Investigating
Medical Negligence Cases
By: Dan Frith
How do you know if you, a family member, or friends have
been the victim of medical negligence? What information is
important? What are the issues? What are the types of
damages that can be recovered? How long do you have to take
legal action? These are all important questions and this
article will attempt to provide you with useful answers.
What Information is
Important? Our analysis of your potential case begins
with a thorough investigation and examination into your
medical history. Any previous hospitalizations regardless
of the reason may be important. We need to review your
medical records from your family or primary care doctor for
several years prior to the date of the treatment which you
believe was negligent. We will need to review all records
surrounding the treatment which you believe to have been
improper. Finally, we need to understand all medications
which have been ordered for you during the last several
years. No doctor or hospital can refuse to provide you with
a copy of your records – it’s the law! They may charge you
a fee for copying the records but must provide the records
within 15 days of your request. You do not have to inform
the health care provider that you are requesting the records
for review in a potential legal matter.
What Is Medical Negligence?
In Virginia, and most other states, a doctor, nurse,
dentist, or other medical professional is guilty of medical
negligence if their care of a patient is below what a
reasonably trained and experienced medical professional
would have done for the patient under similar
circumstances. This negligence may be the result of actions
or inactions by the medical professional. For example, if a
reasonable and competent Emergency Room doctor would order a
chest x-ray and cardiac studies for a patient with
complaints of chest pain and shortness of breath - then it
would be negligent for that doctor to fail to order these
tests to determine the patient’s cardiac status. Also, if a
reasonable and prudent nurse would not give 100 mg of
Demerol (narcotic pain medication) to a post-operative
patient who had already received post-operative pain
medication in the recovery room, then it would be negligent
for the nurse to give the patient the additional dosage of
pain medication.
What is Causation? Proving that the doctor, dentist, or nurse
was negligent is not enough to prove your case. You must
also be able to establish the negligence of the health care
professional directly caused injury or death. The easiest
way to understand this principle is to discuss a situation
where causation is not proven. Let’s assume that you are
cleaning the gutters from a ladder at your house and fall
and injure your arm. A family member takes you to the
doctor who orders x-rays, and after reviewing the films,
tells you that you have just bruised your arm and sends you
home. Upon returning home, and for the next 24 hours, the
pain in your arm becomes unbearable. You head to the local
hospital emergency room and additional x-rays are taken
which clearly establish that you broke your arm as a result
of the fall from the ladder. Yes, the first doctor was most
likely negligent in failing to diagnose your broken arm but
what damages were caused by the negligence? You would have
had a cast placed on your arm 24 hours earlier but would
still have endured a fair amount of pain. In other words,
you cannot prove that the first doctor’s negligence caused
you to suffer additional injury requiring additional medical
treatment.
What Damages May be
Recovered? Assuming you can establish that your doctor
or nurse was negligent and that such negligence caused you
further harm there are several different types of damages
which the law entitles you to recover. First, you may
recovery for additional medical costs/charges if the
negligence required you to remain in the hospital for a
longer period of time or receive medical care from other
doctors to fix the medical problem. Second, you may
recover any wages or income lost as a result of your
inability to work – even if you will be unable to work for
the remainder of your life. Third, you may recover for the
added “pain and suffering” which results from your doctor’s
negligence. Finally, you may recover damages for the loss
or reduction in the enjoyment of everyday life if your
injuries are permanent in nature and prevent you from doing
the things you have always done (i.e. golf, hiking, etc.).
How Long Do I Have to
Make a Claim? The general rule in Virginia is that you have
two years from the date of the negligence to file a civil
claim for damages. This time may be shorter or longer
depending on the facts of your case. The rule is different
for children who have suffered from acts of medical
negligence and there are different restrictions if the
defendant is a division or agency of the Commonwealth (i.e.
UVa. Medical Center, etc.) All claims, regardless of their
merit, are barred if filed after the expiration of these
cutoffs or periods of limitation. The best practice is to
consult with an attorney as soon as you have questions about
the medial care provided to you, your family, or friends.
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Dan Frith
is the founding partner of Frith Law Firm, P.C.,
a firm
focusing on medical malpractice, nursing home abuse, personal injury, lead paint poisoning and business torts. Copyright © 2004 by
Frith Law Firm, P.C. All rights reserved under U.S.
and international law.
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