Last month’s lawsuit by a Birmingham man claiming his penis was partially amputated during a circumcision brings attention to the on-going problems related to medical negligence. The American Medical Association recognizes that medical negligence is the third largest cause of death in the United States, following only heart disease and cancer in causes of death in the United States.
Between 2003 and 2013, adverse action was taken against over 10,100 providers for violations and there were 827 medical malpractice payments made to victims of medical negligence in Alabama alone. (http://www.npdb.hrsa.gov/resources/npdbstats/npdbStatistics.jsp). Nationwide, adverse action was taken against 377,081 providers and medical malpractice payments were made to 160,619 victims of medical negligence. (http://www.npdb.hrsa.gov/resources/npdbstats/npdbStatistics.jsp).
Even with those alarming statistics, a lot of those claims are against the same doctors. A 1990 study by the National Practitioner Data Bank found that just 5.1 percent of doctors account for more than half of all medical malpractice payouts. Of the 35,000 doctors who had two or more malpractice payouts, only 7.6 percent of them were disciplined. More strikingly, only 13 percent of doctors with five medical malpractice payouts have ever been disciplined. (http://www.medmalfacts.com/facts-and-myths/)
The question then becomes: what is medical negligence or medical malpractice? Medical malpractice occurs when a health-care provider deviates from the recognized “standard of care” in the treatment of a patient. The “standard of care” is defined as what a reasonably prudent medical provider would or would not have done under the same or similar circumstances. Basically, the question is whether the provider was negligent.
Unfortunately, when it comes to medical malpractice, you cannot prove negligence using the “common sense” approach that is used by jurors with other types of negligence claims. This is because bad results can happen, even if the medical provider did nothing wrong. There are recognized potential side effects from every medical procedure and, even with the best health care provided, people die and surgeries are unsuccessful. Because of this standard, before pursuing a medical negligence claim, the victim’s medical records and treatment records must be evaluated by a substantially similar medical provider. So, if an emergency room doctor is the doctor that committed the medical negligence, another emergency room doctor is the doctor that has to evaluate the patient’s records to determine whether medical negligence occurred. It normally costs tens of thousands of dollars to hire a doctor to evaluate and testify in a medical negligence case.
Because of the legal requirements to prove medical negligence in a court of law, another big factor in evaluating medical negligence cases are the injuries suffered by the victim. For example, we once evaluated a case where a patient was treated at an emergency room for glass in his hand. The emergency room removed some of the glass but sewed up the patient’s hand with glass still in it. After our client continued to suffer, he was evaluated at another facility, the additional glass was discovered, an additional surgery was performed, and he made a full recovery. Unfortunately, even though there original facility and doctor were clearly negligent for leaving glass in the patient’s hand, because he made a full recovery and there were no permanent injuries, the case was not viable to pursue. The majority of medical negligence cases are not pursued because the injuries are not severe enough to justify the financial and emotional toll of pursuing a medical negligence case.
The best thing to do is to try to avoid being the victim of medical negligence. Here are some steps to try to avoid becoming a medical negligence statistic:
- Be proactive about medical care. Do research to understand your health condition, and document your symptoms.
- Ask health-care providers a written list of questions that you feel are important, and demand full and complete answers.
- Do not be intimidated by the medical system.
- Speak up and advocate for your own well-being.
- If you sense that something is wrong, tell your health-care providers. Although it’s important to trust your doctor or nurse, it’s also important to listen to your body … and use common sense.
6) Have a family member or friend accompany you on important visits to health-care providers.
Finally, if you think you or a loved one have been a victim of medical negligence, contact a qualified attorney and get some answers. It is important to try to prevent medical negligence but also important to get answers if you think it has occurred.