Going to the doctor is an expected part of life at any age. We all need medical treatment at different times in our lives, and the US has a thriving community of highly educated, hard-working, and responsible medical care providers to supply this much-needed treatment.
Though they have years of education and practice, doctors are as prone to human error as much as anyone else. When something goes wrong as part of a medical treatment or procedure, whether that be benign or severe, done out of genuine error or malice, we refer to this as malpractice.
In the event of a malpractice lawsuit, questions will arise, and answers will be needed as to provide clarity to a case. Here, we’ll define and demystify some of the finer points of a malpractice personal injury case to help you understand what to expect should you seek legal representation within the state of Oregon.
What Constitutes Medical Malpractice?
Unfortunately, doctors and other healthcare professionals sometimes make mistakes. At other times, patients simply don’t get the results for which they had initially hoped. So, if a patient endures a bad medical treatment outcome, does that mean that medical malpractice occurred?
The answer is sometimes “yes,” and sometimes “no,” depending on whether the medical care provider has met the applicable standard of care. For anyone who feels they may be entitled to damages from an injury resulting from medical malpractice, it’s important to understand what constitutes malpractice in a medical setting.
When Does Medical Error Become Medical Malpractice?
Healthcare continues to be a topic of great debate in the United States, with our system drawing both praise and criticism from politicians and citizens, alike. Many complain about a lack of access, affordability, and uneven outcomes. Others praise the quality of care and compassion of practitioners. But regardless of one’s opinion in the political debate, statistics demonstrate that medical errors occur with sufficient frequency to concern us all. After all, some researchers have concluded that medical errors are the third leading cause of death in the United States, resulting in between 210,000 and 400,000 preventable deaths every year.
While it is true that some “medical errors” do not rise to the level of malpractice, and while we are quite certain that most healthcare workers are compassionate, hard-working, well-meaning providers, it is nevertheless alarming to consider these statistics and the potential for harm to ourselves and our loved ones.
Considering the Terminology of “Medical Error” and “Medical Malpractice”
We all know that the complex terminology in both the medical and legal fields can be confusing. This can be especially true when terms are used interchangeably and when there is not a universally accepted definition of a term. Many articles and papers refer to “medical error” without fully defining the term. The United States National Library of Medicine defines “medical errors,” in part, as “errors or mistakes committed by health professionals which result in harm to the patient.” The definition further states that a “medical error” results from a mistake or accident, while “medical malpractice” results from negligence or intent.
However, from a legal standpoint, this definition is lacking because a mistake or accident may indeed constitute medical malpractice. The real question is whether the action or omission constituting the “medical error” violates the applicable standard of care, and whether a patient is harmed as a result.
Standard of Care in Medical Malpractice Cases
Any person who pursues a medical malpractice case must prove several elements, including that the healthcare practitioner violated the applicable standard of care, and that the violation caused harm to the patient. A doctor or other practitioner must act with the same level of skill and care that other doctors would exercise under similar circumstances and in the same community.
So, for example, if a surgeon’s action harms a patient, but other surgeons agree that the surgeon followed the appropriate protocol, there likely would be no medical malpractice. On the other hand, if the surgeon did not follow standard procedure, he could be found liable for medical malpractice.
Harm to Patient
As mentioned above, harm to the patient is also a required element in a medical malpractice case. Suppose that a doctor prescribes an incorrect medicine, but the person who takes it does not suffer any adverse consequences. While the doctor may have committed a medical error, there is no case for medical malpractice because the patient is not injured.
Is the Threat of Medical Malpractice Enough to Protect You and Your Loved Ones?
In our opinion, holding professionals accountable for their negligence is an important deterrent to malpractice. Unfortunately, however, the statistics shared above suggest that it is not enough. In an illuminating article, Dr. David Katz explores some of the dangers associated with hospitalization. Dr. Katz suggests that some negative behaviors, which should not be tolerated, are actually protected by and accepted into the standard of care because the behaviors have become common and accepted. The article suggests some helpful hints for protecting your loved ones in the hospital. Topping the list is the suggestion of constant and vigilant monitoring of your loved ones while they receive care.
Why the Difference Among States?
Unfortunately, this question is virtually impossible to answer at this time. Medical malpractice laws vary from state to state, across the country. This certainly has an effect. Similarly, the opinions, beliefs, and actions of victims, medical practitioners, and politicians all play a role, and these factors vary throughout the nation.
Assessing the effect of these legal and cultural differences is difficult. The number of doctors in a state, the degree to which victims are aware of their rights, political and cultural beliefs surrounding litigation, and other factors can all affect these results. Hopefully, research will provide a better answer in the future.
While we sometimes place dentists and doctors in slightly different categories, they’re both still responsible for the health and well-being of their patients. Errors or negligence in a dental setting are still referred to as malpractice, and dentists can still be held liable.
Examples of dental malpractice include the improper extraction of teeth that leads to nerve damage or infection, improper use or administration of anesthesia, neglecting to properly diagnose a serious disease or infection, failure to obtain informed consent, and other similar situations.
Malpractice involving a nurse, rather than a doctor, comes with a host of nuances. Nurses are usually at the forefront of patient care, and cases of nursing malpractice are sometimes considered separate from malpractice in other senses.
Examples of Nursing Negligence
Professionals can commit negligence in many ways – both by acting and by failing to act. Here are a few examples of negligence in the field of nursing.
Medication errors: Medication errors can occur in many ways. For example, a busy nurse with multiple patients can give the wrong medication to the wrong patient. Medication errors can also occur when a nurse gives the correct medication in the wrong dosage amount, or fails to give the required medication.
Failure to properly assess condition: Nurses take a variety of vital signs from their patients. They also communicate with these patients to obtain information about their conditions. As medical professionals, nurses are trained to evaluate all of this information and take appropriate steps in response. A nurse can commit malpractice by failing to recognize emergencies or taking the appropriate steps demanded by the circumstances.
Negligent communication: Negligent communication can arise through either a failure to communicate or communicating information incorrectly. For example, as a nurse monitors a pregnant mother, the nurse may observe signs that suggest fetal distress or other problems that should be immediately communicated to the doctor. Failure to do so can result in harm to the mother and/or child. Similarly, communicating incorrect information to a doctor can result in incorrect treatment and resulting harm.
Malpractice In Birthing Procedures
For humans, giving birth is extremely complicated. While doctors, nurses, and midwives are extremely skilled in their field, mistakes can be made.
Nursing Malpractice During Birthing Procedures
Few events mean as much to families and society as the birth of a child. Thus, it is not surprising that the American healthcare system devotes substantial resources to facilitating healthy pregnancies and successful childbirth. In addition to doctors, hospitals, and other elements of the healthcare system, nurses play a vital role in the process.
Most pregnancies turn out successfully, resulting in a healthy mother and the birth of a healthy baby. Unfortunately, however, mistakes are sometimes made. Medical malpractice, including nursing negligence, can cause substantial harm, and even death, to babies and mothers.
The Role of Maternity Nurses
While doctors are generally responsible for the actual delivery of a baby, nurses often have more interaction with pregnant mothers in the earlier stages of childbirth. Nurses offer support, education, and encouragement. Some nurses are involved in prenatal care.
Maternity nurses play an important role in monitoring a patient during labor. This includes checking the cervix for dilation and monitoring the vital signs of the parent and child. The nurse communicates carefully with the parent, monitors pain and other symptoms, makes medical evaluations, and communicates with doctors.
This is especially important if the birthing parent is experiencing complications. Maternity nurses are also often responsible for administering medications.
Midwives are certified professionals who help care for patients during pregnancy and childbirth. They’re meant to educate patients and assist them, allowing for better decision-making during the childbearing process. They can be extremely helpful in the process – however, as licensed caregivers, they’re required to meet the applicable standards of care.
Medical Malpractice Law
The laws surrounding malpractice can be difficult to navigate. While every case is complex and different, there are a few things we can help to illuminate in a general sense.
What Constitutes Malpractice in a Medical Setting?
Oregon Revised Statutes Annotated Section 677.095 requires a licensed physician to use the degree of care, diligence, and skill used by ordinary physicians under the same or similar circumstances in the physician’s community, or in a similar community. In legal terms, the degree of care which a physician must exercise is called “the standard of care.” Expert witnesses are used to establish the standard of care and whether it has been breached.
Under Oregon Rule of Evidence 702, a witness may testify as an expert if he or she has specialized knowledge that will assist the jury, so long as the witness is qualified by his or her education, training, skill, experience, or knowledge. Usually, because complicated medical information is involved, it falls on other doctors (as witnesses) to establish the appropriate standard of care in a medical malpractice case.
However, in one interesting case, the Oregon Supreme Court reversed a trial court’s decision not to permit a biomechanical engineer to establish the standard of care in a medical malpractice case. In that case, a neurosurgeon attached a titanium plate to the patient’s cervical spine. Following the procedure, the patient experienced many health problems and had six additional surgeries, including one to remove the titanium plate.
Even though the biomechanical engineer was not a medical doctor, he testified to the following: that his profession overlaps with neurosurgery, that he taught in the department of orthopedic surgery in a medical school, and that he had developed his own implant system for spinal surgeries. The Supreme Court found that the engineer had the appropriate background to provide expert testimony in the case, including his opinion that the neurosurgeon incorrectly installed the plate and improperly left screw heads protruding.
Damages and Insurance
Victims of medical malpractice are entitled to recover “economic” damages such as medical bills, medicine costs, and lost wages. Victims are also entitled to recover “noneconomic” damages such as loss of consortium and pain and suffering. While it is not the purpose of this article to discuss damages in great detail, please call us with any specific questions regarding damages, and one of our experienced medical malpractice attorneys will be happy to assist you.
Most doctors, hospitals, and other medical care providers carry malpractice insurance. This insurance pays damages in the event that a medical care provider is found liable for injuries to a patient. The insurance policies also provide one or more lawyers and a legal defense to the insured who has been sued. Therefore, settlement discussions and other communications often occur with the insurance company and lawyers, as opposed to the doctor or hospital.
We have found through the years that insurance companies will vigorously defend most medical malpractice cases and attempt to limit the damages paid to the injured patient. Moreover, the lawyers hired by the insurance company are usually experienced and formidable. Therefore, you should strongly consider consulting with your own legal counsel before attempting to pursue a malpractice claim or negotiate a settlement. At Nelson MacNeil Rayfield, we have a successful history in negotiating settlements with insurance companies and winning medical malpractice trials.
Making A Claim
Armed with an understanding of what constitutes medical malpractice, you may be interested in pursuing a claim yourself. If you have any questions regarding an injury that may have resulted from possible medical malpractice, it is important to consult with a skilled malpractice attorney promptly. Oregon has a two-year statute of limitation for medical malpractice claims. Therefore, an investigation of the potential claim should start even earlier.
Given the complexity of medical malpractice claims and the need for expert testimony to prove a violation of the standard of care, Nelson MacNeil Rayfield thoroughly investigates all of our potential medical malpractice cases before making a final decision on whether a lawsuit is warranted. We use our own knowledge, along with the input of appropriate medical professionals, to determine if the case should be pursued.
Rights of Injured Patients
Medical professionals, including nurses, are required to meet the applicable standard of care. If a nurse fails to act as a reasonable nurse would have acted under the same or similar circumstances, the nurse has not met that standard of care. If the nurse’s negligence causes harm to the patient, the patient is entitled to recover appropriate damages.
How Can I Avoid Medical Malpractice?
Because medical malpractice takes many forms, it may seem difficult to be fully prepared for it; especially because medical emergencies often take us by surprise. The most important thing you can do is communicate with your doctor. Ensuring your relationship with your doctor is strong and making sure that they completely understand your illness or injury can make a lot of difference.
Communication-related errors are the single biggest reason that medical malpractice occurs. On top of clear and consistent communication, it’s important to make sure you have your doctor’s recommendations in writing. Often, people listen to their doctors without fully understanding. Your doctor should be documenting all your treatments. If possible, take that documentation to another doctor and seek a second opinion.
If you’re facing an especially risky surgery, do some basic research to make sure your doctor hasn’t had many malpractice claims before. There are resources available online that’ll help you determine whether you’re in good hands.
How Common is Medical Malpractice?
True medical malpractice cases are frighteningly common. In hospitals all around the country, medical errors happen all the time. In fact, medical malpractice is the third leading cause of death in the United States. Even though fewer than one percent of hospital patients are victims of medical malpractice, 25,000 to 125,000 Americans die every year because of medical negligence. Medical errors are so common because they are very easy to make.
Hospitals, especially large ones, require a lot of communication and coordination between doctors, nurses, and other hospital staff to provide care to so many patients. If any of these people make a mistake or is negligent, medical malpractice is likely to occur. While this isn’t always deadly, it can easily lead to negative patient outcomes.
The most common forms of medical malpractice are surgical errors, anesthesia errors, misdiagnosis or missed diagnosis, and medication errors. While some of these types of medical malpractice are easier to avoid than others, it’s important to understand your options. Understanding the common forms of medical malpractice can be beneficial because you’ll know what questions you should be asking if you’re ever in a similar situation.
Medical Malpractice in Oregon
Every day healthcare professionals play an important role in the well-being of our citizens in Oregon and across the United States. Dedicated doctors, nurses, dentists, pharmacists, and other practitioners work hard to help us maintain optimal health, whether treating acute issues, chronic problems or providing emergency care. It’s difficult to overstate the value of professionally-delivered health care.
Unfortunately, we also know that every day there are healthcare professionals who provide a deficient level of care, which fails to meet the standards set by the law and by society. The results of this deficient care can cause tragic harm, and even death, to patients. The best way society can discourage negligent performance by all professionals is to hold them accountable for their wrongful conduct.
Medical Malpractice Reported Around the Nation
Below, we discuss medical malpractice statistics based upon two different measures. The first relies upon the collection of reports filed by medical care providers (including various entities). Of course, unreported medical malpractice would not be captured in these numbers. The second measure is based upon the number of medical malpractice lawsuits filed across the nation.
National Practitioner Data Bank
Pursuant to federal law, the U.S. Department of Health and Human Services created and maintains a National Practitioner Data Bank (NPDB). The law requires specified health care practitioners and entities, such as hospitals, to file Medical Malpractice Payment Reports and Adverse Action Reports (AARs). “Adverse Actions” include limitations on: membership in professional societies, clinical privileges, licensure, and Medicaid and Medicare exclusions. NPDB research statistics combine data from 2006 through 2016. A final total is provided for every state.
First, 143,713 Medical Malpractice Payment Reports and 433,151 Adverse Action Reports were filed across the nation. Oregon accounted for 1,359 Medical Malpractice Payment Reports and 9,001 Adverse Action Reports. Some states had many more reports than Oregon, but many also had far fewer. Of course, this can partially be explained by differences in state populations. For example, the research used census data showing Oregon with a population of approximately 4.1 million, while New York, for example, had a 19.75 million population.
Medical Malpractice Lawsuits Filed
Zippia analyzed data from the NPDB to determine which States file the most medical malpractice cases on a per capita basis, thereby equalizing population differences. The analysis lists suits per 100,000 population and includes an interactive map. Louisiana placed first, with 44.1 lawsuits per 100,000 population. Hawaii placed 51st (including the District of Columbia in the ranking), with 4.9 suits. Oregon placed 13th, at 28.6 suits. To be fair, not every lawsuit filed proves malpractice. On the other hand, many instances of medical malpractice are never pursued.
What Damages Can Be Awarded in a Medical Malpractice Case?
Visiting the hospital can be an incredibly costly experience. If you become the victim of medical malpractice while visiting a doctor or hospital, the costs can skyrocket even higher. When a doctor or other medical professional makes a mistake or is negligent during the course of treatment, it’s often the case that further treatment will be required to make the patient whole. On top of that, experiencing medical malpractice often causes a great deal of pain and suffering for patients and their families who put their trust in medical professionals to treat them with the best possible care. For these reasons, there is a wide variety of damages that a patient injured by medical malpractice can recover.
Proving Medical Malpractice
Before getting into what damages an injured patient or their family can pursue, it’s important to note that they must first prove medical malpractice occurred. Medical malpractice occurs when a doctor, nurse, or other medical professional causes harm to a patient by intentionally or negligently failing to follow the proper standard of care. Not every negative outcome experienced by patients qualifies as medical malpractice. Only when a medical professional fails to apply the standard of care that other medical professionals would apply under similar circumstances. To prove medical malpractice occurred, it’s best to work with an experienced medical malpractice attorney who can properly investigate the case and, if need be, consult with a medical professional.
Types of Damages
Once an injured patient has proven medical malpractice has taken place, they must also show that an approximate price tag can be put on the damages. There three categories of damages available in medical malpractice cases, which are general, special, and punitive.
General damages refer to the cost of a patient’s suffering that does not have a definite price. Examples of general damages include loss of enjoyment of life, physical and mental pain and suffering, and loss of future earning capacity. When pursuing general damages in a medical malpractice case, it’s important to remember that every case is different. There aren’t clear rules about how the exact amount of damages is determined. If an injury existed before the malpractice occurred, damages are not available.
Special damages are the more quantifiable expenses that are caused by medical malpractice. These include medical bills and past missed work. Because special damages are quantifiable, they are easier to calculate. The challenge often arises around determining future medical expenses.
There are some situations where a patient will be able to recover punitive damages. Punitive damages are meant to punish medical professionals who commit medical malpractice intentionally. Punitive damages are often difficult to recover because proving intent can be difficult.
Damage Caps in Oregon
In many states, there is a cap on the amount of damages a patient can receive after they have proved to a jury that medical malpractice has occurred. Often, states limit non-economic damages, including compensation for emotional distress, pain and suffering, and other subjective losses. In Oregon, however, this is not the case. There is only a cap on the amount of non-economic damages that can be received when the defendant’s medical malpractice played a role in causing the patient’s wrongful death. In these cases, the cap on non-economic damages is $500,000.
Contact an Attorney
If you or a loved one has experienced medical malpractice, don’t hesitate to contact the experienced medical malpractice attorneys at Nelson MacNeil Rayfield. We can discuss your case or answer any questions you may have during a free consultation. With over 70 collective years of legal and trial experience, we’re well-equipped to answer any questions you may have or represent your case in court if need be.