MEDICAL MALPRACTCE; PART 1

The public has been led to believe through false information that medical malpractice cases are filed every day and that they are all frivolous. This is simply not true. The statistics back up the fact that civil lawsuits against doctors or the medical profession are not excessive. Medical mistakes are a huge cause of unnecessary death in the United States. You do not have to take our word. Do the research yourself. Hundreds of thousands of people died or are maimed each years due to preventable, medical errors. The public focus has not been on the real problem, which comes down to two issues: (1)the poor conditions in some hospitals,and (2) a small number of medical professionals who commit over 50% of the medical errors. Instead the Insurance Industry has side-tracked the issue and blamed high insurance premiums on the injured person and made them out to be the “bad guy.” How is the injured person the bad guy. The injured person is someone like your family member, loved one, relative or neighbor who went for medical treatment, expecting to get reasonably safe and up-to-date treatment and advice. Due to unsanitary condition at a medical facility, or due to the error of a medical provider, they end up damaged for life, unable to enjoy the relationship of family, friends, and all the things in life we enjoy. It is tragic and I suggest that every person reading this article ask themselves one question: Should any person or organization who harms another, be given a free pass from their conduct or negligence? If a corporation releases a toxic waste that pollutes our drinking water, or damages a neighborhood where children play, even causing damage to the kids or stay at home mothers, should that corporation be given a pass? If a dangerous product is released into a store with the company knowing it will seriously harm, maim, or kill consumers, and the company only wants the money and does not care, should the company get a pass? If a neighbor is talking on his/her cell phone and not paying attention while driving a car, and runs a red light, causing the death of a senior citizen crossing the road, or a child riding his bike, is a pass the right thing? And if a doctor causes a patent’s death by leaving a tool inside a patient during surgery, or administers the wrong drug, should the doctor get a pass? This is the heart of the issues confronted and dealt with by the American Legal System.

Medical malpractice cases are not things that have only recently started happening, though the uproar in our state would cause one to think otherwise. Medical malpractice cases have actually been around for hundreds of years. The first medical malpractice case was filed in 1794 and involved an operation performed in the “most unskillful, ignorant, and cruel manner, contrary to all the well-known rules and principles of practice in such cases.” Even the Code of Hammurabi (1750 B.C.) provided what is perhaps the earliest known proscription against medical malpractice: “If a physician make a large incision with the operating knife, and kill him…his hands shall be cut off.” While few would agree America should revert to this uncivilized manner of dealing with negligent doctors, at least some responsibility has been recognized for thousands of years and responsibility should be shouldered by a medical professional who cause a preventable injury to a patient.

Medical malpractice can be defined differently in various states, but essentially the definition is simple: Did the physician deviate from the accepted standard of care and is the deviation the proximate cause of the patient’s injury. Or put simpler: did the medical professional do something he should not have done, or fail to do something he should have done, and was the patient injured because of the action or failure to act. Here are some examples:

-When a physician operates on a patient but does a procedure outside the scope of the physician and patient’s original agreement, the physician operates without consent, and this is technically a battery.

-The doctor-patient relationship has a contractual basis. A deviation from the original agreement could be a breach of contract.

-The majority of medical malpractice cases are based on the theory of negligence – where a doctor had a duty to the patient, the doctor breached that duty, and because of that breach the patient suffered damages. All doctors are expected to act in the same manner as a reasonable, prudent professional would act.

In the state of Mississippi, malpractice actions against physicians, hospitals, nurses, and other medical providers must be filed within 2 years from the date that the alleged act or omission was, or with reasonable diligence might have been, first discovered. Notice of intent to sue must be given to the provider at least 60 days prior to filing suit. No medical malpractice action may be brought more than 7 years after the alleged act or omission, except for cases involving foreign objects left in a patient’s body and concealed fraud. Miss. Code Ann. Sec. 15-1-36. More Will be provided on this subject in Part 2.

Disclaimer: This blog is intended as general information purposes only, and is not a substitute for legal advice. Anyone with a legal problem should consult a lawyer immediately.

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