Update: Medical Malpractice: Doctors Should Be Diligent, Patients Protected
The law is there to protect victims of crimes–negligence, recklessness, assault, and medical malpractice to name a few. When one becomes injured at the hands of another who did not take their best interest into account before acting in a manner that they were aware could cause serious harm, the law stands to provide those victims with justice. Personal Injury lawyers see medical malpractice cases every day, and each one is different. They all have at least one thing in common, however, and that's a victim who has sustained pain and suffering as a result of a negligent doctor.
Thusly, this article will seek to give a broader and more informative look at patient rights after medical malpractice, and provide our readers with what they must know if they've been injured and are considering retaining legal counsel to protect their rights.
The term “medical malpractice” has been used prominently on television shows such as Law and Order or primetime drama staple Grey’s Anatomy. For most of us that’s the only place we’ll ever hear it, and we can be thankful for that. Unfortunately, there are many people who have suffered grave bodily injury at the hands of a medical professional they trusted to care for them, after they became sick or sustained an injury due to an accident.
And this is where the term “medical malpractice” is used outside of the overdramatized world of television and movies. So what does “medical malpractice” actually mean, and most importantly, what does it mean for a victim who has sustained an injury because of a doctor's poor judgement?
The term medical malpractice is defined as:
Improper, illegal, or negligent professional activity or treatment, especially by a medical practitioner.
So how do we define what falls under the very umbrella definition of “improper, illegal, or negligent professional activity or treatment”? For Florida residents, the state clearly defines the guidelines for patient rights, and they include malpractice litigation considerations.
To better understand patient rights, we must first review the Patient Bill of Rights. Patients may be been given a form with these rights printed on it the first time they visit a new doctor’s office, but if they were not, they should ask the office or practice manager to furnish them with a copy.
Within the clearly defined Patient Bill of Rights under HIPAA (Health Insurance Portability and Accountability Act of 1996) there are eight clear-cut sections that explain patient rights:
- Information for patients
- Choice of plans and providers
- Access to emergency services
- Taking part in treatment decisions
- Respect and non-discrimination
- Confidentiality of your health information
- Complaints and appeals
- Consumer responsibilities
The important thing to look at when it comes to medical malpractice in keeping with the Patient Bill of Rights, are respect and non-discrimination and complaints and appeals.
So, next, let’s look at respect and non-discrimination as defined by the law. HIPAA law clearly states:
You have a right to considerate, respectful care from your doctors, health plan representatives, and other health care providers that does not discriminate against you.
If a patient feels they have not been treated with respect and consideration by their healthcare provider, HIPAA law is there to protect them.
When patient rights are violated, the first thing one should do is file a complaint directly with the practice manager to document the date, time, and what occurred between themselves (the patient) and the healthcare provider in question.
This is an important step to establishing well documented evidence that one or more rights as a patient were violated. Without properly documenting the initial interaction with the medical professional, the scenario can escalate unnecessarily and become a long game of he-said she-said. Documentation is exceptionally important should the patient choose to retain legal counsel down the road.
If the patient is unable to document the interaction themselves due to physical impairment or emotional stress, they may ask a trusted family member or friend to write down the events as they can recall them and send them by certified mail to the practice manager with all dates and times clearly defined. Always remember to make a copy and save it for down the road, should an attorney request it.
Furthermore, we'll look at complaints and appeals as defined by the law.
HIPAA law has laid out the following definition for complaints and appeals:
You have the right to a fair, fast, and objective review of any complaint you have against your health plan, doctors, hospitals or other health care personnel. This includes complaints about waiting times, operating hours, the actions of health care personnel, and the adequacy of health care facilities.
In discussing medical malpractice, let’s look at HIPAA’s wording in the above law. The Act states patients “have the right to a fair, fast, and objective review” of any complaint they have in regards to their healthcare. They state “the actions of healthcare personnel, and the adequacy of healthcare facilities” specifically within their explanation of patient rights.
Now that we’ve established the clearly defined patient rights and how they're meant to be enforced, let’s look at how that protects victims of medical malpractice against negligent doctors and other healthcare providers.
Florida’s malpractice law concerns statutes of limitation that dramatically affect victims of medical malpractice crimes. These statutes are strongly enforced and thus make medical malpractice cases a time sensitive issue, should the victim choose to go down the litigation route.
The statues are defined as:
- The law requires the injured party to file a medical negligence case within (2) two years after the initial injury. There is time allotted for counsel to perform “discovery” as to the onset of the injury.
- In respect to the above rule, the state of Florida specifically bans all medical malpractice lawsuits that are not filed within (2) two years of the injurious actions; the event that purportedly gave rise to the injuries.
- However, Florida will make case-by-case exceptions if the injured party is a minor, the patient has been deemed incompetent to stand trial due to traumatic brain injury.
- There are instances when an exception will be made if the medical malpractice was fraudulently concealed to avoid prosecution.
There are several broad definitions of what could ultimately be considered medical malpractice under the law. The following are examples, and your board certified lawyer will always explain the specifics to their client in regards to their specific case.
A medical malpractice lawsuit can be filed due to:
- Unnecessary surgery
- Failure to diagnose, or a misdiagnosis that resulted in the wrong medication, imaging, or surgical procedure being performed, thus resulting in serious injury due to the delay in receiving proper medical care
- Surgical errors; the wrong limb surgically removed or operated on, surgical tools left inside the body
- Improperly dispensed medication resulting in overdose or life-threatening reaction
- Poor or no follow-up care
- Premature discharge from a hospital or rehabilitation facility, resulting in serious injury or death
- Failure of the healthcare provider to order diagnostic testing, or failure to order the correct testing
- Failure of the healthcare provider to recognize symptoms
When a victim suffers any number of these after they place their trust in a medical professional such as a doctor, surgeon, therapist, or nurse, it is important to retain all hospital, office visit, discharge forms, prescriptions, imaging studies and laboratory testing. These will be required materials requested during the Discovery portion of any litigation, and when a Request to Produce is furnished.
Statistics show that medical malpractice results in 200,000 injuries and/or deaths per year in the US. However, not every malpractice case makes it to the desk of a lawyer that will work in the client's favor. Choosing a board certified lawyer after being injured due to medical malpractice is the first step to ensuring the victim won't become a statistic to another "paper pusher" (also known as an attorney that wants as many "wins" as possible without maximum compensation obtained on their behalf). A patient who has been injured by a doctor has rights, and those rights must be protected by a lawyer who has the experience to see the case through to the end; not just on the legal side, but to encourage and support the client as they recover health-wise, as well.