You can also recover damages for physical pain and suffering, mental and emotional suffering, inconvenience, disfigurement, loss of enjoyment of life and "loss of consortium" (the loss of company/love/relations with your spouse). Many states have set limits on the amount of damages available to injured patients in medical malpractice cases. So, pain and suffering for the same injury may be in the millions in Illinois, but will be $250,000 or less in a state that limits pain and suffering damages to $250,000.
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.
The standard of care—this varies with the level of specialty of the doctor—the standard may be higher for specialists. And it varies with time—today’s standard may not be good enough next year. You can’t always expect the best care available at the most sophisticated research hospital. The standard of care may be affected by the level of hospital that treats you.
More often that not, however, a claim will fail on the fourth element, because Judges have a hard time believing that someone who has gone to a doctor with a problem would not accept the doctor’s recommended solution. People take risks every day – risks involving being in a car, crossing the street, taking pain killers, agreeing to medical procedures. A savvy doctor who is being sued for failing to warn will trawl through your past and look for behaviour that evidences your particular tendency to take risks and will try to use it against you to defeat your claim. A good medical negligence lawyer Sydney would have taken you through all that before you decide to sue so that you know whether or not you are likely to win a failure to warn claim.
The second element is the most difficult to prove. A skilful and competent doctor can make medical errors as such it is important to look at the actions of the doctor in arriving at a medical conclusion regarding a patient’s health. If it can be proven the doctor acted with reasonable skill, competence and did his due diligence in arriving at a conclusion then he/she will not be liable for any loss or suffering as a result of the misdiagnosis. But where it is shown that the doctor fell below the standards of a reasonable competent practitioner as he failed to take the necessary step arrive at a proper diagnosis and his acts resulted in the damage then a party will be successful.
Unfortunately, patients who have been injured from a delayed or misdiagnosis have the added burden of proving that medical malpractice has occurred. Consultation with an experienced medical malpractice lawyer is crucial to a successful outcome. At Folkman Law Offices, we advocate for patients who have suffered due to a medical mistake and help them collect the compensation they are entitled to under the law.
A recent example of a plaintiff receiving compensation for emotional damage happened in Virginia. A patient going in for a colonoscopy chose to use his cellphone to record his examination so that he could capture the instructions his doctor would give him after the procedure. When he went home and listened to the recording, he found that as soon as he was under anesthesia, his entire surgical team began cruelly mocked and insulted him. The man sued for medical malpractice and defamation and after a 3 day trial was awarded $500,000 in damages.
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.