32. We are also cognizant of the fact that in a case involving medical negligence, once the initial burden has been discharged by the complainant by making out a case of negligence on the part of the hospital or the doctor concerned, the onus then shifts on to the hospital or to the attending doctors and it is for the hospital to satisfy the Court that there was no lack of care or diligence. In Savita Garg (Smt.)vs. Director, National Heart Institute (2004) 8 SCC 56 it has been observed as under:
The Dial-A-Law library is prepared by lawyers and gives practical information on many areas of law in British Columbia. Script 420 gives information only, not legal advice. If you have a legal problem or need legal advice, you should speak to a lawyer. For the name of a lawyer to consult, call Lawyer Referral Service at 604.687.3221 in the lower mainland or 1.800.663.1919 elsewhere in British Columbia.
In the context of the doctor-patient relationship, proving the necessary elements of an emotional distress claim can be difficult. Plaintiffs may need medical evidence, from psychologists or orthopedists, of emotional or physical injuries -- the more intense the mental anguish and the longer the suffering, the more likely you'll be able to prove emotional distress. And the more extreme or outrageous the underlying conduct, the more likely you'll be able to link your distress to that conduct.
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.
Second, you should never be paying money to any lawyer upfront to bring your malpractice suit. A lawyer should never ask you for money to pay for the costs of your case. If he does, find a new lawyer pronto! Law firms experienced in malpractice litigation will never ask their clients to pay for the expenses of their case. It is a cost of doing business for malpractice law firms to pay for the costs of hiring medical experts, obtaining medical records, paying for depositions, and the like. Lawyers who ask you to pay for the costs of your case before the case is resolved have no business in malpractice litigation and you should take such a request as an urgent warning to find a new lawyer.
Finally, you should also report the incident to a state regulatory agency for further investigation and possible punitive action. Although many of these punishments will be less than what you may want, it still creates a paper trail that can be presented as evidence in a civil case. Doctors and nurses should be reported to their regulatory boards. State health departments are in charge of hospitals and nursing homes, so they should be contacted if the incident occurred at one of these sites.
Another reason that misdiagnosis happens is a faulty lab result or test. Errors in test results can happen because of flawed equipment or human error. In some cases, a technician who administers the test inappropriately, or a secondary doctor who misreads a scan, resulting in a doctor making an incorrect diagnosis, can be held liable. If the hospital staff makes a mistake, the hospital can be held directly liable.
For medical malpractice cases, attorneys who represent the plaintiff (the patient who has been injured by medical negligence) usually do so on a "contingency" basis, which means the attorney’s payment comes as a set percentage of what the plaintiff ends up receiving after a settlement or a successful jury trial. If the plaintiff receives no payment or ends up losing at trial, the attorney is not paid. But before you sign a contingency agreement, check to see if you will be on the hook for things like filing fees and other costs.
The Dial-A-Law library is prepared by lawyers and gives practical information on many areas of law in British Columbia. Script 420 gives information only, not legal advice. If you have a legal problem or need legal advice, you should speak to a lawyer. For the name of a lawyer to consult, call Lawyer Referral Service at 604.687.3221 in the lower mainland or 1.800.663.1919 elsewhere in British Columbia.

MPS insures doctors in the private sector. According to its figures, thought to be conservative by some practitioners, the number of claims increased by 27 percent between 2009 and 2015, and claim size escalated by an average of 14 percent over the same period. At the Medico-Legal Summit, a once-off event convened by the Minister of Health, Dr Aaron Motsoaledi, in March 2015, MPS’s head of medical services in Africa, Dr Graham Howarth, said that the highest claim currently, lodged in 2013, was for R80 million.
The doctor's negligence caused the injury. Because many malpractice cases involve patients that were already sick or injured, there is often a question of whether what the doctor did, negligent or not, actually caused the harm. For example, if a patient dies after treatment for lung cancer, and the doctor did do something negligent, it could be hard to prove that the doctor's negligence caused the death rather than the cancer. The patient must show that it is "more likely than not" that the doctor's incompetence directly caused the injury. Usually, the patient must have a medical expert testify that the doctor's negligence caused the injury.

Properly illustrating your pain and suffering damages at trial for the jury to understand is essential in order to be adequately compensated for your injuries. As stated above, while juries may have a relatively easy time determining the amount of compensation for economic damages because those are numbers can be seen reflected in medical bills and documented lost wages, they often struggle with placing a monetary value on someone’s pain and suffering because these are admittedly abstract concepts.


Car insurance policies that extend beyond personal injury protection (PIP) generally provide coverage for most types of damages, including pain and suffering claims. The two most common types of auto insurance coverage are bodily injury (BI) and uninsured/under-insured (UM) motorist coverage. Both BI and UM can be used to cover pain and suffering, but only up to the amount of the policy limits. Bodily injury coverage most commonly has two policy limits, or split limits.
For example, insurance companies will most likely consider injuries treated by a doctor or specialist to be more serious than injuries treated by a chiropractor. Insurance companies will also do their own reasoning to negate some of the most concrete concepts, like the length of treatment. If they think you didn’t need to your doctor for that last appointment, they will not include that time in the pain and suffering calculation.
In 2015, a Michigan doctor pleaded guilty to purposefully misdiagnosing patients with cancer and treating patients with strong cancer drugs they did not need. He also pleaded guilty to Medicare fraud, receiving kickbacks, and money laundering. The doctor is currently serving a 45-year prison sentence. A misdiagnosis that leads a healthy person to believe he or she is sick is a nightmare. This extreme example does showcase patient vulnerability and the trust they put in attending physicians.
Apparently, most of the medical malpractice lawsuits in the US are related to medical misdiagnosis due to the doctor’s negligence or failure to follow a standard procedure. They are also more common in the outpatient department since both the private sector and the government gives more focus on the safety of the patient who is under treatment in a hospital.
In fact, filing a civil suit against your doctor does not even guarantee that he will be investigated. In order for your doctor to be investigated, a complaint would have to be filed against him with the New York State Department of Health. The Office of Professional Medical Conduct (“OPMC”) is responsible for investigating complaints about physicians, physician’s assistants, and specialist assistants. An investigation may lead to a formal hearing before a committee of the Board for Professional Medical Conduct.
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.

One of the rights that most patients are familiar with regarding medical care is privacy rights. While this protection of privacy is important, you also have the right to receive excellent medical care. If you think that you or your loved one’s patient rights have been violated by means of medical malpractice, a lawyer, like a personal injury lawyer Minneapolis MN trusts, may be able to file a lawsuit on your behalf.

Indeed, even the standard jury instruction does not provide the jurors with guidance in determining a figure. Abstract concepts, ambiguity and confusion are all defense tactics utilized by defense attorneys to dismantle your viable personal injury claim. This is why it becomes critical to open up to your attorney about the extent of your injuries and the complete impact that your injuries have had on your life.

Thomas found a medical malpractice attorney to file a lawsuit on her behalf. But then he withdrew, she said, because he wouldn’t make much money if they won. Thomas had just started a consulting business and didn’t make much. Because economic damages in lawsuits are largely based on lost income, she was told the potential rewards weren’t high enough, she said.


Non-economic damages cover certain type of injuries that are not out-of-pocket losses, including pain and suffering, disability, disfigurement, humiliation, mental anguish, loss of consortium (companionship) as well as emotional distress. Because these damages are often difficult to calculate and, juries may overcompensate and non-economic damages can exceed actual economic damages. There is no standard formula to calculate these non-economic damages; therefore they vary on a case by case basis and are referred to as subjective damages because they differ according to a plaintiff's personal or subjective experience.
I have this fantasy in which I am four years old again, and my screaming, raging bpd mother is looming over me and threatening to beat me with a heavy leather belt again, and I just very calmly fold my arms and say something like, "OK, lady. Fine. You take ONE step closer to me and I'm calling my lawyer. Your crazy ass is going to get hauled into jail for physically assaulting and battering a 4-year-old with a dangerous object. That's YEARS in prison, you fucking maniac. Just try it, I dare you."

These factors all have to do with human nature. If you don’t like somebody, why would you help that person? Jurors feel the same way. If jurors don’t like someone who is going before them asking for money (i.e., a plaintiff in a malpractice case), they are not going to give that person much money. A likable plaintiff who is a good witness is going to do a lot better at trial than will an unpleasant plaintiff who is a forgetful, argumentative witness.
“This is a good step; it provides an avenue for potential litigants to engage with service providers they believe have been negligent. Such a process assumes the willingness of both parties to engage in good faith, and to compromise, if this is appropriate,” Dinnie says. “Where the matter at hand is relatively simple and perhaps the quantum of the possible award is not that significant, it provides a way forward. I am not sure how effective such an option would be in a more complex case where the stakes were higher, the possible longevity of the victim was in dispute and the quantum of the award was higher.”

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.   
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.
The more evidence you have to prove your level of pain and emotional distress, the higher the adjuster’s offer will be. Your ability to persuade him of the severity and duration of your pain and suffering can also play a role. Guided by experience, computer input, evidence, and your persuasive abilities, the adjuster will come up with an amount he feels is justified.
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.
Mental anguish is an element of non-economic damages usually sought in personal injury cases, medical malpractice and sometimes defamation cases. Generally, "mental anguish"  translates to certain types of suffering that may include distress, anxiety, fright, depression, grief, or trauma. In many jurisdictions, plaintiffs may recover for mental anguish; however, some states set compensation caps on non-economic damages.
Hospitals’ duties—hospitals have a duty to exercise a proper standard of care. A hospital’s duty is to take reasonable care in running the hospital to avoid harming patients. This includes appointing enough competent staff, ensuring that the staff act within their competence level, ensuring timely treatment, and taking the right steps to protect patients from infections from other patients. Hospitals normally have someone to handle complaints about healthcare they provide.
Assuming that there was harmed done due to the misdiagnosis, the second question you need to answer is; would another doctor with a reasonable medical profession come with a different diagnosis instead? If the second opinion gives a different conclusion, and it happens to be the correct diagnosis, then there would possibly be a case for medical damages.
Kermit Cole, MFT, founding editor of Mad in America, works in Santa Fe, New Mexico as a couples and family therapist. Inspired by Open Dialogue, he works as part of a team and consults with couples and families that have members identified as patients. His work in residential treatment — largely with severely traumatized and/or "psychotic" clients — led to an appreciation of the power and beauty of systemic philosophy and practice, as the alternative to the prevailing focus on individual pathology. A former film-maker, he has undergraduate and master's degrees in psychology from Harvard University, as well as an MFT degree from the Council for Relationships in Philadelphia. He is a doctoral candidate with the Taos Institute and the Free University of Brussels. You can reach him at [email protected]

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.
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The Florida Supreme Court has explained what plaintiffs must prove in order to recover emotional distress damages. The simplest way to prove emotional distress is with a physical impact that results in a physical injury, like a car accident. It’s not hard to prove that emotional trauma often accompanies physical trauma. However, a plaintiff may also demonstrate emotional distress by proving that he or she:
Punitive damages add another level of compensation. A judge or jury can award punitive damages in addition to pain and suffering. They are usually awarded when the at-fault party’s conduct was willful, criminal, or otherwise egregious. Many states have limits on how high punitive damages can be, but even with limits, punitive awards can be staggering.
We certainly understand that some people have a great need for the cost savings available for medical treatment abroad. But it’s also important to consider the protections available in a foreign jurisdiction if something goes wrong. After all, our American legal system is built on the foundation that society is safeguarded when wrongdoers are held legally accountable for their actions. If you have questions about medical malpractice, please call the experienced lawyers at Nelson MacNeil Rayfield and we will be happy to answer them.
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.
Medical negligence occurs when a doctor or other medical professional breaches the standard of care. In general, a standard of care is the accepted methods of treatment applied by other medical professionals in the area to patients with identical or similar conditions. A standard of care will vary depending on a number of factors, including geographic area, the age of the patient, and the medical condition.

For example, the standard of care for an eight-year-old child with a cough who is complaining of chest pain would be different than the standard of care for an 80-year-old man who’s complaining of the same symptoms but has smoked a pack of cigarettes daily for most of adulthood. In the case of the child, a reasonable, competent doctor would probably diagnose and treat the child for bronchitis, but that same doctor would run tests to determine whether the elderly smoker had lung cancer.
Hi, I have been divorced for several years. I just started studying for a degree when things became bad and I subsequently got divorced. We have 2 children with chronic illness of which one is epileptic. I had to stop studying to make sure I could look after my children. work continually and extensive hours as my ex husband either didn't pay maintenance or short paid. when we went to court, he always had an advocate and I can afford one. (I always get the short end of the stick)
You will want to incorporate as many of these factors into your claim as you can. In addition, you will want to consult a personal injury attorney. Proving these types of cases can be very difficult, and an attorney can help guide you through the process and strengthen your case.schedule a free consultation with a personal injury and accident law firm.
Thomas found a medical malpractice attorney to file a lawsuit on her behalf. But then he withdrew, she said, because he wouldn’t make much money if they won. Thomas had just started a consulting business and didn’t make much. Because economic damages in lawsuits are largely based on lost income, she was told the potential rewards weren’t high enough, she said.

How can you tell the difference between appropriate, but unsuccessful care and medical malpractice? Ask. Ask your doctor. Get second opinions if possible. Talk to lawyers, who may have medically trained staff that can give an informed opinion, or who may have dealt with the exact same issue (or doctor) you are dealing with. Do whatever you can to attempt to allay any misgivings you have about your care. But take any opinions with a grain of salt. Some doctors simply won’t accuse a “brother physician” of making a mistake. Some malpractice attorneys will exaggerate the potential of your claim in an attempt to make money. Use your best discretion when seeking opinions on your treatment, but be diligent in the pursuit of information. Until you file a lawsuit, you are your own best advocate and investigator.
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