Many doctors are not employees of the hospital, and in general a hospital cannot be held vicariously liable for a non-employee's negligence. However, when a patient goes to the emergency room, the hospital cannot tell the patient what a doctor's employment status is. Therefore, hospitals may be held liable for an emergency room doctor's medical malpractice.
General damages refer to damages that are not specifically monetary, for example, damages for pain and suffering, loss of consortium, and emotional trauma. There is no tangible bills or receipts that state a specific dollar amount for pain and suffering or emotional damage, but they are still losses for which an injured person deserves compensation nonetheless.
According to the American Journal of Medicine 15 per cent of all medical case in developed countries are misdiagnosed. The National Center for Policy Analysis further states fatal diagnostic errors in U.S. intensive care units equal the number of breast cancer deaths each year — 40,500. Misdiagnosis has become a cause for concern in the medical and legal field because it has fatal consequences.
If you have been the victim of medical malpractice, you may wish to file a formal claim with the offending doctor’s insurance company. Certainly, the doctor may be unwilling to provide you with insurance information, or you may require the assistance of an attorney to make a claim, but in some jurisdictions (particularly those without damage caps) you may find that an insurance company is willing to negotiate a settlement prior to a formal suit being filed. The expense and potential fallout of a formal, public lawsuit is a risk insurance companies are often unwilling to take.
And don’t kid yourself. If you think that your doctor just made a mistake and that it won’t happen again – think again. Chances are, if he made a mistake with you, he very well could have done it before and will do it again. Don’t be dissuaded by your doctor’s apologies or his downplaying of your injuries. An apology won’t pay for your medical expenses, and it certainly doesn’t ensure that he realizes the full consequences of his negligible actions.
After meeting the notice requirements and other prerequisites, depending upon the jurisdiction an injured patient may be able to file a lawsuit against the doctor. In order to prove the doctor negligent and that he or she committed malpractice, the accident victim must first be able to show that the doctor breached the duty of care owed to the patient.
When suing a hospital or a doctor, you usually seek to recover past and future medical bills, lost wages, and other financial losses. But you can also seek compensation for pain and suffering. Generally, a person can pursue a claim for pain and suffering when they are injured due to negligence and experience either pain or suffering, individually or combined.
There are many reasons that a doctor can be held liable for negligence. Diagnostic tests such as blood work, MRI, ultrasound, CT scan, or x-rays are crucial when there is a possibility of internal injury, head injury, broken bones, organ failure, or illness. Failing to order these tests can result in a doctor diagnosing a sprain instead of a bone fracture, or missing pneumonia in a patient that they diagnose with asthma. Without the benefit of a CT scan, a patient diagnosed with a concussion could actually have a serious head or neck injury that can have permanent repercussions.
Damages from pain and suffering are, therefore, subjective. There is no formula and certainly no standardized calculation for pain and suffering. It is the job of the jury (or the judge if there is no jury) to determine what is fair and reasonable, which they will often do based on their own life experiences. The jury will consider whether the plaintiff is credible and sympathetic. This subjectivity means that damages from pain and suffering can vary tremendously from case to case -- even if the underlying injury is the same.
If you have had emotional distress and sought counseling or treatment from a psychologist or psychiatrist, be sure and keep medical bills, prescription receipts, and records detailing your emotional state. It is important to be as genuine and honest as possible, even though it can be difficult to reveal private, personal information, There is no point in exaggerating your problems, as this can diminish your credibility and actually negatively affect your claim worth.
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.