The nature of the medical profession is such that the law expects health care providers to provide people with excellent medical care. It means that physicians must uphold whatever the standard of care is in their field. But this is often not the case.
Every so often, doctors fail to exercise due care when treating patients. This, in turn, leads to death or unnecessary medical complications. When this happens, it is said that medical malpractice or medical negligence has taken place.
The victim of such malpractice is entitled by law to get compensation for the harm caused by their physician. Our years practicing as medical malpractice lawyers showed us that not everyone knows when they have a valid medical malpractice claim. We will attempt to shed light on the preceding. If you have more questions or suffer from medical negligence, contact CAIL for legal advice.
What Qualifies as Medical Negligence?
Medical malpractice, like most personal injury actions under tort law, has its foundation in negligence. Negligence is the breach of an existing duty of care that causes an injury to the person to whom the care duty was owed. Thus, medical malpractice occurs when medical professionals breach the duty of care owed to their patients.
Under Virginia law, medical malpractice means “any tort action or breach of contract action for personal injuries or wrongful death, based on health care or professional services rendered, or which should have been rendered by a healthcare provider to a patient.”
The above definition shows that there must exist a health care worker/patient relationship for malpractice to exist. It means that if a physician with an unlicensed doctor treats you, you will not have a ca against them. This is because an unlicensed physician by the provisions of Virginia law does not qualify as a healthcare provider.
Thus, you must ensure that the treating physician is fully licensed as a health care provider in Virginia. Furthermore, a laboratory might not qualify as a health care provider, but a nurse and a nursing home do. A medical malpractice attorney at CAIL can help you determine who qualifies as a health care worker.
What Are the Common Types of Medical Malpractice?
Several situations can result in a medical malpractice lawsuit. A 2016 study by John Hopkins named doctors’ error as the third leading cause of death in the United States. These errors range from doctors leaving a surgical sponge in a patient’s body to prescribing the wrong medication.
Generally, most medical malpractice lawsuits come under three broad categories.
1. Failure to Diagnose: It simply means that a doctor failed to diagnose the patient’s illness. Here, the test is whether a competent doctor would have reached a diagnosis if presented with the same facts. If the answer is yes, then the treating physician will be liable for failing to diagnose.
2. Improper Treatment: If a physician treats a patient in a way no competent doctor would, it’s a valid ground for a malpractice claim. It’s also valid if the doctor administers the wrong treatment. An example is when a patient needs surgery, but the physician prescribes painkillers.
3. Failure to Warn Patients of Known Risks: Medical professionals owe it to their patients to inform them of all known risks involving a treatment plan. This is referred to as the “duty of informed consent.” A doctor who breaches this duty would be liable to pay damages to the affected patient.
In summary, medical malpractice covers the following:
- Surgical errors
- Medication errors
- Birth injuries
- Faulty medical equipment
- Anesthesia errors
- Emergency room errors
- Poor follow-up or aftercare
- Unnecessary surgery
- Disregarding patient history
- Failure to order proper testing, etc.
How Do You Know if You Have a Medical Malpractice Claim?
The fact that you believe that you suffered an internal injury from a medical error does not automatically qualify you to file a medical malpractice claim. Several elements must be present before you can have a valid claim. Below, we look at these elements.
Existence of a Doctor-Patient Relationship
You can’t sue a doctor for malpractice unless there is a doctor-patient relationship. It means that you must have hired the doctor; they agreed to be hired and commenced treatment. If you overhear a doctor advising another person and follow it, you can’t file a claim against them if things go wrong. This is because there is no fiduciary relationship between you two.
Existence of a Duty of Care
Once there is a fiduciary relationship, the doctor owes you a duty of care. The law recognizes certain standards of care that medical professionals must uphold under a given circumstance. A patient has the right to expect the physician to deliver medical treatment consistent with the standard. Failure to do so would amount to a breach of the duty of care and would establish the presence of negligence.
Existence of a Breached Duty and Injury
If a duty of care exists, then the medical professional must breach that duty for malpractice to exist. Next, the breach must result in an injury to your person. Most victims already have an injury or underlying medical condition, making it hard to prove causation.
Suppose a victim had cancer and died. If the family alleges negligence, it would be hard to show that the doctor’s negligent act caused the death and not cancer. This is why medical experts’ testimony is critical in medical malpractice cases. In summary, you must link the adverse treatment outcome to incompetency on the doctor’s part.
Existence of Damages
You cannot sue for malpractice if you did not suffer harm. The preceding is irrespective of the negligent conduct of the doctor. Thus, you must show the harm suffered and the impact it has on your quality of life.
To commence a negligence malpractice lawsuit, all these elements must be present. An experienced personal injury attorney will help you determine if you have a valid claim.
What Type of Compensation Can You Get for Medical Malpractice?
A medical malpractice claim comes under personal injury law. It means that you’re entitled to the same compensation a car accident victim with catastrophic injuries gets. Thus, you will get economic and non-economic damages.
The two cover:
- Medical bills
- Physical pain
- Mental anguish
- Lost work and lost earning capacity
Another type of damage you can get is punitive damages. The latter is common in medical malpractice cases, and courts award it. The rationale for this compensation is that the physician behaved in a way that shows blatant disregard for the standard of care.
Does the Law Require Virginia Doctors To Have Malpractice Insurance?
Virginia law does not mandate health care providers in the state to carry malpractice insurance. However, most doctors do avoid paying compensation out-of-pocket if they face a malpractice claim. Hence, a doctor’s malpractice insurance coverage is what pays for damages.
In a situation where the doctor does not have insurance or fails to offer you the maximum compensation, you have other legal options. You can file a negligent care action in a law court against the doctor. Find out more about how to take legal action against negligent doctors from our malpractice lawsuit lawyers.
What Is the Statute of Limitations for Medical Malpractice in Virginia?
The Virginia Statute of Limitations for medical malpractice stipulates the time frame to commence a lawsuit. Anyone who fails to bring their action within the time stipulated would have their action statute barred. In Virginia, the Statute of Limitations for Medical Negligence works in two ways. The first is for adults, and the second applies to children.
Statute of Limitations and Adult Claims
In Virginia, you must commence a personal injury lawsuit against a health care provider within two years. The time starts counting from the date of the negligence. If the case involves a foreign object like surgical sponges and needles, the time period is two years.
In contrast, you have a period of one year from the date the object is discovered or should have been discovered. You are at liberty to choose depending on whichever period is longer. A medical malpractice lawyer at CAIL can explain in detail.
Lastly, Virginia has a “continuing treatment doctrine.” The doctrine applies in limited circumstances and allows you to file an action after two years. The rule is quite complicated and not a sure bet. Find out more about the rule from a personal injury lawyer.
Statute of Limitations and Claims for a Minor
In Virginia, anyone below the age of 18 is a minor. Parents have five years from the date of negligence to commence a claim for “damage to property.” The child is the property in its instance. Here, the parents can only get actual damages or medical bills.
The law gets a bit confusing as it provides that if the child is less than 8-year-old at the time of the injury, they have until their 10th birthday to file the claim. If the child is older than 10-year-old, they have two years to file the action. The best way to find out what applies to your case is by contacting an attorney.
Statute of Limitations for Wrongful Death Claims
If the negligent act caused the death of your loved one, you have to file a wrongful death lawsuit. Virginia law provides that the deceased person’s personal representatives have two years after the death to commence the action.
How Can a CAIL Medical Malpractice Attorney Help You?
If you are the victim of a doctor’s negligent action or inaction, you deserve compensation. At CAIL, our lawyers will identify if you have a valid claim and commence the process to get you what you deserve. We work on a contingency basis, meaning we do not charge a fee until we win. Contact us today to find out more about our services.
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