A Johns Hopkins study suggests that medical error is the cause of around 250,000 deaths a year in the U.S., placing it behind only heart disease and cancer as a leading cause of death. For every death resulting from a medical error, hundreds of thousands of injuries are also caused by the same issue. Individuals who have been injured or who lost a loved one due to a medical error can seek compensation through medical malpractice claims. However, many potential claimants are unsure what qualifies as a medical error and whether they are eligible for compensation.
Not All Medical Errors Result in Medical Malpractice
Mistakes are a regular part of the provision of medical care and one of the driving reasons behind the push for automated systems and redundancy built into policies regarding treating patients in a medical facility. However, many of these errors will never be reported outside the facility's walls because they did not result in harm to a patient.
Medical errors resulting in death or injury to a patient are considered medical malpractice. Those who have suffered financial and emotional losses due to medical malpractice can seek compensation through a medical malpractice claim. The claim is initially filed against the at-fault provider's medical malpractice insurance policy.
Suppose the insurer fails to compensate the claim. In that case, it can also be filed in civil court as a medical malpractice lawsuit for a judge or jury to hear the case's facts and make decisions on liability and compensation.
Common Types of Medical Errors That Do Lead to Medical Malpractice Claims
Just as not all medical errors are considered medical malpractice, neither are all bad outcomes of a procedure. Many pharmaceutical or surgical treatment plans have known risks and complications, even when the provider has done everything right. Here is a look at some medical errors that can lead to a medical malpractice claim.
According to the Society to Improve Diagnosis in Medicine, diagnostic errors are discovered in up to 20 percent of autopsies performed in the U.S., suggesting that up to 80,000 deaths a year result from errors in a patient's diagnosis. This is one of the most common examples of medical malpractice. The National Academies of Science, Engineering, and Medicine defines a diagnostic error as the failure to establish an accurate and timely explanation of a patient's health problems or to communicate that explanation to the patient.
Diagnostic errors generally fall into at least one of the following three categories:
- Delayed diagnosis refers to a diagnosis that was not immediately made and resulted in the treatment that the patient needed to effect a good outcome on their health status.
- Misdiagnosis involves a provider diagnosing a patient with one medical condition and treating them for that condition when they have a different medical condition requiring another type of treatment. An example of misdiagnosis often occurs when a provider tells a patient they have acid indigestion when, in truth, the patient is suffering a heart attack.
- Missed diagnosis occurs when a patient complains of a particular symptom and the provider never diagnoses or treats a condition that causes that symptom.
Errors in diagnosis affect an estimated 12 million people in the U.S. each year, and one-third of those people will suffer a severe injury due to the error.
According to the U.S. Food and Drug Administration (FDA), a medication error refers to “any preventable event that may cause or lead to inappropriate medication use or patient harm” while the medication is in the control of the patient, the provider or a consumer. In addition to hospitals, dental offices, clinics, and other healthcare facilities, as well as doctors and other medical staff, pharmacists are also considered providers. They are subject to claims filed due to injuries or death resulting from their error.
Common medication errors include:
- Providing the wrong medication to the patient
- Providing the wrong dosage of medication to the patient
- Administering too much or too little medication to the patient, including anesthesia medication for a surgical procedure
The FDA receives more than 100,000 reports of medical errors each year. Some of the ways they are attempting to reduce this number are by
- Ensuring that the proprietary names associated with a medication are not similar to other types of medication,
- Requiring the labels for different dosages to be easy for providers to differentiate, and
- Ensuring that the label instructions provided to patients are clear and easy to follow.
There are few types of medical errors as frightening as those that involve a doctor performing surgery on the wrong patient or the wrong body part. While these errors are relatively rare—with such errors occurring only once in around 112,000 surgeries—they do happen.
Other types of surgical errors are much more common, including:
- Accidental incisions, which involve a doctor cutting into the patient before realizing that they made a cut in the wrong area and are required to cut again to perform the initial procedure
- Damage to neighboring organs, blood vessels, and nerve endings as a result of carelessness during the procedure
- Leaving a surgical tool, sponge, or towel in the body cavity after the completion of the procedure
- Using the wrong instrument or having a surgical instrument malfunction during the procedure
- Failing to monitor the patient for signs of distress during the procedure or in the hours or days following
Errors in Patient Care
Healthcare providers often perform diagnostic and laboratory tests and provide pharmaceutical or medical treatments for their patients' ailments. However, they are also expected to provide reasonable instructions to assist the patient in caring for their condition after a surgical procedure or after being treated in the hospital.
Errors in patient care that can result in medical malpractice include:
- Premature discharge of the patient from a medical facility after a procedure without ensuring that the patient is stable and not suffering any complications.
- Failure to provide adequate home care instructions when discharging the patient from a medical facility would provide them with information about how to continue caring for their medical condition.
- Failure to obtain a complete medical history from the patient that would help the provider to determine whether to use a particular type of treatment, such as learning about the patient's family medical history, known allergies to certain kinds of medication and a list of the medicines that the patient is already taking.
The birth process is traumatic, and it is not unusual for an infant to suffer an injury. Birth injuries refer to a type of injury that occurs as a result of the health care provider's negligence.
Some examples of medical malpractice that can result in birth injuries include:
- A provider's failure to diagnose a medical condition in the mother or baby would indicate the need for a C-section to protect the health of either.
- Failing to monitor the infant's vital signs during and in the hours after birth.
- Premature discharge from the hospital without ensuring that the infant's condition is good and they do not need additional care.
- Failure to use birthing tools such as forceps or vacuum suction properly.
- Failure to control blood loss in the mother after she has delivered the child.
Failure to Inform
Healthcare providers are not merely tasked with treating patients for injuries and illnesses but also providing information to them about the safety of the treatments that are being recommended so that they can be active participants in their health. To that end, providers are required to obtain consent from patients for the treatment they provide and to provide information about the risks and benefits of the suggested treatment before obtaining this consent.
Medical malpractice can occur when the provider fails to inform the patient of all known procedure risks. If the patient experiences severe risks, they likely would have opted for a different treatment had they had the information necessary to make that decision.
How Is Medical Malpractice Proven?
The process of obtaining compensation after a healthcare provider has made an error resulting in injury or death presents several challenges, not the least of which is proving that the doctor's error was the cause of the injury that was incurred. The patient is not always awake to witness the error being made. Doctors often do not tell their patients when they have made a mistake that worsens their condition. Usually, the mistake is not discovered until the patient's quest for answers regarding the new symptoms they are experiencing leads another provider to find the error.
To prove medical malpractice, your claim must satisfy each of these elements:
- A provider-patient relationship existed. This means that the patient actually hired the provider to treat them, and the provider accepted the task. Medical malpractice claims cannot be made off advice someone got from a friend who happens to be a doctor.
- The provider failed to provide the standard of care expected of them. The standard of care involves the decisions that a similarly educated provider of matching experience would be expected to reasonably make when faced with a patient with the same condition and circumstances. Unfortunately, this is often as subjective as it sounds, but generally refers to the conscious avoidance of making decisions that harm the patient.
- Because the provider failed to meet the standard of care, the patient's injury resulted in subsequent expenses and impacts.
What if You Cannot Afford to Hire a Medical Malpractice Attorney?
Many patients are afraid to file a claim against a trusted healthcare provider because they fear it will appear disloyal to the provider. Others are hesitant to afford an attorney because they do not think they can afford one. Fortunately, the contingent fee billing method used by medical malpractice attorneys allows you to hire the legal counsel you need to navigate a complicated claims process regardless of your financial status.
Here is how the contingent fee billing method works for medical malpractice claims:
- When you find an experienced attorney to assist you with your claim, you and that attorney enter into a contingent fee agreement, which is a legal agreement by which they provide services aimed at garnering compensation for the expenses and psychological impacts of your injury and designates a percentage of the settlement or award as payment for those services.
- Work begins immediately on your claim and continues without worry over whether you can afford a retainer or keep up with hourly billing cycles because neither of those issues are involved in contingent fee work.
- At the conclusion of your claim, your attorney receives the compensation provided to you through either a negotiated settlement or a court award. These funds are deposited into a trust account. From that account, your attorney satisfies any medical liens placed on the award by providers or group health insurers who provided or covered the treatment of the injury resulting from the malpractice. The attorney also withdraws the percentage of the amount designated as their payment.
- You and your attorney meet to finalize the case, and the remainder of the settlement or award is released to you.
While having an attorney is not legally required to file a medical malpractice claim, this type of claim is often a logistical nightmare for a claimant working independently without the benefit of an attorney's legal knowledge and experience.
If a medical error injured you or a loved one, a medical malpractice attorney can answer your questions and pursue a claim for you.