What is Medical Malpractice?
Medical malpractice, also known as medical negligence, occurs when doctors, nurses, hospitals or other health care providers cause injury or death to a patient by failing to meet the accepted “standard of care.” “Standard of care” refers to how similarly qualified practitioners would have managed the patient’s care under the same or similar circumstances.
Medical malpractice can apply to a number of different issues, for example, misdiagnosis, surgical mistakes and failure to treat. The most common scenarios that result in a case of medical malpractice include:
Misread x-ray, CT scan, or other test result
Failure to properly diagnose a condition in a timely fashion
Failure to promptly treat or respond to patient symptoms
Releasing a patient too early
Failure to prevent injury, including falls and bed sores
Mishandling of patient records
Unfortunately, medical negligence occurs all too frequently across the U.S., Indiana, and Illinois, harming families in Lake County, Chicago, Waukegan, and across those states.
If you or a loved one has suffered from a medical error or any medical negligence, a medical malpractice attorney can help review your medical records, research the medical issue, consult experts, explain the legal process, and advise whether your situation has legal merit.
How do I know if I have a medical malpractice case?
Far too often, doctors and other medical providers fail or refuse to answer legitimate questions from a patient or the patient’s family about what went wrong with a procedure, medication or diagnosis. One of the best ways to get the answers you are entitled to is to consult a law firm experienced in medical care and procedures. There are many different indicators of medical malpractice, but one of the most common is a dramatically different or unexpected result of medical treatment. One major warning sign can be the medical provider failing to provide a good explanation when the patient’s condition worsens.
Medical malpractice claims are very complicated to prove – whether you immediately suspect an error due to an obvious indicator, or you are just trying to determine if anyone is at fault.
All medical records must be reviewed, healthcare professionals and medical witnesses consulted, and sometimes follow-up medical exams / tests are necessary. Any statutes of limitations, caps/limits set by state and federal laws and the severity of the injury must also be considered. Because medical malpractice claims are so complex, you should consult an experienced attorney to determine whether your specific situation merits legal action. You have a right to have your medical questions answered.
What should I do if I suspect that malpractice has occurred?
First, if the treatment is ongoing, consider requesting a transfer to another hospital or physician to secure quality medical treatment. Avoid accusing or insulting the health care providers. Request your medical records. Document everything. Most importantly, consult an experienced medical malpractice attorney who can help review your medical records, research medical literature, seek an expert review on the standard of care, explain the legal process, and advise whether your situation has legal merit.
If I have been misdiagnosed is that considered malpractice?
Not necessarily – medicine is not an exact science, and sometimes mistakes are not against the law. However, a misdiagnosis may be considered malpractice if your doctor neglects to:
Get a medical history;
Perform an appropriate physical examination;
Recognize the symptoms of an illness;
Order all appropriate tests for your symptoms; or
Properly interpret, or fully take into account test results.
Some of the medical conditions that are most often misdiagnosed include cancer, fetal distress, heart attacks, pulmonary embolism, infection, stroke, and meningitis in a young child.
Remember that although a misdiagnosis can be very upsetting, unless it has caused injury or physical harm, a medical malpractice suit may have no legal merit.
Is there a statute of limitations for filing a medical malpractice lawsuit?
Yes, the statute of limitations for a medical malpractice lawsuit varies from state to state and normally ranges from 1 year to 7 years. In Indiana and Illinois, the general statute of limitations is 2 years. There are also special statutes of limitation that apply to children and to federal, state and local governments and their agencies. Because of these specialized statutes, you should contact an experienced malpractice attorney if you have a significant debilitating condition or as soon as you suspect medical malpractice in order to protect your rights.
Will I need an expert to prove that I was injured by medical malpractice?
An expert medical witness is almost always required because your attorney must prove what should or should not have been done in your particular case (to demonstrate a deviation from the “standard of care”). In order to establish that standard of care, a professional with the related education, experience and skill is typically required.
Many medical malpractice lawsuits are won or lost based on the effectiveness of the expert medical witness. An experienced medical malpractice lawyer is familiar with and understands which medical witnesses are appropriate for specific types of medical situations. Here at Hilbrich Law Firm, we have the resources to locate and consult such experts.
If I signed a waiver or consent form, have I waived my rights?
All medical treatment must be provided with the patient’s informed consent, except in cases of extreme emergency. Patients sign a general consent form upon hospital admission and a more specific consent form prior to an invasive procedure or operation. These forms indicate that the doctor has fully explained the medical problem, treatment and common risks to the patient, and that the patient had an opportunity to ask questions. However, if a doctor fails to provide the appropriate standard of care, a signed consent form does not waive a patient’s right to bring a medical malpractice claim.
Can I find out if my doctor has had any medical malpractice claims?
Yes. In Indiana, those claims are found on the website of the Indiana Department of Insurance at www.indianapcf.com.
If you want to find out if a physician has any malpractice suits or complaints on file in any other state, contact the state medical board for more information. Keep in mind, however, that states vary and some medical boards cannot release this information to the public. For a listing of state licensing boards, visit the Federation of State Medical Boards’ main web site: www.fsmb.org and select the “State Medical Board Info” link.
Can I get a copy of my medical records?
Patients have a legal right to obtain copies of their medical records. Typically you just need to submit a written request to the medical facility where you received treatment. This request will generally include your name, your date of birth, address, and any applicable patient numbers. Start by contacting the medical facility and asking if they have a request form and to whose attention you should send the completed request. Note there is often a per-page copy charge for your records. We recommend you request an electronic form which may save costs.
What type of settlement can I expect if I have been a victim of medical malpractice?
Damages for medical malpractice vary depending on the individual, the injury and circumstances. There are also laws that limit total compensation amounts depending on the injury. Compensation may cover medical bills, pain & suffering, lost wages, lost earning potential in the case of permanent disability or wrongful death, lifetime care benefits, and other expenses that result from the malpractice.
There are many factors that affect a settlement/compensation amount – an experienced medical malpractice lawyer can determine the amount of compensation you are entitled to and help protect your interests in a malpractice claim.
My child has been diagnosed with cerebral palsy, and I want to know if that was caused during the labor and delivery process?
It is well documented in the medical literature that a significant number of children are born each year with brain damage resulting in cerebral palsy and other types of brain damage directly caused by medical negligence during pregnancy and during the labor and delivery process.
One of the most common types of this medical negligence is the failure by the nursing staff, medical residents and obstetricians to monitor the baby’s fetal heart status during labor. In almost every labor, your baby’s heart status should be monitored with an external or internal fetal heart monitor. This monitor prints out data that allows the medical care provider to suspect or know that your baby may not be tolerating the stresses of labor, and so a delivery by c-section is needed. Unfortunately, it is too often demonstrated that nurses, residents, and even some doctors are either incompetent or do not take the time to properly interpret the fetal heart monitor data. This can result in the profound tragedy of infant brain damage which could have been completely avoided.
Other medical errors that can lead to bleeding in the baby’s brain, oxygen deprivation to the baby’s brain, or other brain damage to the baby include the misuse of the drug Pitocin during the labor process, the misuse of forceps or a vacuum extractor during delivery, and a failure to recognize that the labor process is simply taking too long.
Often the specific diagnosis of cerebral palsy is not made until a number of years after birth. Parents recognize that their child is not meeting the usual milestones for physical or mental development, but they do not get satisfactory answers from their pediatrician regarding the cause of this delay or whether the delay is related to something that occurred during pregnancy or the birth process. An experienced medical malpractice attorney can help determine whether these delays are due to birth injury or medical negligence.
Unfortunately, there is too often a lack of communication between the labor and delivery nurses and the obstetrician. Sometimes the obstetrician is simply too busy with other matters to be in attendance during the critical times of the labor. Other times the obstetrician may inappropriately rely upon residents who do not have the same experience and knowledge as the obstetrician. Often a parent can sense that something is going wrong even when none of the medical care providers are being candid about what might have occurred. Labor and delivery is a stressful and complex time for your baby. Sometimes, things can go wrong which have absolutely nothing to do with medical negligence. But if you have a suspicion that may have occurred which resulted in damage to your baby, you have an absolute right to have the issues investigated. The best way to get your questions answered is to use an experienced medical malpractice attorney to conduct an outside/independent expert review of the medical record, including the fetal heart monitor strips.
Our daughter has really not used her right hand or arm since she was born. Our pediatrician tells us that this should go away with time, but we are becoming more and more concerned. Was this result of medical negligence, and can we do anything about it?
What you are describing sounds like an injury to the brachial plexus nerves in your child’s arm. A stretching or avulsion of these brachial plexus nerves is often caused by what is known as shoulder dystocia at the time of delivery. This is where your child’s shoulder does not deliver spontaneously after the head is delivered. This can result in an Erb’s palsy or a Klumpke’s palsy to your child’s arm which can limit not only the use of the arm, hand and fingers; but can also result in a shortening or other deformity of the arm as your child grows. While your pediatrician is correct that most of these injuries will correct themselves during the first year or so of life, it is very important that your child receive expert diagnosis and therapy early in life to maximize the chances for recovery. In the past few years, specialized surgical procedures in specialty centers around the country have also been developed to help with recovery.
Shoulder dystocia is a recognized complication that all obstetricians and labor and delivery nurses are or should be aware of. Sometimes dystocia can be anticipated and an injury avoided. For example, it has been established in the medical literature that mothers suffering from gestational diabetes, shoulder dystocia in a prior pregnancy, or other risk factors have a higher incidence of shoulder dystocia. When this is recognized and treated by such things as maternal diet, ultrasonic monitoring of the fetal growth, an elective c-section delivery, injury to the baby can be avoided.
When shoulder dystocia is encountered, labor and delivery nurses as well as obstetricians should be fully trained in the maneuvers that can be employed to safely deliver the baby. Unfortunately, in this day and age, the delivering physician is often someone who the mother has never met during the prenatal care or even during most of the labor, and that physician is taken by surprise when a dystocia occurs. This can sometimes result in excessive traction or force being used to deliver the impacted shoulder resulting in an injury to the brachial plexus and a condition of Erb’s palsy or Klumpke’s palsy to the baby. Not surprisingly, parents often suspect or somehow know that something was just not right during the maneuvers and delivery following the shoulder dystocia.
My wife complained to her gynecologist for more than a year about excessive discharge and bleeding. Her gynecologist assured her that Pap smears were normal and that nothing else could be done. My wife has now been diagnosed with Stage IV ovarian cancer. Why didn’t the Pap smear show something, and what else could her gynecologist have done?
Unfortunately, while there is no doubt that women of a certain age should be receiving regular Pap smears, the limitations of a Pap smear in diagnosing the early stages of cancer are well known in the medical community. It is for this reason that a gynecologist needs to pay close attention to the complaints and symptoms of a patient. In certain cases, a Pap smear is simply not sufficient to diagnose early cancerous changes, and a gynecologist could be responsible for failing to order further diagnostic tests.
I drove my husband to the Emergency Room with chest pain. We sat there for more than two hours before my husband was finally examined. By that time the chest pain had basically gone away, and my husband was simply told to follow up with his family doctor the following week. Unfortunately, my husband died from a heart attack before he could be seen, and our family doctor told us nothing could have been done to prevent the heart attack. Is this true?
While it is true that every heart attack or stroke cannot be prevented even with the best medical care and treatment, your question can only be answered after an expert review of the medical record in this case. This would include a study of such things as your husband’s health history, the complaints he made in the ER, and the type of questions that were asked and tests that were run by the medical staff in the ER. The loss of a loved one is a difficult and tragic enough event without the added burden of wondering whether the loss could have been prevented by proper medical care. An evaluation by a qualified medical malpractice attorney and independent expert review should be able to answer that question one way or the other. If there was medical negligence, then appropriate action can be taken. If there was no negligence, you will at least be able to put that one concern to rest.