It is hard to mention or even think about medical malpractice (medmal) without mentioning tort reform. Across the country, starting in the early 2000's, war was waged on the 7th Amendment. This was probably felt the most by the medical malpractice bar. Across the US, caps on damages, heightened burdens of proof, additional hurdles to file a case, and widespread propaganda has had the effect of severely crippling access to the courts by those victims of medical malpractice. Since 2005, most plaintiff's lawyers avoid medmal cases because they are so specialized and are cost prohibitive.
Ironically, the war on medmal cases was pointless. According to the Congressional Budget Office, medical malpractice premiums, litigation, and verdicts accounted for only 2% of overall healthcare spending. Furthermore, tort reform has had no effect on access to health care. The propaganda was well received in the US because health care costs were rising fast and the healthcare lobby (malpractice insurers, doctors, hospitals, well paid executives, etc.) jumped at the chance to scapegoat trial lawyers. Their argument was an easy one to make: healthcare costs are driven by greedy trial lawyers filing frivolous suits, and getting excessive verdicts thereby driving up the costs for everyone else and limiting the middle class' access to affordable health care. The results of tort reform have done nothing more than limit victim's access to the courts, increased incidents of medical negligence, and have failed to lower health care costs at all – even doctor's malpractice insurance premiums haven't decreased at all.
Medmal cases are rarely actionable. In order to proceed on these cases, one must bear in mind that it takes $50,000-$250,000 to litigate these cases. A viable case must have substantial damages and liability must be pretty clear – at least at first, because it almost never is actually “clear cut.”
Evaluating the Case
What does medical malpractice look like? I asked medmal expert Attorneys Moses Kim and Laurie Speed, and here are just a few examples they gave of how a doctor, hospital, or nurse's negligence can seriously injure or kill someone:
- Failing to diagnose deadly medical conditions such as heart attacks, strokes, and infections.
- Failing to timely diagnose or treat surgical complications.
- Failing to diagnose and treat testicular torsion or ovarian torsion.
- Birth injuries caused by failing to promptly perform a c-section leading to cerebral palsy or death.
- Birth injuries such as brachial plexus injures.
- Maternal deaths during deliveries.
- Medications errors caused by physicians, nurses, and pharmacists who ordered, approved, or gave the wrong medication, the wrong dose, or administered the medication to the wrong patient.
- Anesthesia deaths and brain injuries caused by prematurely removing a patient's breathing tube, failing to be prepared for a difficult airway, and intubating patients in the esophagus instead of the trachea (windpipe).
- Serious injuries or death caused by airway fires during medical procedures.
- Patients being awake or waking up during surgery due to the mismanagement of anesthesia.
- Failing to timely treat infections leading to extensive tissue loss or amputations of one or more limbs.
- Performing unnecessary medical procedures that cause serious and catastrophic injuries.
- Failing to monitor IVs causing IV infiltration and serious injuries to a patient's arm.
- Leaving surgical instruments and sponges in patients that should have been removed.
Statute of Limitations – In the state of Georgia, O.C.G.A. § 9-3-70 through § 9-3-74 governs the statute of limitations involving medical malpractice in Georgia. A claimant generally has 2 years from the date of injury, but no longer than 5 years with the statute of repose. The statute can be tolled for various issues like whether the Plaintiff was a minor at the time or for incapacitation, or even fraud. Statutes of limitation are critical in every case so always read the statute and know what dates your case is bound by.
Should I Even Bother With a Demand Letter?
In my experience, demand letters to doctors or hospitals are pointless as they are often just completely ignored. Invariably, suit must be filed to get any substantial recovery on a medical malpractice claim. Of course if your case is litigated and you know it has substantial value, you should always consider an Offer of Judgement fulfilling the requirements enumerated in O.C.G.A. § 9-11-68.
What do you need to prove?
In order to prove a claim for medical malpractice, you have to prove the doctor deviated from his/her standard of care. The standard of care for a physician is based on the degree of care and skill ordinarily exercised by physicians in the US (not just locally or in the same state) under the same or similar circumstances. Murphy v. Little, 112 Ga. App. 517, 521 (1963); Summerour v. Saint Joseph's Infirmary, 160 Ga. App. 187, 188 (1981). Further accentuating this uphill battle in medmal cases is that there is rebuttable presumption medical services were performed in an ordinary and skillful manner. Beach v. Lipham, 276 Ga. 302 (2003).
When alleging medical malpractice, the law requires you to submit with your complaint a standard of care affidavit written and signed by a licensed physician. As one can imagine the costs of having a skilled physician review thousands of pages of medical records is high.
The potential parties in a medmal case include the treating doctor, other supervising doctors, the hospital, nurses, anesthesiologist, or whoever else interacted with the patient/client.
Given that these cases are so costly, damages have to be extraordinary in a medmal case to rationalize bringing a case. Contact Paisley Law today for a free consultation to see if your medmal case is viable in a court of law.