Medical Malpractice Frequently Asked Questions
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Can I File a Lawsuit for a Misdiagnosis?
If you were the victim of a misdiagnosis, you might be able to sue the doctor or medical facility whose mistake caused the incorrect diagnosis. Let’s say that you went to the doctor to find out why you had certain symptoms, but your physician diagnosed you with a disease or condition you did not have.
As a result, you might have undergone unnecessary procedures, endured pain from your untreated condition, and lost valuable time treating your actual ailment. Eventually, you received the correct diagnosis after going through physical discomfort, mental anguish, and financial expense.
You probably want to know if you can sue the medical professional who misdiagnosed you. If the doctor violated our state’s standard of reasonable care, you might be able to file a medical malpractice lawsuit.
Misdiagnosis Alone Does Not Equal Malpractice In Every Case
A misdiagnosis does not always mean that the physician committed malpractice. For example, if the laboratory mixed up your test results, your lawsuit might be against the lab, not the doctor.
On the other hand, if the physician should have known the flawed test results were wrong, the doctor might have breached the duty of care. By way of example, if the lab reported that your thyroid biopsy showed advanced cancer, but your surgeon biopsied your lung, not your thyroid, then your doctor had reason to question the lab results.
Misdiagnosis Versus Failure to Diagnose
A failure to diagnose is different from a misdiagnosis. A misdiagnosis happens when the medical professional diagnoses you with something you do not have, such as mistaking pancreatic cancer for stress-related inflammatory bowel syndrome.
A failure to diagnose is when you tell your doctor about symptoms you are experiencing, but they fail to diagnose your condition. For example, if you went to the emergency room with all the classic symptoms of kidney stones, but they say it is just food poisoning and tell you to go home and drink plenty of fluids, they have failed to diagnose your actual condition.
The Requirement of Measurable Harm
Georgia law requires quantifiable harm for medical malpractice. If you did not suffer quantifiable harm, you do not have a claim. The law usually measures damage in dollars or physical harm. If the misdiagnosis caused you to incur additional medical expenses or compromise your health, those facts satisfy the requirement of measurable harm.
Let’s say that a patient had cancer, but the doctor misdiagnosed it as something else. A year after the patient reported the symptoms that should have caused the physician to explore the possibility of malignancy, another doctor discovered the cancer. In the intervening time, the cancer progressed to an untreatable stage. The patient suffered quantifiable harm.
On the other hand, if the original doctor realized the mistake one day after the misdiagnosis and called the patient back in to begin appropriate treatment, there was nomeasurable harm. Emotional distress by itself is not quantifiable harm for purposes of misdiagnosis.
Georgia’s Standard of Reasonable Care for Medical Malpractice Lawsuits
The misdiagnosis must violate the doctor’s statutory duty to practice medicine using a “reasonable degree of skill and effort.” GA Code § 51-1-27 (2016). The law does not hold medical professionals to a standard of perfection. The mistake must be a failure of the duty of reasonable care to amount to medical malpractice.
Getting Help for a Misdiagnosis Lawsuit In Georgia
The Law Office of Jason R. Schultz, PC can help you if you or a loved one was misdiagnosed. We will analyze the facts to see if a medical professional committed medical malpractice. Call us today at 404-474-0804 to set up your free consultation.
What Is the Standard of Care for Medical Malpractice Cases?
If you have experienced an unexpected result from your medical care or if your doctor misdiagnosed you, you might be asking whether there is anything you can do about it. An unfavorable outcome alone is not enough to win a medical malpractice case. The doctor or medical professional must have failed to act within the standard of care.
Georgia Statute on Medical Malpractice
The section of the Georgia Code that gives plaintiffs the right to file medical malpractice actions is GA Code § 51-1-27 (2017), which states the following (emphasis added).
“A person professing to practice surgery or the administering of medicine for compensation must bring to the exercise of his profession a reasonable degree of care and skill. Any injury resulting from a want of such care and skill shall be a tort for which a recovery may be had.”
Elements of Medical Malpractice in Georgia
Analyzing that statute, we see that it contains three elements. We have to prove all three facets of the statute to prevail in a medical malpractice action. The factors are:
- The person you want to sue (defendant) must be someone who professes to practice surgery or administer medicine for compensation, and
- The defendant must have failed to bring to the exercise of his profession a reasonable degree of care and skill, and
- The lack of care or skill must be the cause of an injury.
What Constitutes a Reasonable Degree of Care and Skill
When “reasonableness” is the yardstick by which we measure conduct, you can get different results in cases with similar fact patterns. Reasonableness is a judgment call.
If you accuse a person of exceeding the speed limit, you can measure the speed of the person’s vehicle and compare it to the legal speed limit. Establishing a violation is a simple matter.
Violating the standard of care in medicine is not such a straightforward task. You may work with expert witnesses who can testify that the doctor failed to act with a reasonable degree of care and skill.
Examples of Possible Violations of the Standard of Care
Although doctors have some leeway in how they perform procedures and practice medicine, there are some protocols that the medical community at large will agree are essential. If a doctor deviates too far from these rules, other members of the medical establishment might have the opinion that the doctor violated the standard of care.
Since these situations are usually fact-centered, it is best to use hypotheticals to try to understand the standard of care. Here are a few:
Accepted diagnostic testing. A woman went to the urgent care center complaining of a severe sore throat and pain when swallowing. She had a fever of 102.5, body aches, headache, and little red dots at the back of the roof of her mouth.
The urgent care doctor told her to take Tylenol, drink lots of orange juice, and get plenty of rest. The doctor did not perform a strep test or put her on antibiotics.
The woman did, indeed, have strep throat, which is a bacterial infection. The untreated strep led to post-streptococcal glomerulonephritis, which is inflammation of the kidney. She sustained permanent kidney damage.
The doctor’s failure to perform a strep test was likely a violation of the standard of care, which could make the doctor liable for medical malpractice.
Accepted treatment. A man went to the emergency room with a mangled hand from a dog bite. He reported that a stray dog attacked and bit him. The dog then ran away with an unusual gait. The man said that the dog had frothy saliva around its mouth.
The emergency room staff cleaned and dressed the wound, using sutures where appropriate. They gave the man painkillers and told him to see his primary care doctor if he saw any signs of infection. They did not administer rabies shots or advise the man about the possibility of rabies.
Over time, the man began to feel as if he had the flu and had itching around the bite area. He became confused and agitated, then experienced hallucinations.
The man’s family took him to the emergency room, but once a person shows the signs of rabies, there is no effective treatment. The man died of rabies.
The emergency room staff’s failure to address the possibility of rabies was likely a violation of the standard of care, at the level of medical malpractice.
Accepted level of skill. A woman asked her dermatologist to recommend a plastic surgeon to repair her facial scars from a car accident. The dermatologist said that he could perform the surgery. He did not tell the woman that he had no training in or experience with the type of procedure she needed.
The dermatologist botched the surgery, causing much worse disfigurement. The doctor’s failure to bring a reasonable degree of skill to the treatment of his patients was a violation of the standard of care and subjected him to a medical malpractice claim.
Accepted level of care. A man went into an outpatient surgical center to have his tonsils removed. Unbeknownst to him, since he was under general anesthesia, the surgeon was under the influence of opioids, to which the doctor had an addiction. The painkillers caused the surgeon to be less precise in his surgery, and he permanently damaged the man’s vocal cords.
Performing surgery while under the influence of drugs was a violation of the standard of care. The surgeon can be liable for medical malpractice.
Getting Legal Help for Medical Malpractice in Georgia
Although we discussed several hypothetical scenarios, you do not have to sort out whether the doctor or medical facility violated the duty to exercise a reasonable degree of care and skill. We can help you analyze if you have a medical malpractice case and then build a case to prove medical malpractice liability.
Just give us a call today at 404-474-0804 today for your free consultation.
How Can Patients Prevent a Surgical Error?
Few things make people more anxious than an upcoming surgery. We have all heard the horror stories about a doctor botching the procedure and leaving the patient to face a lifetime of adverse consequences of the surgical mistakes. There are several steps you can take to reduce your chances of being the victim of a surgical error.
Five Serious Surgical Errors and How to Prevent Them
The medical community keeps track of significant surgical errors. Medical professionals are supposed to report Serious Reportable Events (SREs) that happen during a surgery or other invasive procedure.
Here are the five categories of SREs and steps you might take to prevent these accidents from happening to you:
One error is the surgeon unintentionally leaving a foreign object inside the patient. Some foreign objects should remain in the patient, such as plates and screws to repair and stabilize a shattered bone. Other items, like sponges or clamps, can cause life-threatening infections, perforate organs, and create extreme pain if accidentally left inside the body after surgery.
While you cannot keep this from happening, you can discover right away if the surgical team left behind any unwanted souvenirs. Get a copy of the surgical notes. Read the pre-surgical count of sponges, clamps, and other objects and make sure it matches up with the post-surgical inventory.
Mix Up With Patients
With the high numbers of patients going through pre-op, anesthesia, surgery, recovery, and post-op in busy hospitals and outpatient surgery centers, sometimes the staff mix up the patients or their charts.
To make sure that the doctor knows which patient you are during the surgery, insist that your doctor, anesthesiologist, or another medical professional who talks with you in pre-op writes your name and the type of surgery with a surgical marking pen at the place on your body where the doctor will operate.
Wrong Type of Surgery
Surgeons are human beings, and sometimes they make mistakes, such as performing the wrong type of surgery on the patient. You do not want to wake up in recovery to discover that you had a complete hysterectomy when you went in to have a cyst removed.
The incorrect procedure is another error that you can prevent by having a member of the medical staff in pre-op write your name and the type of surgery at the incision site on your body with a surgical marker.
Wrong Part of the Body
Another serious surgical error is when the surgeon performs the correct type of procedure on the right patient but on the wrong part of the body. For example, the doctor removed the healthy kidney instead of the malignant one. The patient is left without a functioning kidney.
If you have the pre-op team write the name of the body part, for example, “right kidney” at the incision location and “NO” over the left kidney, you can sharply reduce the odds of a mix-up.
When a patient of normal health who does not smoke or abuse alcohol dies during or shortly after surgery, the surgical team must report the occurrence. Sometimes these patients die from previously undiscovered medical conditions, but others are the victims of medical error. Prevention of these errors will depend on the type of surgical mistake.
Damages for a Medical Malpractice Claim from a Surgical Error
If you are the victim of medical malpractice, you can get compensation for the losses you suffered, including:
- Additional medical expenses
- Additional lost wages
- Physical pain and mental anguish (pain and suffering)
- Depression and loss of enjoyment of life
What We Have to Prove to Win Your Case
We will have to prove medical malpractice with these elements:
- The surgeon had a legal duty of care toward you. Doctors must treat their patients with the same level of competence that other doctors would exercise in similar situations. When we show that you were the patient, the law will infer the duty of care.
- The doctor failed to perform up to the standard of care required by law. If the doctor made a mistake that a typical doctor in a similar situation would not have made, the doctor breached the duty of care. This breach is negligence. We will hire a medical expert to establish that your surgeon committed medical negligence.
- The negligence caused the harm you suffered. Our medical expert will testify as to this element of medical malpractice.
- You suffered measurable harm, like having to undergo additional surgery to remove the sponge accidentally left inside of you, as a result of the doctor’s negligence. We will use your medical records to prove the harm you suffered.
How to Get Legal Help for Surgical Error
At the Law Office of Jason R. Schultz, PC, we help people who have suffered harm because of medical mistakes. If you think that you or a loved one might be the victim of medical malpractice, we can investigate to see if you might be eligible for compensation. To set up your free, no-obligation consultation, please call us today at 404-474-0804.
Are Medical Malpractice Awards Taxable?
You might have to pay taxes on some portions of your medical malpractice award. The IRS considers some aspects to be taxable income for purposes of your federal income tax return, but other parts are not. Georgia will only tax your medical malpractice award if the IRS does.
How to Determine How Much of Your Medical Malpractice Award is Taxable
You have to break your settlement or award down into its various components to find out how much of it is taxable. The main areas of medical malpractice compensation cover four areas.
Physical Injuries or Illness
You will not have to pay taxes on the part of your award the legal documents designate for your physical injuries or illness. If you deducted your medical expenses from your taxes in a prior year and got a tax benefit by doing so, you will have to include the amount deducted from your taxes. It will be “other income” on line 21 of your federal income tax Form 1040.
Compensation for lost wages are subject to federal and state taxes and Social Security and Medicare taxes. The reason you have to pay all these taxes on this portion of your settlement is that these funds replace the wages you lost because of the malpractice, and wages are taxable.
Emotional Distress or Mental Anguish
If the damages for your distress were because of a physical illness or injury, the compensation is not taxable. You will have to claim taxable income as any deductions you took for those medical expenses on your taxes in previous years, if you received a tax benefit from those deductions, just like with medical expenses for physical injuries or illnesses. On the other hand, if your emotional distress or mental anguish was not the result of physical injury or illness, your compensation is taxable, subject to reduction by certain medical expenses for treatment of your distress.
The IRS will tax the portion of your award designated as punitive damages, whether for physical injury or illness, for mental distress, or some other reason. Include this portion of your settlement on line 21 of your federal income tax Form 1040 as “Other Income.”
Taxes on Interest You Receive on Your Medical Malpractice Award
Sometimes judges award interest on damages awards to compensate the successful plaintiff who had to wait a long time to get paid, particularly if the case went up on appeal. You will have to pay taxes on the interest you receive on your award. The amount will go on line 8a of your IRS Form 1040 as “interest income.”
IRS Publications with Additional Information on the Taxability of Medical Malpractice Awards
The IRS provides two publications to help you sort out the taxability of your malpractice compensation.
The Law Office of Jason R. Schultz, PC handles medical malpractice and personal injury claims. We are not tax lawyers. This article is for informational purposes only. You should talk with a professional tax advisor about the tax issues of your medical malpractice award.
For a free consultation and case evaluation of your medical malpractice claim, please call us at 404-474-0804.
What Are Medical Malpractice Caps?
The term “medical malpractice caps” refers to statutory limits on the amount of damages you can receive through a settlement or court’s judgment in your medical malpractice claim. The Georgia statutes place no limits on economic damages in medical malpractice cases.
Georgia law does, however, limit how much a person can recover for non-economic damages in medical malpractice cases. The Georgia Supreme Court declared the statutory cap on non-economic damages in these cases to be unconstitutional in 2010, but the law is still on the books. Experts debate whether the law is enforceable.
The Statutory Limits on Non-Economic Damages in Medical Malpractice Cases in Georgia
The statutory limit on non-pecuniary damages does not apply to losses for past or future medical expenses, rehabilitation, therapy, lost wages, diminished earning capacity, income, funeral or burial costs, the value of lost services, or other monetary losses. The statute (which the Georgia Supreme Court declared unconstitutional in 2010), limits successful medical malpractice plaintiffs (including malpractice that results in wrongful death) to the recovery of non-economic damages of no more than:
- $350,000 total against one or more healthcare providers– regardless of how many healthcare provider defendants named and alleged to be negligent in the case
- $350,000 total against a medical facility and all entities and persons who may be vicariously liable
- $700,000 total against all medical facilities – regardless of the number of medical facility defendants named in the case and alleged to be negligent
- The total of all non-economic damages cannot exceed $1,050,000 – regardless of the number of defendants alleged to be negligent.
The Georgia Supreme Court Case That Declared Medical Malpractice Damages Caps Unconstitutional
In 2010, the Georgia Supreme Court heard the appeal of Atlanta Oculoplastic Surgery, P.C. v. Nestlehutt et al., (Nestlehutt), from a trial court ruling that the Georgia statute that limits non-economic damages in medical malpractice cases was unconstitutional. The Georgia Supreme Court agreed with the trial court that the damages caps are unconstitutional because they encroach on the right to a jury. Juries, not legislatures, are supposed to determine the amount of damages a plaintiff should receive.
Nestlehutt involved a patient who suffered disfigurement from complications after plastic surgery on her face. The trial jury awarded a total verdict of $1,265,000, which included $115,000 for past and future medical expenses, $900,000 for the patient’s pain and suffering, and $250,000 for her husband’s loss of consortium claim. The trial court declared the damages caps statute unconstitutional and entered judgment for the full amount the jury awarded. The state Supreme Court affirmed.
Types of Damages in Medical Malpractice Cases in Georgia
There are three main categories of damages potentially available in medical malpractice actions in Georgia:
- Economic damages: This category includes medical expenses, lost wages, decreased earning capacity, ongoing medical care and assistance, home and vehicle modifications, and other out-of-pocket expenses you incurred because of the medical malpractice. Economic damages are also called “financial losses.” There are no limits on these damages under Georgia law.
- Non-economic damages: This category includes non-financial harm you suffered as a result of the medical malpractice, including physical pain, discomfort, and suffering, emotional pain and suffering, mental anguish, anxiety, distress, hardship, inconvenience, disfigurement, disability and physical impairment, loss of enjoyment of life, loss of consortium, loss of companionship, and other non-economic losses that arose from the malpractice.
- Punitive damages: Punitive damages in Georgia are sometimes limited to $250,000. Judges assess punitive damages to punish a wrongdoer, not to compensate victims, which is why in some cases, most of the damages go to the state treasury, not to the injured person. Judges rarely award these damages in medical malpractice cases because there must be proof the defendant did not merely make a mistake, but rather acted with malice, fraud, intent, or with conscious disregard for the consequences of the defendant’s actions.
If you or a loved one has suffered harm from medical malpractice, the Law Office of Jason R. Schultz, PC, can help. Call 404-474-0804 to get a free consultation.
How do I report medical malpractice?
How you report medical malpractice depends on your definition of report. Victims and their families can report medical malpractice to the Georgia Composite Medical Board, the Secretary of State, or by filing a lawsuit.
How do I report medical malpractice to the state?
It depends on whom you are reporting. The Georgia Composite Medical Board (GCMB) regulates doctors, doctors in residency training, physician assistants, hospitals, and several other types of medical professionals. You can report malpractice online or mail in the form. There is no time limit for reporting malpractice to the GCMB.
To report malpractice of any other licensed healthcare professional in Georgia, you should contact the Georgia Secretary of State’s office. This includes medical malpractice complaints against nurses. Although the Georgia Board of Nursing regulates nurses, the Secretary of State handles complaints against nurses.
How do I file a medical malpractice lawsuit in Georgia?
In Georgia, as in many states, you cannot just go to the courthouse and file a medical malpractice lawsuit. You must first get a written, sworn document from an expert who says that the healthcare provider committed malpractice. The expert must identify the specific act of malpractice, and the evidence you provide must support these allegations. You must file this in court with your complaint.
Is there a time limit to file a medical malpractice lawsuit?
Yes. Per GA Code § 9-3-71, you must file the lawsuit within two years of the malpractice that caused the harm or death, unless the injury did not show up right away. Even if you did not discover the harm until long after the act of malpractice, you only have five years from the negligent act to file suit.
There are, however, two exceptions to the rule of filing a medical malpractice lawsuit within two or five years in Georgia. If the health care provider fraudulently concealed the malpractice to keep you from finding out about the negligence, the time limits do not start to run until you discover the negligent act. If your doctor left a foreign object inside you (e.g., left a surgical sponge in after surgery), you have one year after discovering the object to file a lawsuit. This could be many years after the negligent act.
Why is it important to have a lawyer handle your medical malpractice lawsuit?
Medical malpractice lawsuits are complicated and difficult. Both sides will have medical experts. There will be highly technical medical issues. Doctors and other health care providers have malpractice insurance companies with teams of lawyers protecting them. These cases are aggressively defended. You need a knowledgeable medical malpractice lawyer fighting for you.
If you have been injured or a loved one has died as a result of medical malpractice, the Law Office of Jason R. Schultz, P.C. can help. Call us today at 404-474-0804 for your free consultation with an Atlanta medical malpractice attorney.
Can you sue a doctor for misdiagnosis?
Yes, you can sue a doctor for misdiagnosis, if the misdiagnosis violated the standard of reasonable care and resulted in quantifiable harm. Misdiagnosis by itself is not automatic grounds for a lawsuit.
What is the standard of reasonable care for purposes of medical malpractice?
GA Code § 51-1-27 requires anyone who practices medicine to use a “reasonable degree of skill and effort.” Anyone injured as a result of the medical professional’s failure to exercise the required level of care and skill can sue to recover damages.
Doctors are not expected to cure every medical condition, but they are required to meet the standard of reasonable care when they treat you. They should give your medical condition the attention it deserves, run the appropriate tests, interpret the results accurately, and prescribe the correct treatment. If they do not, they may be liable for any harm that results.
When can I sue a doctor for misdiagnosis?
As we stated above, you can only sue a doctor if quantifiable harm results from a misdiagnosis.
Quantifiable harm is damage that can be measured, usually in dollars. Consider the following example: Maggie was admitted to the hospital for evaluation of her extreme fatigue. Her primary care doctor ran some tests and told Maggie that the test results indicated that she had leukemia. Later that day, her doctor went over Maggie’s test results again and realized he had misinterpreted her blood work, and she did not have leukemia. He immediately went to her hospital room and told her the good news. Although Maggie was relieved to not have leukemia, she was outraged at her doctor’s mistake.
Because Maggie did not suffer any physical harm as a result of the misdiagnosis, she did not have a malpractice case against her doctor. No adverse actions were taken and there were no negative medical consequences to Maggie as a result of the incorrect diagnosis.
However, if Maggie’s doctor had not realized his mistake until a later date, and Maggie had undergone chemotherapy, Maggie could sue for the financial, emotional, and physical costs of the treatment.
Is misdiagnosis the same thing as failure to diagnose?
No. Misdiagnosis is when a person has one medical condition but is incorrectly diagnosed with a different medical condition. Failure to diagnose occurs when a doctor misses the signs of a medical condition and does not diagnose a person’s medical condition.
For example, Don had a stroke. He went to his doctor immediately, complaining of a severe headache, dizziness, and blurred vision. Without running any tests, his doctor misdiagnosed him as merely having a migraine headache. Because Don’s condition did not improve, he went to the emergency room two days later. The emergency room immediately ran the proper tests, discovered the stroke and began treatment. As a result of the misdiagnosis, there was delay in treatment, causing Don to suffer permanent paralysis and speech impairment.
This is different from failure to diagnose. For example, Mary went to the emergency room complaining of severe pain on the right side of her lower abdomen, along with nausea and vomiting. She had a low-grade fever. The emergency room doctor did a thorough physical exam and ordered all the standard tests for appendicitis, including blood work, urinalysis, and an abdominal x-ray.
All the test results indicated that Mary had appendicitis, but her doctor accidentally looked at the wrong file and did not diagnose the appendicitis. Instead of having the needed treatment, which would be to have her inflamed appendix removed, Mary was sent home with pain pills. During the night, her appendix ruptured. She later died from peritonitis, an infection throughout her abdomen, caused by the ruptured appendix. Her death was a direct result of the emergency room doctor’s failure to diagnose.
Are there special rules for suing a doctor in Georgia?
Yes. In fact, if you want to a medical professional for malpractice in Georgia, including medical doctors, you must jump through extra hoops. O.C.G.A. § 9-11-9.1 requires you to file an affidavit with your complaint when you file a medical malpractice lawsuit against a doctor.
The affidavit must be from an expert who is competent to testify about the area of medicine your doctor practices. The expert must swear in the affidavit that at least one act or omission of your doctor was negligent, and must lay out the facts of such a claim.
Call a medical malpractice lawyer today.
A medical malpractice claim can be immensely complicated, but you do not need to go through it alone. If you have been harmed or someone in your family has died as a result of medical malpractice, call a medical malpractice lawyer at the Law Office of Jason R. Schultz, P.C. today at 404-474-0804 for your free consultation.
Can I sue an eye surgeon who made a Lasik eye surgery mistake?
Yes, you can sue the surgeon if s/he made an unreasonable Lasik eye surgery mistake and you have suffered damages. Not all mistakes indicate negligence, though. There are several elements that must exist to have a viable case, a few of which we’ll briefly review below.
Lasik Surgery Gone Wrong
Lasik surgery is a procedure in which an ophthalmologist uses a laser to cut into and reshape the cornea to improve vision. It’s used to treat vision issues such as myopia, astigmatism, and hyperopia. Most patients have excellent results with this corrective procedure.
However, not all patients are good candidates for Lasik surgery. If the screening process isn’t handled correctly, or if the surgeon made a mistake with preparation or during the procedure, there can be severe detrimental outcomes. Some of the risk patients face with botched Lasik surgery include the following.
- Losing partial vision
- Being over- or under-treated and still requiring corrective lenses
- Developing debilitating symptoms, such as halos, double vision, and glare
- Developing severe dry eye syndrome which can cause discomfort and reduce clarity of vision
- Developing night blindness
Suing the Eye Surgeon after Lasik Surgery
To have a viable lawsuit against the ophthalmologist, you’ll need to be able to prove several elements. First, you’ll need to establish what the reasonable standard of care is for this particular treatment, and then show that the surgeon somehow deviated from that standard. This is accomplished using testimonies from medical experts. If the doctor made a mistake that other physicians would not have made in the same situation, then you can likely pursue a malpractice claim against him/her. Below are a few common reasons eye surgeons are sued after Lasik surgery.
- Inadequate screening (Patients will be large pupils, dry eyes, and thin corneas are not suitable candidates.)
- Wrong surgery techniques
- Defective equipment
- Improper attention to post-surgery issues, such as inflammation and infection
After proving that the surgeon breached the standard of care, you’ll have to be able to show that you sustained actual harm because of the doctor’s mistakes. This can be substantiated using medical records, testimonies, and other documentation.
Free Consult with a Lasik Lawyer in Georgia
If you sustained complications because of your eye doctor’s mistakes with your Lasik procedure, we invite you to call a medical malpractice attorney at The Law Office of Jason R. Schultz in Georgia. You will get a medical malpractice lawyer who fights for full and fair recovery for your damages. Call today at 404-474-0804 for a free consultation.
Is failure to diagnose considered medical malpractice?
Yes, failure to diagnose can be considered medical malpractice in many circumstances. It’s a very tricky area of the law, though, and each case is different. Below we’ll discuss some of the essential elements of a medical malpractice case, but for answers specific to your situation, you’ll want to contact a medical malpractice attorney in your area.
Negligence: The Cornerstone of a Medical Malpractice Case
Not all delayed diagnoses or misdiagnoses justify a medical malpractice claim. Even the doctors who exercise the utmost care in their profession can still make mistakes and fail to identify a condition. For the case to be considered malpractice, there has be to evidence that the doctor was somehow negligent, that s/he did not adhere to a reasonable standard of care.
In other words, would doctors with similar credentials under similar circumstances be apt to make the same mistake that your doctor made? If so, then the case likely can’t be substantiated. However, if most doctors would testify that your doctor made an unreasonable mistake that was clearly out of the scope of regular practice, you might have a viable case worth pursuing.
Below are a few examples of negligence that can lead to a failure to diagnose.
- Failure to use industry standard diagnostic tools
- Ordering the wrong tests
- Failure to read your medical history
- Overlooking significant symptoms
- Not recognizing known risk factors
- Misinterpreted test results
Elements of Medical Malpractice Case
There are several elements that must be established to file a claim or suit against a medical provider.
- The provider owed you a duty of care.
- The provider breached that duty, acting in a way that was negligent and outside of the reasonable standard of care.
- You were harmed because of the physician's negligence. Had the doctor correctly diagnosed you, you would have suffered such a degree of damage.
Note, not all failure to diagnose injuries are the doctor’s fault. If there were errors in the lab tests, then your doctor may not be liable, but another party might.
- The laboratory
- The lab equipment manufacturing company
- The transport company (an ambulance, an emergency aircraft, medical first-response system)
Your attorney can investigate liability and determine which party should be named as a defendant.
Have your questions answered? Get a Free Legal Consult Today
If you were harmed because of your doctor’s failure to diagnose, you'd want to speak to a lawyer straightaway about your legal options. Contact The Law Office of Jason R. Schultz in Georgia to talk to a medical malpractice attorney and determine whether or not you have a valid medical malpractice case. Call 404-474-0804 today.
Can I change a claim for medical malpractice into a survival action if injuries were fatal?
When an injured party dies prior to settling a medical malpractice claim that legal action can be continued as a wrongful death claim by immediate family members or representatives. This process is called a medical malpractice survival action, and it essentially changes the beneficiary of the lawsuit from the injured party to the deceased's surviving relatives and dependents.
Georgia's survival action statute for the continuation of medical malpractice claims as wrongful death states that only certain family members are eligible for this action. In the wrongful death of an adult, the surviving spouse is the first to be eligible to continue their malpractice claim in a survival action as a wrongful death claim. If no spouse is present, the decedent's child or children are next in line to represent the claim.
The survival action for a child's wrongful death claim can become complicated if the parents are divorced or separated. This situation is one where a wrongful death lawyer is extremely helpful to ensure everyone is fairly represented.
Survival actions for medical malpractice claims have many additional rules and requirements in order to carry them over to a wrongful death claim. Additional evidence of negligence may be required, and once the claim is settled, the settlement must be properly disbursed to the respective dependents and representatives.
In cases of medical malpractice that result in the death of the patient where a family member cannot bring about a survival action, a representative of the injured party's estate may continue the wrongful death claim. The Law Office of Jason R. Schultz, P.C. can help your family determine the next course of action when your loved one's medical malpractice claim turns into a survival action and wrongful death claim. Call our office today at 404-474-0804 to schedule an appointment for a FREE consultation.