Montana Medical Malpractice Lawyer
Medical mistakes and medical errors kill and injure thousands of people a year. We represent clients who suffer serious permanent injuries as a result of the carelessness or negligence of doctors, dentists or other medical care providers. No matter how careless a medical provider has been, under the law, the value of the case is solely dependent upon the injuries suffered because of that carelessness. Some common types of medical malpractice claims include a doctor whose carelessness causes an injury, a doctor who makes an existing injury worse, or a doctor who fails to diagnose an illness, or fails to diagnose it quickly enough. Other examples include:
- Birth defects, birth injuries and cerebral palsy
- Brain injuries and traumatic brain injuries (TBI)
- Emergency room delays and negligent treatment
- Failure to diagnose cancer, heart attack, meningitis, stroke or other disease
- Informed consent violations regarding benefits, risks, and alternatives to surgery
- Medication and prescription negligence
- Misdiagnosis or late diagnosis
- Obstetrical and gynecological malpractice
- Spinal cord injuries, paraplegia and quadriplegia
- Surgical negligence by a doctor or surgeon
- X-ray or diagnostic imaging misdiagnosis
Medical Malpractice - An Overview
Medical malpractice occurs when a negligent act or omission by a doctor or other medical professional results in damage or harm to a patient. Negligence by a medical professional could include an error in a diagnosis, treatment or illness management. If such negligence results in injury to a patient, a case could arise against the doctor if his or her actions deviated from generally accepted standards of practice; against the hospital for improper care, such as problems with medications, sanitation or nursing care; or against local, state or federal agencies that operate hospital facilities.
Medical malpractice laws are designed to protect patients' rights to pursue compensation if they are injured as the result of negligence. However, malpractice suits are often complex and costly to win. While theoretically, you can seek compensation for any injury caused by negligence, regardless of its seriousness, time and money make it unrealistic to sue for an injury that is minor or heals quickly.
Therefore, if you believe you have a medical malpractice claim, it is important to consult with an attorney who can help you determine whether your claim is worth pursuing.
Theories of Liability in Malpractice Cases
Negligence. Most medical malpractice cases proceed under the theory that a medical professional was negligent in treating the patient. To establish medical negligence, an injured patient, the plaintiff, must prove:
- The existence of a duty owed by the health care professional to the plaintiff (for example, a doctor/patient relationship)
- The applicable standard of care, and the health care professional's deviation from that standard, which is deemed a breach of the duty owed to the patient
- A causal connection between the health care professional's deviation from the standard of care and the patient's injury
- Injury or harm to the patient
One of the most important aspects of a medical malpractice action is establishing the standard of care to be applied to the health care professional. To find a medical professional legally at fault, it must be shown that his or her conduct fell below a generally accepted standard of medical care. To establish the standard to be applied, the plaintiff must present expert testimony not only as to the standard of care applicable, but that also establishes that the defendant failed to meet the standard. In cases where the defendant's violation of a standard of medical care is so apparent as to be comprehensible to the average person, expert testimony may not be required.
Another element of medical malpractice actions, causation, is sometimes difficult to establish. Specifically, the plaintiff must show that his or her health care provider's deviation from the applicable standard of care resulted in his or her injury. This is challenging because sometimes there may be other factors that contributed to the plaintiff's eventual injury.
Informed Consent
In many situations, the failure to obtain a patient's "informed consent" relative to a procedure or treatment is a form of medical negligence, and may even give rise to a cause of action for battery. Although the specific definition of informed consent may vary from state to state, it means essentially that a physician (or other medical provider) must inform the patient all of the potential benefits, risks and alternatives involved in any surgical procedure, medical procedure or other course of treatment, and must obtain the patient's consent to proceed.
Breach of Contract or Warranty
Although doctors very rarely promise specific results from procedures or treatments, in some cases they do, and the failure to produce the promised results may give rise to an action for breach of contract or breach of warranty. For example, a plastic surgeon may promise a patient a certain result, which result may be judged more easily than other types of medical results, simply by viewing the patient. Similarly, if a patient is not satisfied with the outcome of a procedure and the physician had guaranteed or warranted a certain result, the patient may attempt to recover under a theory of breach of warranty.
Legislation Affecting Malpractice Actions
Due to the power and resources of the health care industry, many states have passed legislation making it more difficult to bring and prevail in medical malpractice actions. In most states today, physicians and hospitals are protected by legal limits called "caps" on the amount of damages and attorneys fees that can be awarded in malpractice suits. In addition, barring extraordinary circumstances that affect the case, state laws provide set periods, called statutes of limitations, within which a plaintiff must file a malpractice action in court.
Certificate of Merit
One obstacle plaintiffs in many states may have to overcome before they can even file a malpractice action against a health care professional is the requirement that they file what is commonly known as a "certificate of merit." In order to file a certificate of merit, a plaintiff will first have to have an expert, usually another physician, review the relevant medical records and certify that the plaintiff's health care provider deviated from accepted medical practices, which resulted in injury to the plaintiff. The plaintiff's attorney then files the certificate of merit, which confirms that the attorney has consulted with a medical expert and that the plaintiff's action has merit.
Potential Defendants
Medical malpractice can be committed by several types of health care professionals, including doctors, surgeons, nurses, technicians and other hospital workers. In a case where a hospital employee commits malpractice, the hospital itself may be held liable under the legal doctrine of "respondeat superior." Under this theory, an employer may be held liable for the negligent acts of its employee if the employee was acting within the scope of his or her employment when the negligent act or omission occurred. This doctrine is important to plaintiffs in medical malpractice cases, because it helps ensure there will be a financially responsible party to compensate an injured plaintiff.
Conclusion
In general, there are no guarantees of medical results. An unanticipated or unsuccessful result from medical treatment or surgery does not, in itself, mean that medical malpractice has been committed.
Nonetheless, if you believe you may have been the victim of medical malpractice, you should meet with an experienced attorney as soon as possible to discuss the facts of your case and receive a professional evaluation of your situation.
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