Medical malpractice is a common occurrence in the United States. Every year, more than 400,000 patients die from medical negligence in the U.S. Per capita, the U.S. Government’s National Practitioner Data Bank estimates that Louisiana sees 3.4 medical malpractice reports per 1,000 people, which is the third-highest rate in the U.S. and almost double the national average of 1.9 reports.
However, being the victim of medical malpractice can put patients in a complex situation. It is not always easy to determine whether negligence occurred, and who is at fault. As a result, many cases of malpractice go unreported, with the victims never finding the justice they need and deserve.
The first step to remedying that situation is understanding the nuances of the concept in Louisiana. That includes not just knowing the definition of medical malpractice, but also how to know if you have a claim, and what you can do next–including knowing how to find the right New Orleans medical malpractice lawyers to find justice.
What is Medical Malpractice?
At its core, the legal concept of medical malpractice describes a situation in which a medical professional fails to perform their duty in a way that causes harm to their patient. That harm could include worsening an existing injury or condition, inflicting a new injury, or even death.
While medical malpractice is most often associated with doctors, any medical professional can be liable for medical negligence including nurses, therapists, technicians, and the facilities in which they operate. Malpractice can take the form of active harm, but also failure to inform the patient of any risks or next steps needed after a medical procedure, a faulty diagnosis, performing an unauthorized treatment, providing the wrong prescription or dosage, and more.
Common Examples of Medical Malpractice
While medical malpractice can take on many forms and nuances, most cases break down into one of four categories that may entitle the harmed party to compensation. Before engaging a medical malpractice lawyer, New Orleans residents should consider whether their experience falls into one or more of these categories.
If a medical professional did not provide or prescribe the correct medication, they are engaging in medication error. This general category could take on a few specific forms:
- A mistake happened when a pharmacist or doctor prescribed a medicine, leading to harm caused by taking the wrong or wrong amount of medicine.
- A nurse or hospital employee makes a mistake when administering the medicine, leading to injuries or harm caused to the patient.
- The hospital or medical facility equipment may be defective or calibrated to administer incorrect dosages of medicine.
Other cases are nuances of these scenarios, like a nurse mixing up patients when administering medications. Medication errors can cause serious harm, depending on the circumstances.
Misdiagnosis or Failure to Test
Medical professionals also can be guilty of medical negligence by providing the wrong diagnosis, leading to a treatment (or lack of treatment) that could be dangerous to the patient. For example, when a doctor fails to recognize a condition like cancer in an early stage, it may advance to future and more harmful stages. Similarly, a misdiagnosis may lead to prescribing the wrong medicine.
These scenarios cross the line to medical malpractice when the misdiagnosis occurs because the medical professionals did not perform enough due diligence. If common symptoms should lead to a test that the doctor neglects to take, a medical malpractice suit gains merit.
That, in turn, leads to one important note. Plaintiffs suing for medical malpractice based on misdiagnosis must prove that a competent doctor finding similar symptoms would have reacted differently and come to a different (more correct) diagnosis. This includes expert testimony from other doctors, who also need to be able to explain the harmful effects of the error.
Neglect and Unclean Environment
As another form of medical malpractice, neglect describes a scenario in which the patient is ignored or not taken care of in the proper, recommended medical manner. This neglect can be harmful to the patient when it leads to a lack of care that worsens the condition or introduces new health problems.
For example, the patient may be placed in an unclean environment that could lead to unsanitary conditions. This may result in the patient developing infections, worsening their health significantly. In this case, the patient can sue for medical malpractice based on neglect.
Malpractice may be most obvious when it occurs during surgical operations. Operating on the wrong part of the body or cutting a nerve or organ by mistake can have negative consequences that last a lifetime.
Surgical errors can lead to clear medical malpractice suits when they involve “never events”, which are mistakes that the medical community acknowledges should never happen. In these cases, negligence tends to be obvious, like leaving a surgical instrument in the patient’s body or operating on the wrong patient.
Other surgical errors that may still justify legal actions include injuries during the surgery, infections, and post-surgery complications that can be traced back to the event.
How to Determine If You Have a Medical Malpractice Claim
Most people are not medical experts, which is why it is difficult to know if a health condition was the result of a medical professional’s negligence. That is why working with a personal injury attorney who specializes in medical malpractice is a crucial early step to assessing whether you have a case.
Beyond working with a medical malpractice lawyer in New Orleans, you can also monitor a few early warning signs that may point to negligence by a medical professional:
- A prescribed treatment or medication is not improving your condition.
- The medical professional who diagnosed you and prescribed the treatment does not follow up.
- The treatment plan does not seem to match your condition.
- The facility in which you are diagnosed and/or treated is understaffed or seems unclean.
- The medical professional performed a procedure you did not agree to.
- A medical professional involved with your diagnosis or treatment admits to wrongdoing.
Keep in mind, though, that none of these early signs alone are clear proof of wrongdoing. They are warning signals that increase the urgency of speaking with a New Orleans medical malpractice lawyer to see if you may be entitled to compensation.
What You Must Prove in a Medical Malpractice Claim
Medical malpractice can be difficult to prove because not every undesirable medical outcome is a result of wrongdoing on the part of a medical professional. Furthermore, even when negligence or wrongdoing was a factor, professionals will rarely admit to any fault.
As a result, New Orleans medical malpractice lawyers will need to prove 4 basic elements when representing a plaintiff in a legal case:
- Duty of Care. Every doctor owes their patients a duty of care, which is the requirement to do everything they can to diagnose a condition and work to improve it. The plaintiff will need to prove that the doctor failed in doing what they can to help the patient get better.
- Standard of Care. This connects the duty of care with the standards of the medical profession. The plaintiff will need to prove that the treatment of the patient failed to meet the typical standard with which patients like them are treated in a typical scenario.
- Causation. As its name suggests, this element focuses on how directly the negligence was related to the conditions the patient now suffers. The attorney will also look to show that the medical professional in question could have taken more or better steps to prevent further harm.
- Damages. Finally, the court will ask the plaintiff and their legal representation to show what damages the medical negligence have caused. The more specific the damages that can be shown and proven, the stronger the case will be.
These four components are typical in any personal injury and negligence-related suit, but they are especially complex for medical malpractice. It is what makes working with a strong and experienced medical malpractice lawyer such an important step in the process.
Components of a Medical Malpractice Claim in Louisiana
In looking to argue a medical malpractice claim, three basic components are important to keep in mind for Louisiana courts:
1. The Medical Review Panel
Louisiana Laws Revised Statutes § 40:1299.47 requires all plaintiffs and legal representation to submit a claim to this panel, consisting of three licensed healthcare providers and an attorney, and wait for an opinion before filing a lawsuit. The fee is $100 per defendant, to be paid within 45 days after receiving confirmation of the request receipt. You are free to file a lawsuit if the panel reaches the opinion that it is reasonable to do so or has not reached an opinion after a year of contemplating the request.
2. The Review Panel’s Outcome and Opinion
Once the medical review panel reviews all evidence, including reports from medical experts and any transcripts of witness depositions, it will offer a report. In this report, the panel will opine on whether the defendant meets or violates the standard of care as defined above, as well as any other findings that might be relevant for a court case. The panelists could then become witnesses during a medical malpractice trial, although the final judicial decision will still be made by the jury.
3. The Louisiana Medical Malpractice Damage Cap
Louisiana law states that damages in medical malpractice suits cannot lead to more than $500,000 in damages to the plaintiff. This is a total cap, meaning it is limited to all potential damages (including pain and suffering), with one exception. Future medical costs are not subject to this cap and could add to the overall damages awarded to a patient if they are directly connected to the malpractice.
What to Do If You Believe You Are a Victim of Medical Malpractice
If you believe you have been a victim of medical malpractice, the first thing you should do is consult with an experienced medical malpractice attorney in New Orleans. An attorney can evaluate the circumstances involved to determine if you are entitled to file a medical malpractice claim, and assist you in recovering the compensation that you and your family need and deserve.
You should also gather all of your medical records. The more information you can gather the better.
Some of the records you should gather include:
- Discharge reports – from when you were released from the hospital.
- Surgical records – if you underwent a surgical procedure.
- Your initial diagnosis – as well as any subsequent diagnosis as your symptoms or condition changed.
- Prescriptions – any prescriptions for medication you were given when you were leaving the hospital.
- Your medical history – and any family medical history that the doctors may have used to make decisions when you were under their care.
- Test results – from any diagnostic tests the doctor performed when diagnosing or treating your illness or condition, including but not limited to blood work, urinalysis, X-rays, CT scans and MRIs.
Medical records are key to any successful medical malpractice claim. Your medical malpractice lawyer can assist you with gathering your medical records and other evidence needed to build a strong medical malpractice claim on your behalf.
Contact The New Orleans Medical Malpractice Lawyers at Dudley DeBosier
The New Orleans medical malpractice lawyers at Dudley DeBosier are confident and skilled professionals who are passionate about helping victims of medical malpractice get their lives back on track and recover the compensation they and their families deserve for the pain, suffering, and financial losses they have suffered.
When working with Dudley DeBosier, every prospective plaintiff receives a free case assessment. When you work with our team, we will value you as a person and will do everything in our power to achieve the best results possible for your claim. Contact us for your medical malpractice free case assessment today.
Reviewed for accuracy by the injury lawyers at the Dudley DeBosier New Orleans office.