It is very common for an injured person to consult a lawyer saying ‘if Dr Smith had told me I would end up like this I would never have agreed to the procedure’.  While the saying ‘hindsight is always 20/20’ is often appropriate, there are situations where an injured person could and should sue their doctor or other professional for failing to warn them of significant risks of a procedure.

Putting a dollar amount on suffering is difficult for every party involved in a lawsuit. Some attorneys estimate pain and suffering damages using a formula based on the total of the other compensatory damages: compensatory damages x (a number from 3 - 10) – compensatory damages. The number you multiply by depends on the severity of the injury. For example, a minor injury would be a “3,” paralysis would be a “10.”


Medical malpractice cases can be complex. It can sometimes take a medical expert to understand what really happened. Yet it is a jury of non-medical people who will decide whether you win or lose your malpractice case. Your lawyer and your medical expert witness must be able to present difficult medical issues to the jury in a way that is easily understandable and that makes common sense.
"The really troubling thing about this case is that nothing could have been done to change the [baby's] condition," said Daniel Rovner, an attorney for Chester County Hospital, one of the defendants. "There was no treatment, nothing medically that could have been done. The bigger picture is that the plaintiff's bar is going to use this as an attempt to expand the law to explain emotional distress."
95. In our considered view, the aforementioned principles must be kept in view while deciding the cases of medical negligence. We should not be understood to have held that doctors can never be prosecuted for medical negligence. As long as the doctors have performed their duties and exercised an ordinary degree of professional skill and competence, they cannot be held guilty of medical negligence. It is imperative that the doctors must be able to perform their professional duties with free mind.
Patrick Malone, a Washington, D.C., attorney who has represented patients in medical malpractice lawsuits since 1985, said he triages cases to focus on those that resulted in permanent harm. That's necessary, he said, because of the time and emotional investment the patient will need to make to bring the case to trial, and because of his investment in the case.
The doctor acted negligently. The doctor acted negligently if the doctor failed to ask you certain questions, forgot to send the blood test to the proper lab, gave a fake name for your illness and other practices which a similar doctor with the same experience would never have done. To prove this, you will have to show that a reasonable doctor would have recognized your medical problem from your symptoms and diagnosed you appropriately.

7. Hospitals are afraid of this investigation: If a violation of the statute is alleged, the federal government comes into the medical facility and investigates not just the claimed violation, but any violation of any type from the statute. This gives the plaintiff lawyer great leverage with the hospital to settle both the state malpractice and federal EMTALA claims quickly and quietly.
Example: Facial ScarJane is a teenage girl who suffered a facial laceration when she slipped and fell in a grocery store. Her only physical injuries were to her face. She required 12 stitches and some antibiotics. The total amount of her special damages was only $700, which represented the cost of the emergency room visit and her medicine.Unfortunately, the wound to her face left a permanent scar. She was embarrassed and humiliated by some children at school. She became depressed from the teasing and from knowing she’d be scarred for the rest of her life.

2. Lawyer - choose a lawyer you feel happy and comfortable with. Of equal importance to this, ensure the lawyer you choose is specialised in medical negligence law. 1stClaims will be able to help you find the perfect lawyer for you, so get in touch with us today. They will be able to give to the legal support you need. You can do this on behalf of a family member if they are unable to do this on their own.
The accuracy of information provided on this site is not guaranteed. It is generic information for informal purposes only. It is NOT formal legal advice. Your use of this site does NOT create an attorney-client relationship. Consult with a licensed attorney in your state before relying on any information found on this site. If you are currently represented by an attorney, you should strictly abide by his/her counsel.

98% of the population are not the “type of people to sue”. However, when you or your loved one has been injured through the negligence of another person, you have basic responsibilities to ensure that medical bills are paid, lost wages are recovered, future medical expenses are paid – and if there is a physical disability, you must ensure that you or your loved one is compensated for the dramatic change in your life.
The patient must also prove that the doctor's negligent misdiagnosis or delayed diagnosis caused the patient's injury or condition to progress beyond where it normally would have -- had the correct diagnose been made in a timely manner -- and that this progression had a negative impact upon treatment. For example, because of a delayed cancer diagnosis the patient had to undergo a more severe treatment regimen (such as chemotherapy) or the patient died because the cancer had metastasized and no longer responded to treatment. Sometimes a patient can show harm even if the condition can still be treated. For example, with some cancers a delay in treatment increases the risk of recurrence.
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.
Although this may sound like “tough love”, if you feel that you need or want to bring suit against your doctor because he or she injured you or a loved one, and your family or friends are giving your grief about it, maybe it’s time to think about whether they really have your best interests at heart. If bringing suit is something you feel that you need to do to pay for lost wages, medical bills, pain and suffering, or just to regain some sense of control over the situation, your good friends and family will eventually come to understand and stick by your side.
I was injured when a piece of metal came loose from a signin kiosk at a plasma center I frequent came swinging down at my arms. It was so loud, an employee saw it & joked I'd have to pay $60 to repair it. This hurt, but not enough to forego my donation $, but as I donated, it began hurting more. I ended up bruising on both arms for 3 weeks & in pain.
Misdiagnosis in a hospital emergency room can be caused by the pressure and reduced time available to look into various differential diagnoses. Unusual illnesses or illnesses that are distinctive to a particular population are more likely to be missed. For example, a homeless person who comes to the emergency room asking for pain medication may be taken less seriously than an ordinary person who comes in wearing clean clothes and complaining of stomach pains. This may result in a missed diagnosis of appendicitis regarding the homeless person.
Loss of wages is capped at three times the Average Weekly Earnings published by the Australian Bureau of Statistics.  Most injured people are not caught by this provision as it requires a gross salary of more than $140,000.00.  Claims for lost superannuation entitlements are only allowed at the compulsory employer contribution rate (currently 9% of your salary).
The most common kind of damage awards in medical malpractice lawsuits are compensatory. This is money paid for actual injury or loss. This includes medical and hospital bills, rehabilitation expenses, physical therapy, ambulance expenses, prescription drugs, nursing home care, domestic services,medical equipment, lost employment income, increased living expenses, and loss of future income. The latter is much more difficult to assess. If the doctor injured Bill Gates, the doctor will pay much more in compensation for lost earnings than if the injury was to someone who is poor or retired.
7. Hospitals are afraid of this investigation: If a violation of the statute is alleged, the federal government comes into the medical facility and investigates not just the claimed violation, but any violation of any type from the statute. This gives the plaintiff lawyer great leverage with the hospital to settle both the state malpractice and federal EMTALA claims quickly and quietly.

So, the best thing you can do if you think you have a good case against a hospital is to be a good client. Before you meet with a lawyer, make sure you know as much of the story as possible. How was your life before the medical negligence occurred? How was it after? Do you have any medical records from the hospital where you were harmed? You may not be asked for them at the initial meeting, but keep in mind that the lawyer may need your medical records to determine if there is medical negligence and if so, if suing the hospital would likely result in a trial verdict or settlement.
Doctors who fail to refer patients to a specialist can also cause a delayed diagnosis. A patient that complains of back pain and is sent home with muscle relaxers and pain medication can be at risk for permanent paralysis that an experienced neurologist could have prevented. For example, patients that go to an emergency room for treatment of severe stomach pain that are not seen by a gastrointestinal specialist could be diagnosed with the flu instead of a serious liver issue.
Once you have figured out what kind of case you have, you will need to prepare your documents and file your lawsuit. Sometimes you can obtain forms for your lawsuit from either the clerk of court or local law libraries, but not always. Similarly, legal aid groups may be able to help you complete your paperwork, evaluate your claims, and give you advice on what to file, where, and how much your filing fees will be. When your paperwork is ready you will need to file it with the clerk of court, pay a filing fee, and arrange to have a copy of the lawsuit and summons served on the other party. If you are unable to afford the filing fees, you can usually apply for indigent status and ask for a waiver of these fees.
For example, your neighbor started a fire on purpose in your garage with the intent to kill you. If you started having panic attacks that led to fainting, you might have a case. In this type of situation, the physical injury is a direct result of emotional distress. But if an employer screams and makes threats at an employee, this might not count as outrageous conduct. Even if it's rude and insensitive, it might not count as emotional distress.[2]
Since medical malpractice situations can create unexpected medical expenses, it is important to speak with a medical malpractice lawyer about filing a claim against the negligent doctor or medical organization. The earlier you begin the legal process, the closer you may be to receiving an explanation regarding why the medical malpractice situation occurred and who was at fault.
“Special damages (compensation for the injured party’s future medical expenses and loss of income) probably cannot be capped in South Africa, and this usually represents the largest part of any claim. Without adequate compensation for legitimate injuries, patients would be totally dependent on our public healthcare system for their future care. Receiving compensation from private sector healthcare providers and then relying on the state for any shortfalls is unfair,” he says.
Failure to diagnose and misdiagnosis of an illness or injury are the basis of many medical malpractice lawsuits. Misdiagnosis on its own is not necessarily medical malpractice, and not all diagnostic errors give rise to a successful lawsuit. Even highly experienced and competent doctors make diagnostic errors. Instead, the misdiagnosis or failure to diagnose must result in improper medical care, delayed treatment, or no treatment, which in turn must result in a worsening of the patient's medical condition in order for the malpractice to be actionable.
3. Expect that the case will be quick and cheap. Although experienced lawyers will take on viable cases on a “contingency basis”, you will likely be expected to front the costs of initial medical opinion(s) and record gathering. Be prepared for no less than $5,000 and as much as $15,000 to get started. If the investigation is favourable, most lawyers will pay the freight from this point to the end of the case.
The law protects you against any doctor providing you with substandard care. It is possible to sue a doctor who works in an NHS hospital, a private practice or a GP's surgery. Also the law understands that if a doctor has been negligent towards you, you may not always be able to make a claim for yourself. It is possible to sue a doctor for negligence on behalf of yourself, your child, an elderly relative, an individual who has passed away or another loved one who is unable to make the claim themselves.
Damages from pain and suffering are considered “general damages” and are distinguishable from “special damages.” Hospital bills, loss of income, and certain out of pocket expenses are examples of special damages because a plaintiff can provide a bill, receipt, or work contract to show the money that was lost or paid. Pain and suffering, on the other hand, is not quantifiable in a precise, mathematical way.

In another case, the Appellate Division of the Supreme Court of the State of New York allowed a couple to sue a fertility clinic for emotional distress after the clinic implanted the female plaintiff's embryo in another woman. Although neither plaintiff was physically injured by the implantation, both suffered emotional injury due to the defendants' breach of their duty of care, the court said.
One number represents the most the insurer will pay for one claimant, and the other number represents the maximum the insurer will pay in total, regardless of the number of claimants involved. This second number would come into play if there were injured passengers involved. You probably have seen split limits before, they most often look like: 50/100 or $50,000/$100,000.
As to what constitutes severe emotional distress, the courts here require that it rise above the level of temporary fright, regret or disappointment. Rather, the plaintiff must be able to show that they suffer from a severe and disabling emotional or mental disorder that mental health professionals generally recognize and diagnose, such as chronic depression, neurosis, psychosis or phobia.
Notify the professional's malpractice insurance company of your claim. Although the professional should take this step on his own, you better protect your interests by making such a notification on your own. In most states professionals legally are required to provide a client with the name of their malpractice insurance carrier. If you fail in getting this information directly, the state licensing authority for a particular professional should have a record of her malpractice insurance carrier.
Pain and suffering is a term used to define the physical and mental suffering that a plaintiff endures as a result of an injury. It is a component of the plaintiff's damages. So, in a medical malpractice case, the defendant health care provider can be liable for the harmed patient's pain and suffering, in additional to other damages like the cost of medical treatment and lost income.
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Since medical malpractice situations can create unexpected medical expenses, it is important to speak with a medical malpractice lawyer about filing a claim against the negligent doctor or medical organization. The earlier you begin the legal process, the closer you may be to receiving an explanation regarding why the medical malpractice situation occurred and who was at fault.

In most cases of medical negligence, you can only file a lawsuit with your doctor. Since most doctors are independent contractors, the hospital or facility is usually not liable. Sometimes other related health care professionals can be sued if they contributed to causing you harm. These professionals include nurses, lab techs or other medical specialists.


“There are no easy answers, but there are a number of practical steps that can bring stability to an ailing industry,” he says. “In my view, mediation is one of the best options we have available to us and it should be promoted and embraced (by plaintiffs and defendants) more widely. Mediation is inherently a process of reconciliation as opposed to litigation, which is adversarial (and unpleasant).

Damages from pain and suffering are considered “general damages” and are distinguishable from “special damages.” Hospital bills, loss of income, and certain out of pocket expenses are examples of special damages because a plaintiff can provide a bill, receipt, or work contract to show the money that was lost or paid. Pain and suffering, on the other hand, is not quantifiable in a precise, mathematical way.
For example, imagine that you repeatedly told your doctor that you had joint pain and a rash, and the doctor just shrugged off your comments about the joint pain as the normal process of aging and gave you an ointment for the rash. He ignored your family history of psoriasis and overlooked the connection between the two symptoms that could have led to a diagnosis of psoriatic arthritis until after you suffered severe complications -- like damage to your heart valve.
Previously, a New York appeals court had also ruled that a couple was allowed to sue a fertility clinic for emotional distress after the clinic implanted the female plaintiff’s embryo in another woman, and although neither of the plaintiffs suffered physical injuries, the appeals court ruled that the couple had suffered substantial emotional injury due to the defendants’ breach of their duty of care.   
Damages for negligence—if you prove there was negligence and the negligence caused your injury or illness, a court may order the doctor, hospital, or healthcare provider to pay you damages for the harm the negligence caused. This can include lost earnings, medical and other expenses, pain and suffering, and loss of enjoyment of life. This last category is the court’s attempt to compensate you for the effect of the negligence on your life, in general. The doctor is responsible only for the harm that their negligence caused. For example, say you consented to surgery that would require you to take 2 months off work to recover, if done properly. But the surgeon was negligent and as a result you had to take 6 months off. In this case, you would be paid only for the extra 4 months of lost earnings caused by the negligence. You would not be compensated for the first 2 months off because you had consented to that. And you still would have had to take the 2 months off if the surgery had gone as planned.
Causation can be the most challenging element for plaintiffs to prove in a failure to diagnose cases. A plaintiff must prove that the misdiagnosis caused the injury to worsen more than it would have had a correct diagnosis been made. This means, for example, that a plaintiff will need to show that a delayed cancer diagnosis resulted in the patient's wrongful death, whereas the patient would have lived longer if it had been caught at the right time by the defendant.
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.
While most people may immediately think of a formal lawsuit when they consider seeking compensation for injuries caused by medical negligence, the fact is that in some situations, avoiding the expense and potential uncertainty of a formal lawsuit may result in a more favorable outcome. Others simply want to avoid "suing their doctor", but want to get compensation for their injuries. Read on to learn more about the options for resolving your medical malpractice case outside of the traditional court setting.
First, of all, I do not relish the fact that Dr. Sampley is being sued. He is a nice person; he was the treating psychiatrist when my daughter was admitted to the hospital cited in this article. My daughter was hospitalized on that occasion because she was unable to care for herself. She was unable to feed herself, go to the bathroom, communicate, etc. She was so catatonic and unresponsive to the environment, that her eyes were ‘glued’ in an open position. It was like being in a coma. You could move her arm in an outstretched position and her arm would stay that way indefinitely until it lost blood circulation. You could stick a needle through her leg and she wouldn’t respond. People in this MIA community who argue that ‘mental illness’ does not exist should reconsider how these kind of comments affect family members whose loved ones truly cannot care for themselves. The argument shouldn’t be whether ‘mental illness’ exists but how do individuals fall into conditions in which they are unable to take care of themselves and what is the role of iatrogenic harm and trauma in their mental and emotional condition. In my daughter’s state, both played a major role but I will keep this post as relevant as possible to Dr. Sampley and how his character/belief system is relevant to our movement.

Medical malpractice cases can be timely and costly, which is why most such cases are settled out of court. In addition, because medical malpractice insurance companies reject a significantly large portion of medical malpractice claims, it may be in your best interest to settle out-of-court or risk having no case at all. Keep in mind, however, that if you believe you have a strong case, then you should seek a larger settlement.
Incidentally, under South African common law, there is the crime of "Crimen injuria", 'defined to be the act of "unlawfully, intentionally and seriously impairing the dignity of another."[1] Although difficult to precisely define, the crime is used in the prosecution of certain instances of road rage,[2] stalking,[1] racially offensive language,[3] emotional or psychological abuse[4] and sexual offences against children.[5' (from Wikipedia).
Finding a qualified medical malpractice attorney can mean the difference between receiving compensation for your injuries and walking away empty-handed. An experienced attorney will be able to discuss the strengths and weaknesses of your case and advise you on a course of action moving forward. Begin by using FindLaw's attorney directory to contact a medical malpractice attorney today.
The civil tort of assault is premised on the fact that a person says something or otherwise implies that he or she will have some type of harmful or offensive contact with the victim and the victim has reasonable apprehension of this contact occurring. This tort does not require that the contact actually occur, but merely requires that the victim has the apprehension that it will. In the medical context, this may occur if a doctor threatens to take medical action against the patient’s will.
As this article has made clear, it’s not easy to come up with a clear number that accurately accommodates for pain and suffering. How inconvenient or awful one person may consider a life-long back injury is not the same as another person. Likewise, how you determine a dollar amount is even trickier since both pain and how it affects someone is extremely subjective.
If your case is accepted, an investigation will be conducted to evaluate medical records, medical protocol, and other pertinent information to determine the factors that may have caused an injury or death. During your initial consultation, you will be informed about how you can assist in the process such as submitting requested documents in a timely manner and attending legal sessions when required.
Delayed diagnosis—if a doctor fails to diagnose a medical condition that a reasonable doctor in the same situation would have diagnosed, they would be negligent. The question then becomes whether the failure to diagnose caused any injury or loss to the patient. Sometimes, a delay in diagnosis can mean the difference between being curing or not curing the condition. Other times, a delay in diagnosis may not have made a difference. In that case, the patient could not recover anything from the doctor. 
It’s a scary proposition: You put your faith in the hands of a physician only to be injured or harmed in the process. The fact that it happens often is not calming in any way. For instance, a reported 98,000 patients die annually as a result of medical malpractice (http://www.medmalfacts.com/facts-and-myths/). Another study shows 134,000 Medicare patients each month have an “adverse event” where they are injured in some way by doctors or medical staff (http://www.reuters.com/article/2010/11/16/us-medicare-errors). Unfortunately, if you are harmed in some way by your physician, then you have certain steps that you absolutely must take if you want to get some form of justice or compensation. Here’s an idea of what you have to do if you are injured by your physician (http://www.propublica.org/article/what-to-do-if-youve-suffered-harm).
In some states, emotional distress claims based on negligence may be barred, depending on the presence, or lack thereof, of physical injury: some states bar emotional distress claims in cases where the distress is a direct result of physical injury, others require some demonstration of a physical injury or illness as a result of the emotional distress. And other states limit NIED claims to emotional distress experienced directly or as a bystander within a zone of physical danger.
In some states, emotional distress claims based on negligence may be barred, depending on the presence, or lack thereof, of physical injury: some states bar emotional distress claims in cases where the distress is a direct result of physical injury, others require some demonstration of a physical injury or illness as a result of the emotional distress. And other states limit NIED claims to emotional distress experienced directly or as a bystander within a zone of physical danger.
This is probably the number one reason why you don’t want to sue your doctor. While it is true that most lawsuits can take some time to become resolved, it is well worth the wait. However, there are ways to speed up the process: file your lawsuit as soon as it is determined that the case has merit and make sure that the court imposes deadlines for every step of the lawsuit, such as specific dates for depositions, defense medical examinations, and the exchange of discovery responses. This will prevent the lawsuit from the inevitable delays presented by defense attorneys and their insurers and keep the case on the proverbial “fast track” to trial.
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