How do you know if you, a family member, or friends have been the victim of medical negligence? What information is important? What are the issues? What are the types of damages that can be recovered? How long do you have to take legal action? These are all important questions and this article will attempt to provide you with useful answers. What Information is Important? Our analysis of your potential case begins with a thorough investigation and examination into your medical history. Any previous hospitalizations regardless of the reason may be important. We need to review your medical records from your family or primary care doctor for several years prior to the date of the treatment which you believe was negligent. We will need to review all records surrounding the treatment which you believe to have been improper. Finally, we need to understand all medications which have been ordered for you during the last several years. No doctor or hospital can refuse to provide you with a copy of your records – it’s the law! They may charge you a fee for copying the records but must provide the records within 15 days of your request. You do not have to inform the health care provider that you are requesting the records for review in a potential legal matter.
What Is Medical Negligence? In Virginia, and most other states, a doctor, nurse, dentist, or other medical professional is guilty of medical negligence if their care of a patient is below what a reasonably trained and experienced medical professional would have done for the patient under similar circumstances. This negligence may be the result of actions or inactions by the medical professional. For example, if a reasonable and competent Emergency Room doctor would order a chest x-ray and cardiac studies for a patient with complaints of chest pain and shortness of breath - then it would be negligent for that doctor to fail to order these tests to determine the patient’s cardiac status. Also, if a reasonable and prudent nurse would not give 100 mg of Demerol (narcotic pain medication) to a post-operative patient who had already received post-operative pain medication in the recovery room, then it would be negligent for the nurse to give the patient the additional dosage of pain medication.
What is Causation? Proving that the doctor, dentist, or nurse was negligent is not enough to prove your case. You must also be able to establish the negligence of the health care professional directly caused injury or death. The easiest way to understand this principle is to discuss a situation where causation is not proven. Let’s assume that you are cleaning the gutters from a ladder at your house and fall and injure your arm. A family member takes you to the doctor who orders x-rays, and after reviewing the films, tells you that you have just bruised your arm and sends you home. Upon returning home, and for the next 24 hours, the pain in your arm becomes unbearable. You head to the local hospital emergency room and additional x-rays are taken which clearly establish that you broke your arm as a result of the fall from the ladder. Yes, the first doctor was most likely negligent in failing to diagnose your broken arm but what damages were caused by the negligence? You would have had a cast placed on your arm 24 hours earlier but would still have endured a fair amount of pain. In other words, you cannot prove that the first doctor’s negligence caused you to suffer additional injury requiring additional medical treatment.
What Damages May be Recovered? Assuming you can establish that your doctor or nurse was negligent and that such negligence caused you further harm there are several different types of damages which the law entitles you to recover. First, you may recovery for additional medical costs/charges if the negligence required you to remain in the hospital for a longer period of time or receive medical care from other doctors to fix the medical problem. Second, you may recover any wages or income lost as a result of your inability to work – even if you will be unable to work for the remainder of your life. Third, you may recover for the added “pain and suffering” which results from your doctor’s negligence. Finally, you may recover damages for the loss or reduction in the enjoyment of everyday life if your injuries are permanent in nature and prevent you from doing the things you have always done (i.e. golf, hiking, etc.).
How Long Do I Have to Make a Claim? The general rule in Virginia is that you have two years from the date of the negligence to file a civil claim for damages. This time may be shorter or longer depending on the facts of your case. The rule is different for children who have suffered from acts of medical negligence and there are different restrictions if the defendant is a division or agency of the Commonwealth (i.e. UVa. Medical Center, etc.) All claims, regardless of their merit, are barred if filed after the expiration of these cutoffs or periods of limitation. The best practice is to consult with an attorney as soon as you have questions about the medial care provided to you, your family, or friends.
