Medical malpractice is said to be taking place when a medical practitioner is acting in a negligent manner while undertaking treatment of some medical condition. The medical malpractice law is a branch of personal injury law. This deals with pain and suffering caused owing to some gross mistake(s), negligence or bad judgment on the part of a doctor or other medical practitioner.
Failure to diagnose or wrongly diagnose a disease or medical condition, failure to provide right treatment for the condition and unreasonable delay in treating a medical condition diagnosed are common examples of medical malpractice that are sought to be redressed by enforcement of medical malpractice law.
The roots of the medical malpractice law can be traced back to the nineteenth century English common law. The general law body dealing with injuries to people or property- the tort law included the laws that developed concerning medical malpractices.
In order to win a genuine negligence lawsuit filed regarding medical care the person injured bears the onus of proving that he/she had obtained considerable medical care and such care was the causative of the injury. In the first place a person injured during treatment has to ascertain whether the harm has been the result of inadequate care. Usually the physicians and other medical care providers are not legally bound to tell the patients that they got hurt by medical care that was less than adequate. So, it is the patients themselves (those who suffer adverse outcomes) who need to approach and consult other professionals in the medical field to find out facts. The patient could have been under the care of multiple health care providers in which case the particular provider responsible for the injury needs to be determined.
It may be noted that a medical malpractice lawsuit need be brought within a period prescribed by law. This is referred to as a ‘statute of limitation’. Upon bringing the lawsuit the court will inquire into a number of issues prior to deciding whether the medical malpractice has actually occurred. If evidences available provide sufficient indications that medical malpractice has actually occurred then remedial/compensatory/punitive action is ruled.
It needs to be borne in mind that medical malpractice cases are very expensive to litigate and the recovery of damages may be limited by statute. The necessary advice in the regard that is sought from medical experts can be costly too. The highly technical nature of medical malpractice litigation makes it best suited to first approach an attorney who specializes in medical malpractice law with the case. Such attorney will be having the resources needed in order to develop the case, hire the right experts and to take the case for trial at court if necessary.
Somdev Mukherjee is a Kolkata (India) based writer of articles, short stories, poems and web content related to finance, mortgage, debt consolidation, insurance, laws and other topics of interest. Somdev is presently associated with article world,JMC garments and nathinfosoultions as a content developer and manager.
A patient comes to a medical professional to heal or treat an ailment. When the opposite happens, that the patient is injured or the situation worsens because of a mistake on the part of the health care provider, this is called medical malpractice.
Malpractice occurs when a doctor or a health care professional deviates from the standards which are accepted in the medical profession. It is mostly the doctor who has the final say in the procedure or treatment that a patient undergoes.
Once a medical practitioner veers away from the standard medical practice and it results to serious injuries or complications on the patient’s health, this is considered malpractice.
In cases where a medical practitioner is accused of malpractice, another health care professional is asked of the procedure that is applicable in the circumstances of the patient. He should have done what is expected of a practitioner who is under the same situation.
The worst case scenario is when a patient dies inadvertently due to the mistake on the part of the doctor.
First, take a look at the mistakes which classify as medical malpractice:
1. injuries relating to birth
2. incorrect dosage and dispersal of medicine or error with prescription
3. incorrect or delayed diagnosis of an ailment
4. improper treatment
5. surgery mistakes
6. failure to refer to a medical specialist
7. health complications from anesthesiologists
8. improper procedures performed on emergency rooms
9. abuse of patients in nursing homes, children’s ward and other medical institutions
10. mistakes with the general treatment of a patient
There are cases where a healthy part of the body is removed because of incorrect diagnosis. A delay in the delivery of a baby may result to more serious complications.
More specifically, malpractice occurs when the medical professional neglects to perform his or her duties on a timely and efficient manner. Just like with any other aspect in our lives, negligence would always have negative results.
In the medical profession, there should be zero tolerance for negligence because people’s lives and their health are at stake.
‘Medical Malpractice Laws and Cases’
The laws regarding malpractice in the United States may differ from state to state. They are changed from time to time and some laws may apply only to particular circumstances.
If you have a relative or a friend who may have suffered or died due to medical malpractice, then you may consult a lawyer in your state who specializes in such cases. Make sure that the lawyer that you will consult has an extensive experience in this field so that you will have the best legal support possible. You may also review past medical malpractice cases to learn more about this.
If you have a medical malpractice case, it would be difficult to immediately recognize whether you have a good or bad case against the health care professional.
Just like in criminal or corporate law, each case is unique and has its own downsides and merits. Your lawyer may need to work through all the details about the case.
Most of these cases are dragging and consumes a lot of your time and expenses. Talk with your lawyer before deciding to file a case. Most legal practitioners would first consider t he financial and legal merits of your case before they formally proceed to court.
Medical malpractice is a growing problem in the United States. When filing a medical malpractice lawsuit, make sure that you have a lawyer on your side who will adequately defend your rights.
Robert Thatcher is a freelance publisher based in Cupertino, California. He publishes articles and reports in various ezines and provides malpractice resources onhere
What is medical malpractice? Well it is when a doctor messes up and causes a worsened problem with a patient or god forbid makes a mistake due to negligence or ignorance and then the patient dies. In this case the legal professionals or lawyers sue. But too often the lawyers are suing in cases that are not legitimate negligence cases and this is a huge cause for alarm. One has to ask what if we could sue lawyers for Legal Malpractice.
For instance when they sue the wrong parties, lie or make up false claims and file them into court or give bad advice to their clients causing them to lose a case that they clearly should have won? Shouldn’t we be able to sue the lawyers and make them pay for our losses? I mean that would be fair right?
And just think of all the horrible lawyers out there who should not be practicing law, because they are incompetent? What about them; I say we have legal mal practice laws and these lawyers pay who mess up pay huge sums of money when they do. That would be the right things to do under the law.
We seem to be living in legal hypocrisy these days as the lawyers get off scott-free and the doctors pay super high premiums for medical malpractice insurance and these costs get passed onto the consumers and patients while the lawyers run a muck. Consider this in 2006.
Lance Winslow, a retired entrepreneur, adventurer, modern day philosopher and perpetual tourist.
A new Medicare law, effective July 1, 2009, requires liability insurers (which include carriers who write CGL policies, auto policies, homeowners’ policies and those defendants who are self-insured such as supermarkets) to determine and report whether a claimant is covered and is entitled to Medicare benefits. If the claimant received Medicare benefits Medicare is holding out both hands to make sure they get 100% reimbursement.
The growing Medicare shortfall in Washington has many politicians looking for ways to bridge the funding gap. As a result a new law, effective July 1, 2009, has been enacted which requires liability insurers (which include carriers who write CGL policies, auto policies, homeowners’ policies and those defendants who are self-insured such as supermarkets) to determine and report whether a claimant is covered and is entitled to Medicare benefits. If the claimant received Medicare benefits during their treatment for the injury, Medicare is holding out both hands to make sure they get 100% reimbursement, despite the comparative negligence of claimant.
This new law will pose new challenges for plaintiff’s attorney, the insurance carrier for the defendant and the mediator who is attempting to resolve the claim. If the attorney or insurance carrier does not comply, they risk being sued by the Government for reimbursement up to five years post-closure and monetary fines.
What is the new law?
On December 29, 2007, President George Bush signed into law the “Medicare Medical, and SCHIP Extension Act of 2007.” The new legislation amends the Medicare Secondary Payer Act (MSA) by establishing new reporting guidelines beginning July 1, 2009. Under the new rules, all liability insurers, and self-insurers will be required to determine whether any individual who files a claim against the insurer or any entity insured or covered by the insurer is entitled to Medicare benefits. If so, the insurer must provide Medicare with that individual’s identity and any other information that maybe required under the law. This information must be furnished to Medicare within the time specified by after the claim is resolved through settlement, judgment, award or other payment (regardless whether or not there has been an admission or determination of liability). If an insurer fails to notify Medicare in accordance with these guidelines, a civil penalty of $1,000 per day will be charged per claimant. The new legislation clearly indicates a shift in policy which will result in the federal government monitoring general liability claims more closely. The fines represent a new enforcement push by Medicare to hold attorneys and insurers liable.
What does it mean for Plaintiff’s Attorney?
Plaintiff’s attorney will begin to take a closer look at the case he or she accepts. The attorney should change the client intake form to ask very comprehensive health related questions, whether the client is entitled to Medicare, how long has he been on Medicare, which type of Medicare and whether the claimant has used Medicare to obtain treatment for his/her injuries. The client should be advised in detail about the new Medicare Recovery Act and that Medicare is looking for 100% reimbursement, not taking into account if there is any comparative negligence. The client should be told there is no hiding from Medicare because it will be notified upon a settlement or judgment and the lien may take months if not years to resolve.
Think twice before accepting a small personal injury case involving Medicare recipients where liability is disputed. A settlement amount will have to cover Medicare charges up to 100%, attorney fees and provide money for the plaintiff. If that type of recovery does not seem likely consider rejecting the case.
However, Baby Boomers are increasing and may be a good part of an attorney’s personal injury practice. It is estimated that in the next couple of years, approximately 25% of the Country’s population will consist of baby boomers who are Medicare recipients. If the claimant has undergone limited treatment using Medicare and needs additional treatment, consider advising the healthcare provider to bill plaintiff directly or consider finding a doctor who will take the treatment on a lien. This way a Medicare lien will be avoided or at least a very minimal lien incurred. If liability is undisputed, have the medical provider bill the insurance carrier directly.
What if the attorney has a case where Medicare has a substantial lien? If it is before July 1, 2009, consider settling the claim before that time. If you cannot, again advise the client of the new Medicare Recovery Act and the reporting requirements.
If there is a settlement and Medicare does not know about it and mistakenly pays for services it has a right to recover, it can go after the attorneys whose fees are paid out of the settlement. Also the Medicare recipient can lose his or her benefits. Lawyers could be exposed to malpractice claims for not handling a client’s benefits properly. Insurers can be liable for monetary fines for failure to report. If a plaintiff loses his Medicare benefits, the plaintiff may bring a legal malpractice claim against the attorney and a bad faith claim against the insurer for not making sure Medicare benefits were protected.
After July 1, 2009, makes sure the claim is settled for an amount that will cover the Medicare lien. It may be possible to comp the lien, but do not count on it. In making settlement demands, assume that you will pay Medicare 100% reimbursement in what is paid out. Make sure all charges refer to the injuries that your client sustained. Medicare will not be speedy to resolve these claims, so discuss with the client about holding the amount in a trust account until the CMS lien is resolved rather than disbursing the entire amount owed to plaintiff.
It is unknown whether plaintiff’s attorney will have to worry about set asides calculations for future medical care and submit them to Medicare for approval. Currently, there is no formal process of liability settlements for future medical care.
Finally, negotiations with the liability insurance carrier will become more difficult. They will demand information about your client, such as social security number, so that they can comply with the requirements and avoid fines. Also, even though Medicare may ignore the comparative negligence issues, Insurance adjusters will take the position that despite Medicare’s 100% reimbursement, it will not pay 100% of the medical bills. An insurance carrier will not want to increase the cost of a claim and stand firm on its position.
This new law will pose challenges for the plaintiff’s attorney who is attempting to resolve the claim. The key is to be aware of the Medicare Reimbursement ActComputer Technology Articles, and to prepare the parties prior to a settlement of the barriers that the Medicare Recovery Act may present.
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ABOUT THE AUTHOR
Elizabeth A. Moreno is a mediator and arbitrator and is a principal of Centurion Mediation, LLC which provides quality mediation for less than $300 per hour at a location convenient to the parties in the Los Angeles, California area. Ms. Moreno has mediated and arbitrated over 300 matters. She is serving a three year appointed term with the State Bar of California ADR Committee. Ms. Moreno practices in the following areas Insurance, Personal injury, Employment, Business Disputes, Real Estate, Malpractice, and Residential Construction Defect.
