Are doctors the only people against whom I can file medical malpractice?
Medical negligence can include a variety of actions that result in substandard care by a healthcare professional. Although filing a medical malpractice claim against a healthcare professional will require you to prove that their actions were negligent or substandard, you will also have to prove other elements of your case.
Specifically, did a duty of care exist between you and the healthcare professional; did they breach their duty through their negligent or intentional actions; and did this breach result in your loss, injury or death?
Who can I file a medical malpractice claim against?
Due to the complexity of medical malpractice claims, it’s important to consult with a medical malpractice attorney who specializes in the type of case that you are considering filing. If your attorney is convinced that you have a valid injury case, they will help you determine which parties might be liable for your injuries.
For example, if you or your baby were injured during birth, the negligence may not be limited to the doctor performing the birth. Errors can occur at any part in the birthing process, and other parties such as the healthcare facility, the nurse, anesthesiologists, the hospital or pharmaceutical company might be liable.
For other injuries caused by medical technicians, support staff and nurses, you may also be able to hold the hospital liable—assuming that the offending party was a hospital employee and they were performing their normal job duties. This can include injuries from routine medical mistakes such as giving the patient the wrong prescription or not providing adequate support when a patient gets out of their bed.
Holding a hospital liable for their negligence, and for the negligence of the employees who work for them, is very common and can lead to the highest payment to the injured party. Legally filing a suit against the hospital is allowed under the corporate negligence doctrine, which encompasses the notion that a hospital may be liable if they failed to properly supervise employees, hired incompetent staff, or did not investigate the educational or professional background of nurses, doctors or other professional healthcare staff.
Another failure that may open up a hospital to a medical malpractice case is if they failed to follow established safety protocols. For instance, hospitals are required to staff a certain number of doctors or nurses to ensure that patients receive quality care. Failing to follow pre-established safety protocols is likely to increase the risk of injury to patients and can be a breach of duty, with your attorney arguing that this action created care that was substandard and not what other similarly sized hospitals would do.
Finally, a hospital’s disorganization—including discharging patients prematurely, not performing the necessary tests, or losing medical records—can also be considered a breach of duty. If this breach of duty leads to injury, you may have the right to file a medical malpractice claim against the hospital.
When is the hospital not liable for injuries caused by doctors?
Hospitals have employed a variety of legal tactics to avoid paying big settlements for the negligent actions of workers who work in their facilities. In fact, hospitals will often hire a doctor as an “independent contractor.” Under this arrangement, it is generally the doctor rather the hospital who is legally negligent if the doctor’s negligent actions injure a patient.
Exceptions may exist, however, if the hospital did not make it clear that the doctor was not an employee or if the negligence occurred in the emergency room, where the injured party did not have information regarding the employment of the doctor.
While hiring doctors as contractors could mean that you cannot be compensated from the hospital for the negligent actions of the doctor, in many cases, you might be able to hold the hospital liable for their own negligence (i.e. hiring an incompetent doctor).
In other instances, the doctor may also be the only party to a lawsuit if the malpractice was performed by an employee while under the direct supervision of the doctor who was both present at the time that the negligence occurred, and the doctor had direct supervision over the employee and arguably could have prevented the negligence. For example: a nurse in a surgical room made a mistake while a surgeon watched her and the surgeon had supervisory responsibilities and the ability to stop her.
How do I file a medical malpractice claim?
As mentioned above, medical malpractice claims are difficult to win. Talking to a lawyer is the first step. Next, your attorney will generally have to hire medical experts to testify and gather medical evidence for your case through the process of discovery. Then, most likely, your lawyer will attempt to negotiate a settlement. Some medical malpractice cases will be argued in court. Regardless of whether your case is settled or argued in court, however, the process can take up to two years or more for you to receive your compensation.