The terms negligence and malpractice are often used interchangeably. Strictly speaking, negligence is a failure to “exercise the care that a reasonably prudent person would exercise” in similar circumstances. Medical malpractice, according to Andre Calitz, the chief operating officer for personal injury law practice Joseph’s Incorporated in Johannesburg, is an evaluation of conduct measured against a standard of medical care established by the medical fraternity.
In the state of North Carolina, an individual is held accountable for the intentional infliction of emotional distress if the victim or plaintiff can prove that the defendant’s conduct was outrageous and extreme, that the conduct was intended to cause severe emotional distress, and that the defendant’s conduct did in fact cause severe emotional distress. Although the definition of outrageous conduct can be subjective, it should be more than just threats, annoyances, insults, and petty oppressions.
I later said I wanted reimbursement for wages lost due to pain, & donor fees lost due to inability to donate since my arms were bruised & in pain, along w/ damages for pain & suffering as I was unable to perform household duties, or enjoy my daily workouts. They advised me it's co.'s policy that I turn over medical bills & they pay after the fact; that don't pay for bills directly, & they won't compensate me for anything else unless I do it this way.
One example might be a person who survives a car crash in Knoxville in which a loved one dies. If the plaintiff can prove negligence, then any mental or emotional suffering resulting from the accident might be a recoverable damage. Seeing a loved one killed in an accident would traumatize anybody, but not every case of emotional distress will be so clear.
Medical malpractice insurance carriers generally require very large deductibles from their insured doctors. Furthermore, most states have laws that require doctors to report any claims of medical malpractice to a state-run board, which can result in higher insurance rates. Doctors may be willing to settle for an amount at or around the amount of their deductible, as it will abrogate the need for them to report the case. They are simply choosing to pay you the amount of the deductible instead of paying the insurance company. Seek counsel before accepting this type of settlement, as you need to be sure your future medical needs will be provided for.
No matter your jurisdiction, medical malpractice claims and lawsuits are primarily about one thing: accountability. People trust that doctors will take care of them and make their condition better in a patient’s hour of need. When doctors fail in that responsibility, they must be held accountable for the negligent actions they took – as well as for the actions that they failed to take under the circumstances.
If the doctor's mistake was one that a reasonable doctor would make, he has not acted negligently and has not committed medical malpractice. Often when a doctor fails to diagnose a medical problem, he may mistake the problem for something else and attempt to treat that. Likewise, if the medical problem is extremely rare, unknown, or difficult to identify, than a proper diagnose may not be possible.
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One of the most common reasons that a physician may be accused of medical malpractice is due to the failure to diagnose. This is premised on the idea that the patient needlessly suffered for an extended period of time because the doctor failed to properly evaluate tests or run tests that should have reasonably notified him or her of the potential diagnosis. Other examples of medical malpractice include misdiagnosing a medical condition, failing to provide appropriate treatment, causing an unreasonable delay in treating a diagnosed condition, violating HIPAA laws, performing wrong-site surgery and performing surgery on the wrong patient.
In most cases, only the primary physician (your doctor) can be sued for misdiagnosis. In rare cases, other health care professionals may also be liable if their negligence caused or contributed to the patient’s harm -- including nurses, lab techs, and any specialists who may have seen the patient. The hospital or health care facility where the doctor practices usually cannot be sued for harm caused by misdiagnosis. That’s because most doctors are independent contractors, not employees of the hospital, so the facility can’t be held legally responsible for the doctor’s negligence.
The amount of money damages a claimant gets for pain and suffering will also depend upon the amount claimed in a lawsuit if such is filed or the amount demanded to the responsible party in the underlying claim if it is an insurance claim. Even though a lawyer representing a client in an injury negligence-based lawsuit may claim a certain amount for pain and suffering, the jury or the insurance adjuster will award pain and suffering money for differing reasons. In practice, historically tort cases involving personal injury often involve contingent fees, with attorneys being paid a portion of the pain and suffering damages; one commentator says a typical split of pain and suffering is one-third for the lawyer, one-third for the physician, and one-third for the plaintiff.
For example, the Court of Appeals of Texas said in 2006 that the parents of a stillborn baby could sue the Harris County Medical Examiner's Office for causing mental anguish after the office allegedly lost the baby's body during an autopsy. The court said the county's relationship with the parents constituted a "special relationship" under which mental anguish damages were allowable in the absence of physical injury.
Thank you for your response. I guess what it comes down to if I want to see any money out of this is to first spend the money at a doctor (as I mentioned I hate hospitals, and E.R services are the only ones who bill you after the fact.) I just don't understand why one would have to pay a professional to examine something and tell me what I already know, that no bones were broken and I'll just be sore for awhile. The company has video of my being hit by this equipment, a couple employees saw it. I documented the bruising after. Why do I need someone to tell me "you'll be alright, it'll just be sore for awhile," to justify what happened to me that day, did happen, and it was in no fault of my own? The fact that it happened, was witnessed & recorded, & I have photos of the bruising, isn't enough for me to win in small claims court?
Not every mistake or bad result means there was negligence—doctors and healthcare providers are not liable for every mistake. The law realizes that doctors often have to make quick decisions without the best information. The key question is this: did the doctor make a reasonable decision that other reasonable doctors would have made in the same situation—even if later it turns out to be the wrong decision that caused a bad result. For example, you complain to your doctor of severe head pain. They pay attention and examine you. They carefully take your medical history, listen to you describe your symptoms, and order the right tests. Using the results of this examination, they decide that you have an ordinary tension headache that will go away. Later, it turns out that your doctor was wrong, and the pain was not caused by a tension headache. The doctor’s diagnosis was wrong. But your doctor still provided the proper standard of care, the same care that other doctors would have provided in this case. The doctor was not negligent and you probably won’t win if you sue the doctor for malpractice.
VI. The medical professional is often called upon to adopt a procedure which involves higher element of risk, but which he honestly believes as providing greater chances of success for the patient rather than a procedure involving lesser risk but higher chances of failure. Just because a professional looking to the gravity of illness has taken higher element of risk to redeem the patient out of his/her suffering which did not yield the desired result may not amount to negligence.
Under NO circumstances is your doctor allowed to leak, alter, or otherwise use your medical information against you in retaliation for filing a malpractice lawsuit. There are severe criminal, civil, and judicial penalties for taking such illegal actions. For engaging in an act such as altering your medical records, your doctor could face anywhere from criminal fraud charges to the loss of his medical license.
This is often the most difficult part of medical negligence cases and even lawyers have trouble getting their heads around it sometimes. You may be able to prove that a doctor did the wrong thing, but you also have to prove that what happened next was the result of that wrong thing and you have to prove that it would not have happened if the wrong thing had not been done. Deciding whether or not this is the case involves both factual and legal issues and is sometimes very hard to do. You really need a lawyer who is highly experienced in medical negligence cases to look at this for you.
Because emotional distress cannot be seen or objectively quantified, it may be harder to get money for this type of injury compared to, for example, a broken arm. In many cases, emotional distress is part of a harassment case, such as sexual harassment or another form of workplace harassment. A medical misdiagnosis may cause emotional distress, as well.
The above settlement calculator should be used for more minor injuries. If you suffered a catastrophic brain injury, wrongful death, or another serious injury, or were permanently disabled, then you should not use this injury settlement calculator. Instead, you should seek counsel with a personal injury lawyer to accurately determine the value of your case and calculate the correct insurance settlement.
Dr. Zaheer A. Shah, MD, JD (Attorney and Physician): The author of this answer is an Attorney-at-Law, licensed to practice law only in the state of Arizona and he is a board certified, Ivy League trained, practicing physician. Nothing posted on this forum by the author constitutes legal advice. Additionally, any medical opinions rendered on this forum in response to a particular question do not constitute medical advice. Opinions expressed herein are solely those of the author, and are neither privileged nor confidential. While an effort is made to offer accurate information, there is no guarantee as to accuracy.
I may not live long enough to see minor children gain the same rights that adults have to sue for outrageous instances of extreme emotional abuse (and physical abuse, and sexual abuse) but I hope that some day minor children WILL be given the right to sue their parents for ghastly instances of child abuse (such as sexual molestation), emotional abuse, and skin-crawling incidents of child neglect and child exploitation.
Do you have skeletons in your closet? Were you less than truthful about your health and/or physical condition? Are you prepared to subject yourself to hours of questioning from attorneys, both yours and likely several others? Are you prepared to make financial disclosures that will become public? When you file a lawsuit, particularly a medical malpractice lawsuit, your life becomes a very open book -- nearly everything is fair game.