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Shapiro & Appleton

Understanding Your Rights In A Med Mal Lawsuit

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We recently discussed the dangers associated with medical errors, specifically how a recent study discovered that diagnostic mistakes are the most common and most costly forms of medical problems. The following article contains some important background information for those who may have suffered harm from medical malpractice.

First things first, if you’ve been injured at the hands of a medical professional it’s important to understand some of the laws that could impact your case. One important federal regulation that works to protect patients is the Emergency Medical Treatment and Active Labor Act. The EMTALA is also known as the patient anti-dumping law and it protects both insured and uninsured patients, requiring that anyone who arrives at a hospital for an emergency evaluation must be given service and cannot be discharged in an unstable condition.

EMTALA works to protect patients not only in that it requires treatment, but also because it imposes strict liability on any hospital that fails to comply. The Act further stipulates that hospitals must perform the same screening procedures on all patients coming to the facility with similar symptoms, regardless of their ability to pay. This protects patients from being given inferior care to hurry along their discharge.

As we’ve mentioned before, those who have been injured in a hospital setting typically suffer problems from diagnostic errors. One shocking study found that a full 50 percent of all pulmonary embolisms are misdiagnosed as pneumonia or chronic lung disease. Hospitals have a “miss” rate of 30 percent for aortic aneurisms and 25 percent of all bacterial meningitis cases are initially missed by hospitals because of a lack of classic presentation.

In cases where patients have suffered from such diagnostic problems, it’s essential that their Virginia (VA) medical malpractice attorney understand what steps need to be taken to hold the healthcare provider liable. For one thing, it is critical that the plaintiff make the point that even atypical presentations of health issues are not unforeseeable.

One of the most common defenses in such medical malpractice cases is what’s known as “hindsight bias” which says that only now that the outcome is known is it easy to see the signs that the doctor should have recognized. To defuse this defense, it’s important that the plaintiff’s attorney use medical evidence showing that the patient’s symptoms presented red flags that a reasonable doctor should have noticed.

Another common tactic is to blame the plaintiff for his or her injuries, claiming that it was only because of the patient’s actions that they ever came to be in the hospital in the first place. Thankfully, many courts have held that patient contributory negligence does not apply in cases where the patient’s actions only provided the need for hospital care. For example, a patient who was performing a stunt and was then injured should not be blamed for his own actions. After all, doctors do not provide care based on the reason for admittance and there should be no variation in the quality of the care that is provided.

Another important point for anyone who has suffered harm at the hand of a physician is to be prepared for the defense to comb through your background, especially your social media presence. It’s become increasingly common for Facebook photos and Twitter comments to be introduced into evidence. Even seemingly harmless conversations can be twisted and taken out of context.

From the very first day that you consult an attorney it is critical to close all such accounts or, at the very least, make them private, restricting who can see your profile. Make sure to refrain from discussing the subject of the lawsuit with anyone other than your spouse because the more people that know the greater risk that unflattering information could make its way before a jury.

If you or a loved one has been the victim of a medical error or other healthcare complication, you should consult with an experienced Virginia (VA) medical malpractice lawyerOur firm enjoys a reputation of experience and success while representing victims in medical malpractice cases against doctors, hospitals, and other health care providers.

If you or a loved one has been injured at the hands of a medical professional, chances are you are confused about your options and may not know where to turn for help. To learn more about medical malpractice cases, check out this online library of Virginia (VA) attorneys’ answers to frequently asked questions regarding medical malpractice lawsuits.

Here's a video of two of our attorney's, Mark F. and Rick Shapiro, discussing why many medical malpractice cases fail to settle:

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