Our medical providers have an obligation to exercise caution throughout the course of care. If any member of a medical team – physician, nurse, allied health professional, or hospital – fails to competently perform their medical duties, they may have committed negligence. Medical malpractice rules vary from region to region, but there are similarities that lay the groundwork for every claim. Our Billings injury attorneys have a thorough understanding of the rules and know when it has ventured into hospital negligence.
Requirements for Medical Malpractice
Like all personal injury cases, with a medical malpractice claim, the burden of proof is on the accuser. To provide proper evidence of medical malpractice, you must prove:
- That a formal doctor-patient relationship existed. To collect damages in a medical malpractice claim, you must show that you had a working relationship with the medical professional you’re suing. For example, you can’t sue a doctor over a casual conversation at a dinner party. If, however, the same doctor gave you advice during office hours that led to harm, you may have a case for medical malpractice. Proving a physician relationship is generally easy, but matters may become more complicated in a hospital setting, where doctors consult with one another instead of with patients directly.
- The doctor committed negligence. You can’t sue someone simply because you’re unhappy with your course of treatment or the results did not meet your expectations. In order to sue for medical malpractice, you must prove the doctor was negligent with your diagnosis or treatment. Negligence, as it pertains to medical malpractice, means that a physician or hospital violated their duty of care. In other words, you must show that the medical provider harmed you in a way that another provider of similar skill and training would not, given the same circumstances. A doctor is not required by law to treat you to the best of their ability, only with “reasonable care.” In order to prove negligence, you will require a medical professional to testify on your behalf, showing how the doctor deviated from the standard of care.
- You experienced harm as the direct result of negligence. It’s not enough for a doctor to commit negligence. Said negligence must directly lead to measurable harm. In medical malpractice cases, patients are often already sick or injured, so the courts decide whether your injuries are the result of negligence. If, for example, a patient dies after a long battle with cancer, this may not be the result of the doctor’s negligence, even if you can prove it occurred. Patients must provide sufficient evidence that their injuries were “more likely than not” a direct result of provider negligence. This also requires medical testimony.
- Your injuries led to measurable damages. Medical malpractice cases can be costly to litigate, so you must be able to prove that a doctor’s negligence led to specific injuries and damages. In other words, you can’t sue a doctor if you didn’t suffer any harm, even if a provider was negligent. Usually, there are two types of damages a patient can pursue. Economic damages compensate a victim of medical malpractice for medical bills, lost wages, and other expenses associated with physical recovery. General damages compensate for intangible losses such as physical pain, mental suffering, or loss of consortium.
These four principles form the foundation of any medical malpractice case. If you’re considering pursuing a claim, an attorney will first determine whether your case fulfills these requirements.
Examples of Medical Malpractice
Medical malpractice can cover a wide variety of scenarios, from failing to appropriately execute a medical procedure to errors in dispensing medication. Most medical malpractice claims have roots in one of the following:
- Failure to diagnose. Not all conditions are easy to diagnose, so failing to diagnose an exceptionally rare disease might not be medical malpractice. Negligence only occurs if a competent doctor would have discovered a condition or made a different diagnosis given the same circumstances, leading to a better outcome.
- Improper course of treatment. Again, dissatisfaction with treatment or an outcome is not the same as negligence. Improper treatment occurs when a provider treats a patient in a way another competent provider would not, violating the standard of care. This also applies when a physician chooses the appropriate treatment, but administers it incorrectly.
- Failure to warn of the risks. Chief among their duties is a provider’s responsibility to warn patients of any known risks accompanying a procedure or course of treatment. This is also known as informed consent. If you do not have informed consent prior to treatment, and you’re injured as a result, you may have grounds for a medical malpractice suit.
Common Types of Medical Malpractice
While these circumstances make up many medical malpractice cases, some types of provider negligence are more common than others. These are some of the most common subsets of medical malpractice:
According to the Food and Drug Administration, medication errors cause one death every day and injure an additional 1.3 million in the United States each year. These errors can occur anywhere in the packaging and distribution system, including:
- Prescribing – a physician may prescribe the wrong medication or wrong dose.
- Dispensing – a pharmacist may dispense the wrong prescription, wrong dose, or prescribe a pill that interacts with another drug a patient is taking.
- Administering – for example, when a nurse brings medications to patients on the same floor (medication mix-ups).
- Monitoring – failing to properly note when a patient took a prescription, leading to mix-ups in future administration.
While these are all possible scenarios, the most common medication errors regard dosage, or a patient getting too little or too much of a drug. This may happen one of several ways:
- A doctor may write the incorrect dosage on the prescription.
- The prescription may be the correct amount, but a nurse administers an incorrect dosage.
- Equipment that administers drugs, such as an intravenous pump, may malfunction and release a large amount of medication in a short time.
Birth injuries are, in and of themselves, a broad area of medical malpractice law. These injuries may occur to mother or baby (or both) at any time during pregnancy, labor, delivery, or the postpartum period. In some cases, evidence of birth injury may not be present for months, even years after the negligence that caused it. For this reason, birth injuries in Montana have a longer statute of limitations – up to three years after the child’s 8th birthday, in some cases. Examples of birth-related injuries in children include:
- Erb’s palsy. This condition is usually the result of prolonged labor, causing damage in the nerves of the upper arm. Children with Erb’s palsy may have weakness, loss of feeling, and even paralysis in one or both arms.
- Brachial plexus injuries. In cases of prolonged labor, children may break their arms in delivery.
- Klumpke’s palsy. Like Erb’s palsy, Klumpke’s causes nerve damage, weakness, and possible paralysis, but to the nerves in the lower arms.
- Shoulder dystocia. A newborn’s head and arms may become trapped in a mother’s pelvic bone throughout the course of delivery. If a provider fails to properly adjust the newborn, they may suffer fractures, difficulty breathing, or even maternal uterine rupture.
- Passing on maternal infection. Failure to properly screen a mother for infection may result in them passing on the illness to their child. Examples include Group strep and sexually transmitted infections.
- Brain injuries in childbirth. Common examples of neonatal brain injury include hypoxia, anoxia, and perinatal asphyxia. These are all kinds of oxygen deprivation that lead to severe side effects, often creating lifelong difficulties.
Wrongful Death of Unborn Child
In a worst-case scenario, provider negligence can lead to the death of an unborn child. This negligence may occur during pregnancy, labor, or delivery. When a newborn dies as the result of medical malpractice, the state of Montana allows parents to recover damages under wrongful death laws. According to state law, parents may recover damages for an unborn fetus, as long as it is “viable.” The wrongful death of an unborn child or fetus may be the result of:
- Negligent behavior on the part of an obstetrician, midwife, or any other member of the medical team during labor.
- A pharmacist or physician negligently prescribing medications that cause direct harm to the fetus or child.
If a neonate or fetus dies as the result of these actions, the provider causing the harm is liable for their death. While no settlement will help erase the grief of losing a loved one, a wrongful death claim can help parents gain financial relief and pay for unexpected expenses. In the case of gross negligence, attorneys will pursue punitive damages, which are designed to punish the defendant and discourage wrongdoing in the future.
Surgery can be a daunting prospect. Despite what providers may tell you, there is no such thing as a “minor surgery” when you’re the one on the table. Unfortunately, surgical errors do happen, generally under one of the following conditions:
- Preoperative errors. Surgeons prepare extensively for surgery, which includes contingency plans for possible complications. A surgical team must also equip the operating room with all the necessary tools for the surgery and contingency plans. Failing to adequately plan for a surgery and its complications may constitute negligence.
- Fatigue. Surgeons often work long hours and are on call as well. Hospitals have an obligation to ensure surgeons aren’t exceeding their duty hours, as this can affect their performance.
- Incompetence. Unfortunately, surgeons may make mistakes or violate the usual standard of care to cut corners or make a procedure faster.
- Operating under the influence. Surgeons are required to operate with clear minds. Any evidence of drug or alcohol use in the hours before a procedure constitutes gross negligence. Not only is this illegal, it is also grounds for a malpractice suit.
- Errors in communication. All members of a medical team must communicate effectively, from the anesthesiologist and technicians to the surgeon in charge. Any breakdown in this chain of communication can lead to errors. For example, a breakdown in communication may lead to a medication error, causing a deadly interaction.
- Neglect. Lastly, some surgeons are simply not as diligent as they should be. Sloppy mistakes such as failing to check to see if equipment is sterilized or failing to properly scrub in can lead to infections and other injuries.
There are many types of surgical errors, and it would be impossible to outline all the possible scenarios. Here are examples of what a negligent surgical error might look like:
- Leaving a surgical sponge in a cavity before closing
- Making an incision in the wrong area
- Amputating the wrong body part
- Operating on the wrong patient
- Performing the wrong operation
- Damaging a nerve during surgery
Medical Malpractice in Nursing and Veteran Homes & Hospitals
Many elderly Americans rely on nursing homes, veterans’ hospitals, and other healthcare institutions for their medical care and housing. When these institutions fail to meet an acceptable standard of care, an injured patient may be able to pursue a medical malpractice claim. Recently, a 77-year-old Korean War veteran died after wandering away from a Columbia Falls nursing home. A lawsuit from the victim’s granddaughter alleges that the nursing home staff failed to provide acceptable care and negligently contributed to her grandfather’s death.
After pursuing him from the facility, staff members acted negligently and agitated the patient, who suffered from advanced Alzheimer’s disease. Police responded, and an officer used a stun gun, causing the patient to fall to the ground face-first, resulting in a fatal head injury. The nursing home staff originally reported to the victim’s family that he had simply suffered an injury from falling. The family did not discover the police incident until several days later. The lawsuit alleges the nursing home is guilty of medical malpractice for the negligent care of the deceased patient as well as wrongful death due to negligence.
Lawsuits Against Nursing Homes
When a nursing home or assisted living facility fails to provide adequate care or causes injury or illness to a resident due to negligence, the victim and his or her family can pursue damages. If any aspect of the claim involves insufficient or negligent medical care, the case will likely fall under the purview of medical malpractice law, and the Montana Medical Legal Panel will need to review the case to determine its validity.
If the Panel approves a claim, the claimant can pursue a medical malpractice lawsuit against a negligent medical provider, such as a nursing home doctor or nurse. In some cases, the nursing home that employed a negligent employee, failed to adhere to applicable federal or state regulations, or failed to uphold acceptable hiring practices will likely absorb liability, as well. The claimant can pursue damages for elder abuse as well as the economic and non-economic damages resulting from medical malpractice. If such a case arises in a veterans’ hospital operated by the United States Veterans’ Association (VA) or other government institution, a few special provisions will apply.
Lawsuits Against the Veterans’ Association
Filing a lawsuit against any government entity or institution will typically involve a notice requirement of 180 days. This means the claimant has 180 days starting on the date of an injury to file a claim for it. The 2014 VA scandal showed that medical negligence has run rampant in many organizations and facilities that exist to provide medical care to veterans. Many veterans waited months or even years for specific procedures and treatment, and some of them died from unaddressed medical complications.
If a nursing home fails to provide adequate medical care for a veteran’s medical condition, such as Post-Traumatic Stress Disorder (PTSD), Alzheimer’s disease, or dementia, the nursing home and negligent staff members will face liability for the resulting damages. When an injury or abuse occurs in a VA facility, the process for filing a legal claim against the VA is more complex. For example, if the offending medical professional was a contractor and not a direct government employee, the statute of limitations for filing a claim may be much shorter.
It’s vital for an injured veteran to act quickly after suffering from medical malpractice or negligence in a nursing home or Veterans’ Association facility. A reliable medical malpractice attorney will help determine who is liable for the claimant’s damages and what types of compensation are available in the case. Montana does not cap economic damages in medical malpractice lawsuits, but there is a $250,000 cap on non-economic damages in these claims for things like pain and suffering.
I Think I Have a Case For Medical Malpractice. What Are My Options?
Medical malpractice cases have time limits, called a statute of limitations, that put caps on when people may pursue damages. In the state of Montana, you must file a medical malpractice claim within 3 years of the incident that caused the injury (the exception is birth injury, which may extend to 3 years past the child’s 8th birthday in some cases). You may also file up to three years after you discover the injury, given the use of “reasonable diligence.”
Don’t give the courts the opportunity to deliberate if the statute of limitations has passed. If you believe you may have a medical malpractice claim, contact a knowledgeable medical malpractice attorney as soon as possible, even if you’re unsure.
Your claim begins with a free initial consultation. A representative from our firm will review your case and decide if it has legal merit. If it does, we may offer our services on a contingency fee basis. This means you’ll only owe a fee if we win a settlement. This makes the process risk free for you and your loved one.
At Heenan & Cook, PLLC, we believe no one should have to pay the price for someone else’s negligence. We’ve been proudly serving Billings area families for over 40 years. To schedule your free case evaluation and begin your road to recovery, contact us.