely than not, that you have proven the elements of your case (anything more than 50% is enough).
With criminal court, the standard of proof is “beyond a reasonable doubt.” That means if there is any reasonable doubt that one of the elements is not met, the defendant should not be convicted. If someone is charged for something that could also be a cause of action in civil court, even if they were not found guilty of the crime, they could still be found liable in civil court.
Right to a Lawyer
Another difference between the court systems is the access to a lawyer. Most people are familiar with the Miranda warnings from TV shows. “You have the right to a lawyer. If you cannot afford a lawyer, one will be appointed for you.” In the U.S., you have the right to have a lawyer represent you in criminal court even if you cannot afford one. This office is known as the public defender.
In civil court, you can have a lawyer but it is your job to find one. If your neighbor is suing you because your tree fell on your property but you can’t afford a lawyer, that might mean you have to represent yourself. There are some options for finding a free lawyer, like legal aid societies, who provide care to some clients, including the elderly, disabled, or immigrants. However, they generally won’t provide services for something like a personal injury case.
Lawyers for medical malpractice cases know that their clients may not have the money to pay for a lawyer upfront. Instead, most medical malpractice law firms offer what is known as a contingency fee basis. This means that you don’t owe anything until you get money. This allows people without a lot of money to access excellent legal representation. This is important when going up against the insurance companies, which have deep pockets.
For example, at Gilman and Bedigian, we only get paid if you are awarded recovery by a jury award or settlement agreement. Make sure you understand the fee arrangement when deciding on an attorney. Feel free to ask us any questions to make sure you know how much money you can recover in your malpractice lawsuit.
Criminal Charges for Medical Malpractice
Criminal charges are very serious for doctors accused of committing a crime. The penalties for a criminal conviction are much more severe, and can include:
- Jail time
- Fines
- Restitution to the victim
- Permanent criminal record
Even if you think you have plenty of evidence to show that your doctor committed a criminal act, it is up to the state to take action to charge someone with a crime. If you believe your doctor committed a crime, you should report it to law enforcement and provide any evidence in support of your case. Unfortunately, if the district attorney does not charge the doctor with a crime, you may have few options. In general, regular citizens do not have the ability to bring charges in a criminal court.
The district attorney may find strong evidence that the doctor did commit a crime but there are a lot of reasons why a prosecutor may not decide to file formal criminal charges. A prosecutor may look at the case and weigh the strengths and weaknesses. For example, if police arrested a doctor during a traffic stop and found evidence that supports criminal charges, the prosecutor may not file charges if it appears the police violated search and seizure laws, which could mean the evidence would be thrown out.
Unfortunately, prosecutors can also bow to political pressure. If a doctor is in a powerful position in the community or is friendly with some powerful government officials, the prosecutor may be pressured to drop the charges. This is not only unfair but unjust. Instead, your best option may be to pursue a civil claim for medical malpractice where you have more of an ability to state your case and recover money for your injuries.
When Can Medical Malpractice Be Considered a Crime?
Medical malpractice is generally a term used in civil lawsuits. However, some medical malpractice could also be considered a crime. Medical malpractice is not a criminal charge by itself but the actions surrounding the malpractice could also be criminal. For example, a doctor who is liable for malpractice may have also committed:
- Assault and battery
- Sexual assault
- Medicare fraud
- Insurance fraud
- Unauthorized practice of medicine
If a doctor physically assaulted a patient or threatened a patient, it may be considered assault or battery. An injured patient may have to report the assault to law enforcement in order for there to be a criminal investigation. However, even if the doctor wasn’t charged or convicted of assault, the injury victim may still be able to recover damages because the standards in civil court are different than in civil court.
Sexual misconduct with patients can occur by doctors and many doctors are allowed to continue practicing even after reports of sexual abuse. According to a report in the Atlanta Journal-Constitution, medical boards often allow sexual misconduct offenders a second or third chance to return to practice, even after the board found evidence of misconduct. Even though there are many complaints for sexual misconduct, few doctors have their medical licenses taken away, even after criminal charges are filed.
When a doctor has engaged in sexual abuse of a patient, it may have to be reported to the medical board and the police. However, even if the doctor is not found guilty, you may still be able to recover money damages for your injuries because of medical malpractice.
Medicare fraud and insurance fraud are not generally associated with medical malpractice. However, some doctors may schedule unnecessary procedures for patients as a way to add additional billing expenses and increase profits. According to an article in USA Today, an estimated 10% to 20% of certain common surgeries are not necessary. Unnecessary medical procedures can be medical malpractice and healthcare fraud.
When a doctor performs surgery that is not necessary, it can be very harmful for patients. Any surgery carries some level of risk, including surgical infection, scarring, and anesthesia errors. An unnecessary surgery may also be a form of lack of informed consent. If a doctor doesn’t truthfully explain the benefits of surgery, the consequences of saying “no” to treatment, or what reasonable alternatives are available, a patient can’t properly make a decision about their healthcare.
Medical Errors in Civil Court
Civil lawsuits are generally started when one party (the plaintiff) files a complaint against one or more other parties (defendants), to settle a dispute. Parties in a civil lawsuit can be individuals, companies, or government agencies. In most civil lawsuits, the plaintiff is seeking money for losses caused by the dispute. However, a civil lawsuit can also seek an order requiring one party to do or not do something.
For a medical malpractice lawsuit, the claim is generally started by the patient/injury victim or an injury victim’s family. The complaint alleges that one or more defendants, usually doctors, healthcare providers, and hospitals, committed medical malpractice. Medical malpractice generally involves a claim that the doctors failed to provide the standard of care that a similar doctor would under the circumstances. Most medical malpractice lawsuits seek money damage for the injuries caused and losses to the victim.
In court, the injury victim will have to show the jury, that more likely than not, the following elements:
- Duty of care: doctors owe their patients a duty of care.
- Breach of duty: doctor breached that duty by deviating from the standards of medical care.
- Causation: the injury was the actual cause and the proximate cause of the patient’s injuries.
- Harm: the victim suffered harm as a result of the doctor’s breach.
To show a breach of care and causation, medical malpractice lawyers generally use the experience of an “expert witness.” An expert witness in a medical malpractice lawsuit is generally a doctor working in the same or a related field of medicine. To qualify as an expert, the individual has to have the knowledge, skill, experience, training, or education to help the jury understand the evidence and determine facts in dispute in the case.
Taking Away a Doctor’s Medical License
You may not be able to get criminal charges filed against a doctor who committed medical malpractice. However, there is still a chance the state board of medicine can do something to prevent the doctor from hurting others in the future. Each state has its own medical licensing board that regulates medical practice. States have their own regulations and rules for licensing, keeping an active license, and disciplinary proceedings.
If a patient makes a complaint about their doctor’s conduct, including medical errors that caused a patient to suffer an unnecessary injury, the medical board can review and investigate the complaint. If the board finds the doctor engaged in unprofessional conduct, including criminal conduct, they can discipline the doctor. Disciplinary options include:
- Fines
- Public reprimand
- Probation
- Licenses suspension
- Revoked medical license
Unfortunately, the medical injury victim may not have much say in whether the medical board takes away the doctor’s license or not. Many doctors continue to practice medicine, even if there is evidence of criminal activity. Instead, your legal options may be limited to filing a lawsuit in civil court, to hold the doctor accountable. This will also be a way for you to recover money from the doctor to pay for your injuries, losses, pain, and suffering.
How Do You Sue a Doctor in Civil Court?
If you want to sue a doctor in civil court, talk to an experienced medical malpractice team about your options. A medical malpractice attorney can look at your case, review your records, and help you file a complaint in civil court for medical malpractice. With an experienced attorney on your side, you can recover the maximum damages for your injuries. Contact a law firm that handles medical malpractice cases like yours. Contact Gilman & Bedigian online or at 800-529-6162 for a free consultation