Medical malpractice is a difficult branch of law for a variety of reasons. Of course, not every problem that results from a hospital visit is malpractice, and even when it is, legal action is not always the correct course of action. Furthermore, who is legally responsible for malpractice varies based on the circumstances. Here are some factors to consider in regards to potential malpractice cases and hospital liability.
What Constitutes Medical Malpractice
In order to have a case, the alleged malpractice must have led to some sort of injury, whereas a mistake that is harmless has no legal weight. Furthermore, because of the expense of a malpractice suit, most attorneys will not take a case unless the consequences were severe, such as a permanent injury or a long term loss of work. Otherwise even a victory is not likely to make enough money to cover their expenses.
Determining Legal Responsibility
If one has a case worth pursuing, the next question becomes: “Who do you file a claim against?” The answer is usually either the doctor or the hospital, but different factors affect who is considered legally responsible.
A hospital is generally responsible for any actions carried out by its employees. However, most doctors are not actually employed by hospitals, but work as independent contractors. This means that if they make a mistake, the responsibility rests on them, rather than the hospital. However, other staff members, such as nurses, technicians and paramedics, are usually employed by the hospital directly, and thus the hospital is liable for mistakes that they make.
Conversely, hospitals are usually responsible for a doctor’s malpractice if they fail to inform the patient that the doctor was not their employee. To prevent this, most hospitals put this information in their admission forms. However, because it is difficult to give this information in the emergency room, in most states the hospital can be held legally responsible for a doctor’s ER errors. They can also be held responsible for retaining a doctor’s services if they had reason to believe that said doctor was not competent.
Lawsuit Against a Hospital
A range of hospital staff including physicians, nurses, and administrators may commit negligence, and a Harvard Study of New York Hospitals revealed that one of every 100 hospital patients leaves with an injury caused by medical negligence. Hospitals are generally held responsible for malpractice that is committed by a hospital employee. However, nurses and physicians who are attending a surgery and are not hospital employees may be responsible for their negligence.
Frequency and Types of Hospital Negligence
Four out of every 100 hospital patients are injured by avoidable medical mistakes, and the Institute of Medicine estimates that avoidable mistakes cause about 100,000 deaths annually.
Common negligence that results in lawsuits against a hospital includes the following: childbirth injuries, anesthesia errors, surgical infections and errors, misdiagnosis, and delayed waiting time in the emergency department.
Physician’s negligence during the delivery of a child can lead to devastating long-term consequences for the baby and the family. Many incidents are avoidable if the physician uses ultrasonography and fetal monitoring to assess risk factors prior to attempting vaginal deliveries. Physicians that overlook common risk factors for childbirth injuries may be at fault for medical malpractice. Risk factors and examples of negligence include the following:
- Rapid or delayed delivery
- Instrumental delivers that require the use of forceps or vacuums
- Fetal anomalies
- Failure to identify ectopic pregnancies
- Delayed cesarean section procedure
- Failure to anticipate birth complications due to size of the child and size of the mother’s pelvis
Birth related trauma and birth injuries may result if the physician does not properly take risk factors into account and handle them in a timely manner. Trauma and injury during childbirth can lead to long-term and permanent damage, such as:
- Soft tissue injury
- Brachial plexus injury
- Cranial nerve injury
- Laryngeal nerve injury
- Spinal cord injury
- Cerebral palsy
- Bone injuries, fractures and displacements
- Intra-abdominal injury
Medical staff that fails to give patients the correct type of anesthetic and the correct dosage, at the proper rate of injection may cause anesthesia overdose in the patient. Anesthesiologists must consider the patient’s age, weight, state of health, and other medications when administering anesthesia. One in 20 patients die from general anesthesia within a year. Medical staff that fails to properly monitor a patient or causes an anesthesia overdose in the patient or doctors who do not take action to reduce anesthesia toxicity put the patient at risk for serious injury or even death. Overdose may result from the following factors:
- Injecting the wrong anesthetic
- Injecting the anesthetic at an improper rate
- Injecting too much anesthetic
Surgical Infections and Errors
Doctors and surgeons are still performing errors in the medical room that can lead to infections and serious health complications or even death. Surgical error mistakes were estimated to occur in 40 patients per week in the United States. Several factors, such as physician fatigue, poor staff communication, and surgeon inexperience can lead to errors. Injuries that may result from such negligence include the following:
- Amputation error
- Operation on wrong patient, wrong side of patient or wrong part of patient
- Foreign instrument left in patient
- Nerve damage and injury
Patients who are misdiagnosed may suffer further problems if they were not properly treated for their initial health problem. Doctors who misdiagnose the patient and give them unnecessary treatment can cause a new medical issue and/or cause the initial health concern to worsen.
Delayed Wait Time In Emergency Department
Some hospitals that consistently exceed bed capacity and are improperly staffed compromise patient safety and lead to long waits in the emergency department. Management that does not respond to serious conditions can lead patients’ conditions to worsen as they wait to be seen by medical personnel. Several lawsuits have noted excessive wait times in which a patient’s infection spread and caused the need for amputation.
“Birth Trauma.” Medscape Reference. N.p., 26 Nov. 2012. Web. 20 Dec. 2012.
“Emergency Department Delays.” Department of Veterans Affairs. Office of Inspector General, 15 Aug. 2012. Web. 17 Dec. 2012.
Peters, Philip G., Jr. “Making Hospitals Accountable.” Cato Institute. University of Missouri-Columbia School of Law, July 2009. Web. 18 Dec. 2012.
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