Medical Malpractice: What is it?
What is "Medical Malpractice"? Many think the term "malpractice" applies only to medical doctors, yet there are other health care providers, such as chiropractors, therapists, nurses, psychologists, and dentists who may also be sued for medical malpractice under Ohio law. There are three elements that must be met in a malpractice, or negligence, lawsuit.
How can I determine if I might have a valid Medical Malpractice case?
A. Duty Toward the Patient: The first element in any medical malpractice lawsuit is that of a duty owed to the patient. If there is no legal duty to act, a medical professional can stand by, doing nothing, while a person suffers, and still not be negligent. Thus, the first question to address in a medical malpractice lawsuit is whether the medical professional owed any duty to the plaintiff.
Often this question is easily answered. When a patient goes to a doctor with a problem and the doctor agrees to treat the patient, the doctor has assumed a duty to treat the patient with that degree of skill, care, and diligence possessed or exercised by competent and careful physicians. By agreeing to diagnose or treat a patient, the doctor has indicated that he or she has the appropriate training and skill to adequately care for the patient and has assumed a duty to use that skill and training to treat the patient.
Historically, in the American system of jurisprudence, a person had no affirmative duty to help others, absent some special relationship between the two parties. A doctor dining out at a restaurant had no general duty to help someone experiencing a heart attack. The doctor could continue his or her meal and do nothing to help the heart attack victim because the law imposed no duty to act in this circumstance. Despite the apparent callousness of this rule, it remains the law in most states including Ohio.
However, once a physician voluntarily assists someone, he or she becomes liable under this law for any injury that results from the failure to act as a reasonably prudent physician would have acted under the same or similar circumstances. Thus, if a doctor at a restaurant rushes to help the victim of a heart attack, the law imposes a duty to adhere to professional standards of care in diagnosis and treatment of this person who has now become his patient.
An area of medical malpractice law receiving increased attention in the courts deals with the circumstances under which a doctor owes a duty to persons other than the patient. In some situations, the doctor may owe a duty to persons other than his or her patient. For example, a pedestrian injured when an automobile driver suffers an epileptic seizure while driving might charge that the driver’s doctor violated a duty to the general public by failing to properly diagnose the driver’s epileptic condition. The victim of a domestic assault might charge that the perpetrator’s psychiatrist had a duty to warn the victim of the patient’s unstable condition.

B. ACCEPTED STANDARDS OF PRACTICE. Medical malpractice results if the doctor injures his or her patient by using skill or rendering care that is less than that which could be expected from a reasonably competent doctor in diagnosing or treating the same condition.
In most cases, a plaintiff must present expert testimony on what the standard of care is and the manner in which the defendant departed from that standard. Medical malpractice lawsuits often become battles in which each side has expert witnesses declaring different acceptable medical standards. Therefore, it is imperative that a lawyer for a person bringing a malpractice case state the case in clear, understandable terms so that any juror can comprehend what the doctor did wrong.
C. Causation: The third requirement to succeed in a medical malpractice lawsuit is causation. Causation is frequently divided into two separate inquiries—whether the professional’s actions in fact caused the harm to the patient, and whether the professional’s actions were the proximate cause of the patient’s harm.
The "cause in fact" inquiry is usually answered with a "but for" test. A doctor’s action caused the patient’s harm if, but for that action, the patient would not have been harmed. The proximate cause inquiry asks whether, if the action did in fact cause the harm, the professional ought to be held responsible for his or her actions. In some rare instances, the physician’s actions are so removed from the final harm to the patient that the law cuts off liability for those actions by saying that the tortious conduct was not proximate to the harm. In other words, there is not a close enough connection between the action and the harm to say there is proximate causation.
Sometimes this causation inquiry is answered rather easily—such as when a doctor gives a patient the wrong drug and that drug causes permanent injury. Thorny issues arise when the harm to the patient had more than one cause. For example, two doctors, acting independently, might both prescribe the same wrong medication. If the "but for" analysis is applied to each doctor’s actions in isolation, it cannot be said that his or her actions were the cause of harm to the patient because the patient would have been harmed through the negligence of the other doctor. Different jurisdictions have created their own rules to deal with "multiple cause" injuries. The Ohio Legislature has recently enacted laws which impact this issue in medical malpractice cases. [page]
D. Damage to the Patient: A person who is the victim of medical malpractice can sue for the injuries and all direct consequences of those injuries. "Direct consequences" include any mental or physical pain and suffering caused by the careless doctor and any lost wages, medical expenses or other economic damages resulting from the injury.
Want to know more? Contact Plymale & Associates with your questions.
Breach of Confidentiality
A physician or hospital has both an ethical and legal duty to preserve in confidence any communication from his patient unless the patient instructs otherwise. Generally, a doctor violates a patient’s right to confidentiality by releasing information about his or her medical condition to unauthorized persons or organizations without first having obtained the written consent of the patient.
In order to obtain more than nominal damages in a case of a breach of confidentiality, a person must show that the doctor’s careless disclosure caused him or her great harm. For example, a patient might be able to collect a great deal of money if a doctor told the patient’s rich aunt that the patient had blamed the aunt for his psychological problems and the aunt subsequently wrote the patient out of her will. This injury is far greater than if the doctor was overheard at a party asking his or her patient about a wart problem.
Affirmative Defenses
A physician asserting an affirmative defense admits, for the purpose of argument, that the plaintiff can establish the existence of all four elements of a medical malpractice action, but the defendant argues that the existence of some other factor excuses the medical professional’s actions. The physician must prove his or her affirmative defense.

Consent: Consent is the most frequently asserted affirmative defense in medical malpractice lawsuits founded on the failure of a medical procedure to obtain the expected result. Consent means that the health care professional informed the plaintiff of all risks associated with a particular procedure, the plaintiff consented, and the professional did not go beyond the procedures to which the plaintiff agreed. Doctors frequently argue that they cannot guarantee health to their patients, only to treat them in accordance with the standard of care. We have found that doctors frequently minimize risks before a surgery, for example, and then change their story when the surgery does not come out as the doctor said it would.
Doctors and hospitals have tried to protect themselves from medical malpractice lawsuits by having patients sign consent forms before they receive treatment. These consent forms typically include warnings that medicine is an imperfect art and not an exact science, and that patients must assume all the risks of any procedures. By signing a consent form, a person does not give up all his or her rights to sue the medical professional if things go wrong. First, such an agreement may not be valid if the doctor does not fully inform the patient of the risks associated with the particular procedure. In other words, only a complete and informed consent is valid. However, even a valid consent form is no protection for a doctor who either acted beyond the scope of the consent or who failed to perform the procedure according to accepted medical standards. A patient also may properly sue a medical professional if a person other than the one named on the consent form performs the procedure.

Q: Can I get my medical records?
A: Yes. Do not take "no" for an answer from anyone. You are entitled to copies of each and every piece of medical information which concerns you anywhere in the U.S. You have to ask for them, making it clear that you know you can get them, and you often need to insist and accept no excuses.
The request for medical records is made at your doctor’s office for his office notes, reports, and test results, and at the medical records department of your hospital for all events happening while you were a patient therein. They may properly request that you sign a release of information form which they will provide for you. There may be a copying charge. If you want to present your records for a complete malpractice evaluation, or if the records are being collected in preparation for litigation, be sure to specify what you want. Do not accept summaries that the health care providers choose to give you.
Specifically request, "Each and every page of medical record information available including, but not limited to: Office notes, discharge summaries, history, physical exam, progress notes, operating reports, operating room records, anesthesia sheets, consultation requests and reports, all laboratory and imaging results, memos, letters, insurance forms, bills, and all other written records concerning me in your possession."
Q. Can I get the records of my deceased spouse, child or parent?
A. Medical records are confidential. They may properly be released only to the patient, or to someone authorized in writing by the patient, or authorized by law to act for the patient. [page]
As a parent of a minor, your are authorized by law to obtain your child’s medical records. However, once that child is deceased, that legal authority ends. A medical provider should not release to anyone (including children parents or spouse) the medical records of a deceased person without being provided proof that the person requesting them has been appointed as executor or administrator of the deceased persons’s estate.
Q: What if my request for records is refused
A: There may be a 3-5 day delay; but no more. If you request records mentioned herein in writing and are refused, try to get such a refusal in writing. However, initially indicate that you plan to report the refusal to provide you with copies to the State Medical Board, and to the Secretary of State. The records will be produced
Q: Can I make a claim against a doctor even if I signed a consent form?
A: Hospitals typically require patients to sign forms giving their consent to medical treatment. Even if you signed a consent form, you should still be able to make a claim against a doctor. For example, if your doctor did not follow proper procedures when performing an operation and you were harmed as a result, you would be able to make a malpractice claim even if you had signed a consent form. You consented to the risks naturally attendant to the procedure. You did not consent to substandard medical care.
Q: How much time do I have to file a lawsuit?
A: In Ohio, the statute of limitations is one year from when the patient (or sometimes a particular family member or guardian) either knows, or should know with the exercise of reasonable diligence, that an injury has occurred and there is a reasonable possibility that it was caused by medical malpractice.
If the patient in question is under the age of 18 at the time of the medical treatment, then the one year statute of limitations does not start running until he or she reaches 18.
Q: Should I hire an attorney?
A: You will need a lawyer because medical malpractice cases are very complex and difficult to pursue. It is rare for a healthcare provider to settle a malpractice claim early. You should expect the doctor or hospital to hire a lawyer who specializes in defending medical malpractice claims and you should anticipate the defense will normally pull out all stops to fight your claim. Many states have complicated legal procedures that must be followed even before you file your malpractice suit. Miss one procedural step along the way and your suit could be forfeited.
Q. How long will my malpractice case take to be resolved?
A. The average time from beginning to end varies from city to city and state to state, usually ranging from one to six years. In most places the average is probably three years. A rare case can be settled in a few weeks or months. Ask your lawyer what the average length of time is for a malpractice case in your area. No lawyer can promise you how long your specific case will take because he cannot predict how the defendants will respond or whether there will be one or more appeals.

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