One of the most frightening ways in which a person can be injured or harmed is through medical errors. We rely on medical personnel, from doctors to nurses and from radiologists to physical therapists, to rescue us from injuries and harm, not to inflict it. While we expect medical professionals to provide a certain standard of care, what do we do if they fail to do so?
Medical professionals have very likely chosen a career in the medical field because they desire to help people maintain their health and wellbeing. Medical professionals rarely inflict intentional harm.
But the fact is, medical providers are only human and errors do occur. Patients can be given the wrong diagnosis for their symptoms. As a result, the recommended treatment plan will fail to heal their ailments or make them worse. Surgical mistakes can involve operating on the wrong limb or part of the body. Surgical equipment can be left behind inside of a patient. Healthcare providers of all kinds can fail to perform certain necessary tasks and precautions. They may misread a chart or fail to note a patient’s drug allergies. Lapses in communication in an organization or between two healthcare providers may lead to serious and even fatal mistakes.
That’s where a medical malpractice lawyer can help.
Types of Medical Errors
There are many different types of medical errors. Medical errors can include actions taken by medical professionals or errors of omission.
One major type of medical error occurs when a medical professional recommends a patient’s treatment plan. Diagnoses may be wrong. Lapses in judgment can occur. Concentration or skill levels may be affected by individual tiredness, overwork, or systemic problems. Practitioners may fail to order necessary tests, forget a crucial step, or fail to follow up properly.
Another major type of medical error is a mistake in providing health care. Medication or procedures intended for one patient may be given to another. Test results or diagnostic procedures, such as X-rays, may be misread.
Medical error can also occur if staff fails to appropriately collect or deliver information. Providers can fail to collect a complete health history from a patient, to convey important information to the healthcare team or another provider, or to enter health information into digital systems accurately.
Improper treatment is another type of medical malpractice. A physician, for example, could select a treatment that is not part of standard practice within the field. Improper treatment can also occur if a part of a standard practice is chosen, but not administered correctly or completely.
Finally, another type of medical error is termed “failure to warn.” Some treatments, unfortunately, come with risks. Medications may have side effects, or a course of treatment may cause adverse effects. Courses of treatment may not have a high success rate or result in limitations for the patient.
Medical providers have a duty to warn patients of known risks. The patients must provide informed consent when agreeing to any medical treatment plan. The failure to warn patients of known risks may be malpractice if a patient would not have undergone the treatment had they been fully informed of the risks.
Do you have any recourse if you or a loved one has suffered from a medical error that has caused you injury or harm? Yes, Washington law provides a remedy for victims who suffer harm due to the negligence of medical professionals. Injured victims may file a medical malpractice claim against a specific healthcare provider, organization, or institution.
As you may expect, medical malpractice cases can be very complicated. It’s important to know how the legal process works and what recourse can be sought. Below we discuss the rights of injured parties to seek compensation for the injuries resulting from a medical professional’s negligence.
What Do I Need to Bring a Case Against a Party Who Made a Medical Error?
Hire a medical malpractice lawyer who knows how to litigate cases like yours. Medical malpractice is a type of personal injury law. Three things are common to personal injury claims. First, to bring a claim against either a provider or an organization, there needs to be proof that they were negligent in their duties.
Negligence is a legal concept that means a person or other entity failed to exercise the standard of care that a reasonably prudent person would have or should have exercised in similar circumstances.
For medical providers and para-medical providers (physical therapists and technicians, for example), the standard of care is codified into law. The standard of care refers to the duties of healthcare providers specifically. The Washington statutes define the standard of care as follows:
“[T]hat degree of care, skill, and learning expected of a reasonably prudent health care provider at that time in the profession or class to which he or she belongs, in the state of Washington, acting in the same or similar circumstances.”
In other words, the standard of care provided in cases of medical error is subject to comparison against the care, skill, and learning in the same profession and class in similar circumstances. A doctor’s care is compared to the care a similar doctor in the state would have given, generally. The treatment provided by a cardiologist would be compared against generally accepted practices in cardiology. A neurologist’s treatment practice against generally accepted practices in the field of neurology. A pharmacist’s care would be compared with pharmacist’s practices across the state, and so on for all types of healthcare providers.
Second, you must have been injured or harmed by the medical error. If you were not injured or harmed, the law does not provide recourse, even if an error was committed.
Third, the injury or harm you suffered must have been directly caused by the medical error, and not some other cause. Establishing causation can be complicated in medical malpractice cases. Of course, patients who seek treatment are suffering from medical conditions. Any symptoms involved in a medical malpractice suit must result from the medical error involved, not an underlying illness or condition.
Proving negligence and injury in Washington state requires establishing specific elements. In a medical malpractice claim, the injured patient must present evidence that establishes the standard of care in the patient’s case. Next, the injured party must show how the provider failed to provide the standard of care. Lastly, victims must prove that their injury resulted from the treatment provider’s failure to provide that standard of care.
The Statute of Limitations
Like most legal cases, medical malpractice cases are subject to a statute of limitations. The law provides that medical malpractice cases must be filed within a certain time period following the injury. When the time period expires, the injured party will lose their legal right to bring their claim.
In Washington, the statute of limitations for medical malpractice cases is within three years of the date on which the medical error occurred. In the alternative, a patient may be unaware that a medical error occurred for some time following the incident. In that case, the statute of limitations provides injured victims one year from the date of discovery of the error to bring their claim.
In some cases, the statute of limitations is also one year from the date of actual knowledge of the injury. For example, the patient may not know that a foreign object was left inside him or her, or the doctor or facility may have intentionally concealed the error.
Washington also has a statute of repose that applies to medical malpractice cases. A statute of repose requires that all cases be filed within a specific time frame. In Washington, the statute of repose for medical malpractice must be filed within eight (8) years of when the medical error occurred. This is true regardless of whether you discovered it or obtained information about it later. Beyond eight years of the date of injury, a court will in all likelihood refuse to hear a claim.
What Recourse Do Patients Injured by Medical Errors Have?
In all personal injury cases, injured people can sue for compensation for any resulting damages. Cases asserting medical malpractice are no exception.
In Washington, patients can sue for economic damages (sometimes called special damages) and non-economic damages (sometimes called general damages). Depending on the impacts of the injuries, injured parties may be compensated for both types of damages.
Economic damages are designed to compensate an injured patient for out-of-pocket costs they have incurred as a result of a medical error. They may also compensate an injured patient for future costs they can expect to incur as a result of the injury.
Economic damages may include:
- Unreimbursed medical bills, including those for doctor’s care, surgery, hospitalization, prescription medication, and diagnostic procedures
- Medical bills expected for future-related care that won’t be reimbursed
- Chronic or long-term care
- Physical therapy
- Assistive equipment and home modifications
- Lost wages from time needed off work to recuperate
- Lost earning capacity, if the injury limits the ability to work at a former occupation
In some cases, a Washington court may allow a party to make periodic payments of economic damages, rather than a lump sum payment.
Non-economic damages are more subjective, because there are not specific quantifiable monetary costs that the injured party has paid for medical care. Non-economic damages may include:
- Pain and suffering
- Impairment of or damage to personal relationships
- Negative effects on the patient’s quality of life
- Difficulties coping with disabilities and limitations
In Washington, the amount of non-economic damages an injured party may seek is capped by law. Non-economic damages may not exceed an amount over 43 percent of the average yearly wage in the state, multiplied by the plaintiff’s life expectancy, which must be at least 15 years.
Medical Error Cases: The Procedure
Nearly all states have specific legal procedures that injured victims must comply with when bringing a claim against a party that alleges a medical error. Why? In many cases, it is intended to protect medical professionals from frivolous lawsuits (those without merit). However, in practice it has made medical malpractice suits complicated and subject to additional procedures that other personal injury claims are not subject to.
Consult an attorney who is familiar with the procedures associated with filing a medical malpractice claim. Procedural errors can hurt an injured party’s ability to obtain compensation for their injuries.
The procedures require that the deviation from standards of care and the merits of the medical malpractice case be established before a case can be pursued.
Certificate of Merit
First, the injured patient or their lawyer must include a certificate of merit as part of their medical malpractice claim. The certificate of merit must be signed by a qualified expert. The certificate needs to explicitly state that the defendant (the party who committed the medical error) likely didn’t provide the standard of care, given the available information.
Medical malpractice attorneys work with medical and healthcare experts whose experience and credentials can validate a certificate of merit.
Mediation Is Mandatory
Washington law also requires mandatory mediation for claims based on medical error. Mediation is a form of dispute resolution offered as an alternative to the court system. A mediator will attempt to facilitate an agreement that both parties will find acceptable. A mediation agreement is nonbinding (ie, neither party has to agree to the terms), but the process itself is required.
If mediation is handled by experienced people, the process frequently results in a favorable settlement for the injured victim. But a mediator is not a judge or jury in the court system. Because of this, the agreement does not hold the same legal weight as a court order. In addition, a mediator may not award additional damages.
Attorney Certification of Reasonable Inquiry
To file a medical malpractice case, attorneys need to certify that they have conducted a reasonable inquiry and certify that they have reason to believe the claims are not frivolous.
An initial inquiry is a typical aspect of any legal case. An attorney needs to be reasonably sure that the defendant has been negligent, for example, and that they have evidence to support their claim. Without this kind of investigation and inquiry, a legal case cannot possibly be successful. But it is especially important in Washington state, because it is part of the medical malpractice procedure.
How a Medical Malpractice Attorney Can Help
Cases based on medical error, as you can see, can be complicated. They are unusually dependent upon people with medical expertise in a wide variety of fields. In addition, medical malpractice cases require the parties to attend mediation.
An experienced medical malpractice lawyer regularly fights for the rights of injured victims to seek the compensation they are entitled to.
If you need more information, contact an experienced medical malpractice attorney today.
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Seattle, WA 98121