Medical Malpractice & Hospital Negligence Lawyer

Compensation for Medical Malpractice Lawsuits

There are two types of damages available in medical malpractice cases: compensatory damages and punitive damages.

Compensatory damages are designed to compensate. To the extent possible, these types of damages are meant to make the person as "whole” as they were before the incident occurred. Generally, these damages can be broken up into two sub-categories:

1. actual damages (economic); and
2. general (non-economic) damages.

Actual Damages

Actual Damages seek to reimburse a plaintiff for financial losses sustained and typically include:

1. Medical Expenses - Medical and hospitalization bills incurred to treat your injuries.
2. Wages or Loss of Income - lost due to work missed while you recuperate.
3. Life Adjustment Costs - Costs of household or nursing help during recovery, including costs of wheelchair or crutches required.

General Damages

General damages can, in addition to actual damages, be sought by malpractice victims and are designed to cover things that cannot be assigned an accurate dollar amount.

General damages are awarded if the plaintiff experiences significant and continuous pain and suffering:

1. Pain and suffering - endured due to injuries and any subsequent mental anguish.
2. Disfigurement.
3. Value of medical expenses you are likely to incur in the future.
4. Value of wages you are likely to lose in the future.
5. Loss of consortium (benefits of a relationship).
6. Loss of normal life.

Punitive Damages

In certain cases, punitive damages, also known as exemplary damages, may be awarded. Punitive damages are not based on actual injuries sustained. Instead, they are a way to punish the medical professional for intentional or grossly negligent conduct that caused the injury to the plaintiff. Although it is fairly uncommon to see punitive damages in a medical malpractice case, it does occur with some regularity.

One example where punitive damages may be appropriate is when the victim is able to prove that she was not provided with proper informed consent (e.g. by surgeon before operation, or anesthesiologists before consenting to going under before a procedure). Other such examples of medical malpractice so shocking that courts have awarded punitive damages include, but are not limited to:

• Misrepresentation or fraud regarding surgery;
• Improperly performing a surgery or providing follow-up care following surgery;
• Improper administering drugs or anesthesia;
• Manipulation of medical records; and
• Failing to perform adequate tests in establishing the health of a child.

Statute of Limitations in Medical Malpractice Personal Injury Lawsuits

When a person suffers injuries because of a healthcare provider’s error or negligence, the injured patient may be eligible to file a medical malpractice lawsuit. However, in each medical malpractice claim, it is extremely important for the patient to understand that the statute of limitations limits the amount of time they have to file a malpractice lawsuit. Each state has its own medical negligence laws that defines the statute of limitations for filing a medical malpractice claim and for defining “what is malpractice.”

How does a medical malpractice statute of limitations work? The statute of limitations is a time window for filing a lawsuit. Typically in personal injury cases—including most medical negligence claims—the clock on the statute of limitations starts “ticking” on the date that the patient suffers the injury. If the patient fails to file a medical malpractice lawsuit by the time the clock runs out, then that patient’s claim will likely be time-barred.

Each state has its own medical negligence laws and state-specific statute of limitations for filing a medical malpractice claim. Under New York law, for example, the medical malpractice statute of limitations is two and a half years. Under New Jersey law, the statute of limitations is two years.

For example, if a state’s statute of limitations for medical malpractice claims is two years, for most patients the clock will begin “ticking” on the date of the injury, which may be the date the patient had surgery or received an incorrect diagnosis. Then, in most situations, the patient will have two years from that date to file a lawsuit. However, medical malpractice claims can be particularly complicated when it comes to the statute of limitations since sometimes patients do not realize they have been injured until months or even years after the initial injury. Accordingly, many states have special provisions when it comes to the statute of limitations in medical malpractice cases.

Exceptions to the Statute of Limitations for Certain Medical Malpractice Cases

In many states, the medical malpractice statute of limitations is lengthened in cases where the plaintiff was a minor, or in situations in which the plaintiff would not have reasonably known about the injury until  some time had passed after the initial medical error occurred.

Under New Jersey law, a patient has two years to file a medical malpractice lawsuit from the date that he or she discovered—or reasonably should have discovered—that they suffered an injury due to medical malpractice. For instance, if a patient underwent a surgical procedure and the surgeon accidentally left a sponge inside the patient’s body, it may take months or even years for the patient to show signs of a foreign object being left inside his or her body. In such a case, the statute of limitations would start tolling when the patient discovered that there was a foreign object left in his or her body during surgery.   Other examples might include delayed or missed diagnoses that led a condition to worsen significantly over time without the patient realizing that they received a wrong diagnosis until a later date.

If you need help determining whether you have a medical malpractice case, and if you will be able to file your claim within your state’s statute of limitations for filing a claim, you should get in touch with a medical malpractice attorney about your case.

Common Forms of Medical Malpractice and Negligence

Medical malpractice and negligence do not occur every time medical treatment results in a bad outcome.  The law generally recognizes the practice of medicine as an “art” rather than as an exact science. Therefore, some latitude is given to practitioners concerning the way they choose to address the problems of specific patients. However, the fact remains that every day, patients across the country experience medical misconduct or receive substandard medical care that leads to serious injury, illness, or death.

Some of the most common medical malpractice suits are brought due to the following forms of misconduct:

• Medication & Surgical Errors: Many healthcare professionals make mistakes when providing treatment to patients.  This includes medication errors, when medication is improperly administered, as well as surgical errors.   Patients aren’t guaranteed that their medical issues will be resolved after treatment.  However, if a situation is made worse because of negligent acts by a medical professional, then the patient has a right to hold the medical provider accountable.
• Diagnosis Errors: Medical malpractice can also include situations where a doctor fails to act at all.  When a patient visits a doctor complaining of certain problems, the medical professional must act appropriately to try to determine the underlying medical issue.  Yet, sometimes doctors misdiagnose the problem, delay in providing a diagnosis, or fail to diagnose a condition altogether. All of these may be examples of medical malpractice.
• Consent Issues: The law demands that patients be informed of their treatment options and that they willingly consent to that treatment.  Medical malpractice may occur in violation of this requirement in one of two ways.  First, a doctor may act against a patient’s direct wishes.  Second, a patient may not be made fully aware of the details of their treatment before agreeing to it.
• Birth Injuries: Birth related medical malpractice occurs when hospital staff members act negligently or fail to use reasonable care, causing injury to the mother or child during pregnancy or delivery.
• Medical Records Errors - If an employee of the hospital or other staff member makes an error when reading from or writing a patient’s medical record, the patient may ultimately receive an incorrect medication or dosage. Dosage errors can cause internal damage, seizure, and significant long-term injuries. This form of malpractice occurs in many hospital negligence cases.

Brain Injuries Commonly Misdiagnosed 

Brain injuries are a part of a “silent epidemic” that is slowly gaining attention. Why are TBIs described in this way? Because those suffering from these injuries often do not look sick (and thus suffer silently from the aftermath of a head trauma), and doctors often admit that they do not have a very clear understanding of brain injuries. In fact, the president of the Brain Injury Association of America (BIAA) describes traumatic brain injury as “the most misunderstood, misdiagnosed, underfunded health problem our nation faces.”

According to Dr. Ali Ganjei, a specialist in physical medicine and rehabilitation, patients with brain injuries often stump emergency doctors. Dr. Ganjei states: “People would have a concussions, they’d be out for an hour or so, then regaining consciousness, and we’d think everything was okay. If the person later had difficulties, we never linked it to that head injury.”

Given the complexity of TBIs, many of these injuries are often undiagnosed. An article in the journal Health & Social Work indicates that around 60% of brain injuries may go undiagnosed in the US. Moreover, mild TBIs are sometimes misdiagnosed, for instance, as some of the following conditions:

• Balance problems;
• Neurological disorders;
• ADHD;
• Concentration disorders;
• Depression; and
• Stroke.

Dangers of Misdiagnosis 

The reason that so many TBIs are misdiagnosed may have to do with the rate at which symptoms appear. According to an article in the journal Biofeedback, the symptoms of TBI tend to progress very slowly. Indeed, long-term effects of a mild head injury may not appear for weeks after the initial trauma. As such, it can be difficult to immediately acknowledge that TBI symptoms are linked to a previous injury.

According to a report from the National Center for Policy Analysis (NCPA), “misdiagnosis by physicians is a serious and common occurrence in the health industry.” How often does misdiagnosis occur? Based on data from Kaiser Health News, the NCPA reported the following statistics:

• Between 10 and 20% of all patients are misdiagnosed, meaning that misdiagnosis is a problem that is statistically larger and more significant than prescription drug errors and surgical errors.
• It is possible that nearly 30% of all diagnostic errors are life-threatening or actually result in the death of the patient.
• Fatal diagnostic errors, by the numbers, equal around the total number of deaths from breast cancer on an annual basis.

Get the Facts About Medication Errors

Medication errors are a common type of medical error that can result in a patient injury and a medical malpractice claim. The following is information about medication mistakes from the U.S. Food and Drug Administration (FDA): 

• Medication errors are defined as “any preventable event that may cause or lead to inappropriate medication use or patient harm while the medication is in the control of the healthcare professional, patient, or consumer”;
• Many different types of healthcare providers can be responsible for medication errors, including physicians, surgeons, pharmacists, and even assistants entering drug information into an electronic system;
• More than 100,000 medication error reports are logged by the FDA every year; and
• Common types of medication mistakes include dispensing the wrong medication, dispensing the wrong amount of a medication, and failing to consider patient allergies or drug interactions.

How Common are Surgical Errors

While most surgeons perform a “sweep” of the patient’s body after surgery and nurses perform retaining surgical sponge counts, those “sweeps” and counts are often inconsistent, and a surgeon or nurse might not even realize that a surgical error in the operating room has been made. In fact, a study conducted last year concluded that “about 88% of retained surgical item cases occurred during a procedure in which retaining surgical sponge and instrument counts were declared ‘correct,’ suggesting human error.” Experts emphasize that hospitals need to develop practices that account for human error in counting methods and to implement these practices as soon as possible.

How often do surgery errors occur, and what types of surgical mistakes are most common? The following are facts and figures from the Patient Safety Network:

• Most surgical errors are defined as “never events,” and they are often discussed as “wrong-site, wrong-procedure, wrong-patient errors,” or WSPEs;
• Wrong-site surgery is the most common type of surgical error in most U.S. hospitals;
• There are multiple types of wrong-site surgery errors, including wrong-side errors (about 59%), and correct side but wrong-site error (about 23%); and
• Wrong-procedure errors account for about 14% of all surgical mistakes.

How to Prove A Medical Malpractice Case

Bringing a medical malpractice claim can be a powerful tool to hold negligent doctors and medical professionals accountable for negligent behavior.

Should you choose to bring a lawsuit claiming that a medical professional was negligent, the first thing you must demonstrate is that the defendant had a duty of care toward you. This means that the medical professional who hurt you had a pre-existing legal relationship with you. Not surprisingly,  doctors and other healthcare providers owe a duty of care to their patients.

When they breach (or violate) that duty of care and harm a patient, the result is medical malpractice. Proving a malpractice claim begins with determining whether the case meets the requirements under state law.

The following elements must be met:

• Proof of doctor-patient relationship
• Proof of negligent care
• Proof that negligent care led to injuries or illness
• Proof of specific damages

A medical malpractice attorney will obtain the doctor’s notes and hospital records, establishing that the medical professional treated the patient. This proves the doctor-patient relationship.

Examples of healthcare providers with a duty of care to the patient can include:

• Nurses
• Nurse Practitioners
• Hospitals
• Lab Technicians
• Radiologists
• Anesthesiologists
• Doctors
• Physician Assistants

Doctors and other providers fall short of their duty of care when they:

1. Fail to diagnose accurately
2. Fail to treat properly
3. Prescribing the wrong medication
4. Failure to warn of treatment risks

Your attorney will gather evidence by taking testimony from witnesses and obtaining records relating to your care. Your attorney must also prove in a medical malpractice case that the healthcare provider’s acts were the direct or proximate cause of your injury.

Your attorney will engage a medical expert to review the records in your case who will provide an opinion if the care you received from your doctor fell short of applicable professional standards.

• For example, in a situation where your doctor did not perform a biopsy and you were misdiagnosed because they failed to obtain a necessary biopsy given your symptoms and test results, the expert may conclude that the doctor misdiagnosed you, causing your illness to go untreated and worsen.

Sometimes the proximate cause is straightforward. The law calls this res ipsa loquitur, or “the thing speaks for itself.” For example, the surgeon is supposed to operate on your right leg but performs surgery on your left. Or, during surgery, the doctor leaves an object in your body, causing pain and necessitating another surgery.

Get a Free Consultation from a Medical Malpractice Attorney

If you or a family member might have been hurt by inadequate medical care, it is important to reach out to a medical malpractice lawyer to learn about your options.  You may not know for sure whether you have a medical malpractice suit, but the first step is meeting with an experienced medical negligence attorney, sharing your story, and learning more.

The medical malpractice lawyers at The Rothenberg Law Firm LLP can provide the experienced legal advice you need.  We have law offices located in Pennsylvania,| New York, and New Jersey.

It is important to act promptly. Statute of limitations laws limits the amount of time that an injured individual can file a lawsuit to seek justice and financial compensation for his or her damages.

It is impossible to make generalizations about the value of any wrongful death or personal injury case without knowing the details of the injuries and how the abuse took place. The law allows recovery for a wide range of situations, many of which may not be readily apparent to the injured party. This includes past medical bills, future medical treatment and rehabilitation costs, therapy, lost past wages, lost future income, punitive damages, pain and suffering, and more. An experienced personal injury attorney will fight to obtain money for you to compensate you for all of your damages, past, and future.

The personal injury lawyers at The Rothenberg Law Firm LLP can be reached at 1-866-771-4988 or you can contact us for a free initial consultation by filling out a case evaluation form. If we agree to handle your medical malpractice claim, there is no legal fee unless we are successful in getting you monetary compensation.