Wednesday, December 29, 2010

Medical Malpractice For South Carolina

The vast majority of medical and health care providers including primarily hospitals, surgeons, doctors, pharmacists, physicians, nurses and emergency medical technicians ("EMTs")do offer excellent care that will help us to recover from a personal injury or medical condition. However, some providers fail to meet the requisite standard of care, and, under such circumstances, may be guilty of medical malpractice. Medical malpractice, commonly called "medmal" for short, generally occurs when a negligent, careless or reckless act, mistake, error, or omission by a doctor or other medical professional causes damage or harm to a patient



It has been estimated that almost 98,000 people die in hospitals in the United States each year, and that medication errors injure approximately 1.3 million people per year.

Medical malpractice errors or negligence typically occur in the diagnosis or treatment of a patient, and may include, but are not limited to:

>Failure to treat
>Wrong treatment
>Delay in diagnosis
>Failure to diagnose
>Failure to rule out causes or conditions
>Failure to test
>Failure to obtain informed consent
>Surgical injury
>Wrong prescription of drugs
>Patient abandonment
>Use of defective medical products

A patient's right to recover compensation for medical malpractice is generally governed by common law as well as statutes and regulations which have been promulgated to protect patients who have been subjected to medical malpractice or medical negligence. Medical malpractice suits are usually complex, time-consuming, expensive to litigate, dependent upon expert testimony, and vigorously defended by health care providers and their insurers.



The medical malpractice personal injury victim is commonly referenced as a "plaintiff" and the person or entity that caused the harm is commonly referenced as a "defendant." The South Carolina Supreme Court has set forth the elements of negligence with regard to a medical malpractice personal injury claim that a plaintiff has to prove as follows:

>A physician-patient relationship exists
>The generally recognized and accepted practices and procedures that would be followed by average, competent practitioners in the defendants' field of medicine under the same or similar circumstances >That the defendant departed from the recognized and generally accepted standards
>The defendant's departure from such generally recognized practices and procedures was the proximate cause of the plaintiff's alleged injuries and damages


Thus, the medical malpractice lawyer and his client must present evidence to meet each of the foregoing elements at trial.

A physician commits malpractice by not exercising that degree of skill and learning that is ordinarily possessed and exercised by members of the profession in good standing acting in the same or similar circumstances. Durham v. Vinson, 360 S.C. 639 (2004). A plaintiff and his attorney must proffer expert testimony to prove both the required standard of care and the defendant's failure to conform to that standard, unless the subject matter lies within the ambit of common knowledge so that no special learning is required to evaluate the conduct of the defendants.



A physician's failure to obtain a patient's "informed consent" with regard to a procedure or treatment is a form of medical malpractice. The term "informed consent" means that a physician must tell a patient all of the potential benefits, risks, and alternatives involved in any surgical procedure, diagnostic procedure, medical procedure, therapeutic procedure, or other course of treatment, and must obtain the patient's written consent to proceed. Under Informed consent law, a physician who performs a diagnostic, therapeutic, or surgical procedure has a duty to disclose to a patient of sound mind, in the absence of an emergency that warrants immediate medical treatment, (1) the diagnosis, (2) the general nature of the contemplated procedure, (3) the material risks involved in the procedure, (4) the probability of success associated with the procedure, (5) the prognosis if the procedure is not out, and (6) the existence of any alternatives to the procedure. Thus, the plaintiff and his lawyer must present evidence of the physician's breach of the foregoing elements of an informed consent claim in order to prevail at trial.



While most health care providers will not guarantee or warrant a particular outcome, there are times when they do, and a failure to successfully provide the outcome may give rise to a breach of contract or breach of warranty claim. These type cases usually involve plastic surgery wherein the patient is told that his or her post-surgery physical appearance will be the same as demonstrated on a computerized enhancement of the patient's photograph. Thus, much like a business breach of contract claim, the plaintiff and his lawyer must present evidence of the physician's breach of the stated warranty or guarantee by the preponderance of evidence in order to prevail at trial.



In a medical malpractice personal injury lawsuit, a victim seeks compensation for the injury or injuries he or she has suffered. Compensation can include past and future medical expenses, disability or deformity, loss of income, emotional and mental anguish, loss of a spouse's comfort and society, past and future pain and suffering, and an amount which would be necessary to make the person whole as respects a permanent personal injury. McNeil v. United States, 519 F.Supp. 283 (D.S.C. 1981). In cases where the defendant acted recklessly, maliciously or willfully, punitive damages may also be awarded. Punitive damages in medical malpractice lawsuits are intended to punish the responsible party and deter others from committing the same acts. Gamble v. Stevenson, 305 S.C. 104, 406 S.E.2d 350 (1991). If a wrongful death results from the medical malpractice, the decedent's beneficiaries are entitled to compensation.



For medical malpractice cases arising on or after July 1, 2005, which placed caps on non-economic damages a patient could recover from a liable defendant health care provider. S.C. Code § 15-32-220(a) limits the civil liability for non-economic damages of the health care provider to an amount not to exceed 0,000 for each claimant regardless of the number of separate causes of action on which the claim is based. S.C. Code § 15-32-220(a) provides an exception to the foregoing cap where the health care provider is proven to be grossly negligent, willful, wanton or reckless and that conduct was the proximate cause of the claimant's non-economic damages. S.C. Code 15-32-220(b) provides that the 0,000 cap is limited to each claimant. S.C. Code 15-32-220(c) allows a claimant to stack his claim, and provides that up to three health care providers may be subject to the 0,000 cap per claimant, for a total of ,050,000 per claimant.


The non-economic damage cap of 0,000 per medical entity or practice or person does not apply to economic damages and does not apply to punitive damages. Effective for medical malpractice cases arising on or after July 1, 2005, S.C. Code 15-32-230 further limits liability with regard to emergency obstetrical or emergency department situations. This section eliminates liability on behalf of any person providing emergency care or emergency obstetrical care to a person in immediate threat of death or an immediate threat of serious bodily injury while in an emergency room, obstetrical or surgical suite, unless the health care provider is proven to be grossly negligent. Other caps or limitations may be applicable to a medical malpractice case as well.



The plaintiff's attorney must timely bring a medical malpractice suit within the required timeframes. There are time limits on bringing a personal injury lawsuit in the state of South Carolina known as statutes of limitations. See S.C. Code 15-3-530(5); 15-3-535. While a medical malpractice personal injury suit is generally subject to a three year statute of limitations, there may be exceptions depending on the circumstances, such as a medical malpractice case where the negligent conduct may be covered by a concept known as the "discovery rule." See S.C. Code 15-3-545; Wilson v. Shannon, 299 S.C. 512, 386 S.E.2d 257 (Ct. App. 1989).


The statutes of limitations are different for negligence suits against a South Carolina state government agency pursuant to the South Carolina Tort Claims Act ("TCA") and the federal government pursuant to the Federal Tort Claims Act ("FTCA"). Under the TCA, a suit must generally be filed within two years, unless a verified claim is filed within a year of the injury, then the statute of limitations is three years. S.C. Code § 15-78-110. Under the FTCA, an administrative tort claim must generally be presented to the subject federal agency within two years. Once a timely administrative tort claim has been filed, there is no statute of limitations on bringing a suit unless the federal agency denies the claim, in which case a suit must be brought in federal court within six months after the denial. 28 U.S.C. 1346(b), 1402, 2401, 2675.



South Carolina Code 15-79-125 requires, on medical malpractice cases arising on or after July 1, 2005, that before a medical malpractice suit can be filed, a plaintiff has to simultaneously file both a notice of intent to file suit and an affidavit of an expert witness subject to the affidavit requirements established in 15-36-100 in a county in which venue would be proper for filing or initiating the action. Statutory mediation of any such medical malpractice case is required as well, and, there are time limits for filing suit should the attempted mediation fail. As noted above, an expert's testimony is necessary at trial to prove a breach of the standard of care and proximate cause of the injury, and the medical malpractice lawyer should retain a medical expert early on to assess the case and to be prepared to testify at trial.


Medical malpractice suits in South Carolina are difficult to pursue. Before undertaking a med-mal suit, the injured client would be well advised to consult with a lawyer with medical malpractice experience.


Tuesday, December 21, 2010

Medical Malpractice and Birth Injuries

What is more exciting than bringing a newborn into the world? After all, the future of mankind really does depend on our children and our children's children.

Unfortunately, labor as well as delivery can be a very complicated and unpredictable process. When an expectant mother goes through the birth process she trusts that her doctors and other medical professionals will maintain the highest of standards as they help to guide her through the childbirth process.

Doctors have to be able to make instantaneous decisions in order to protect the safety and health of the newborn and its mother. When a trained physician or other medical professional fails to observe any warning signs - or when they deviate from accepted medical standards of care - children are often unnecessarily harmed.

Birth injuries can range from those that will heal themselves and have no long term adverse affects to extremely serious injuries that can affect a child's brain.

If, during delivery, the baby lacks oxygen for one reason or another, or if there is any bleeding within the baby's brain or skull, then serious birth injuries are often the result.

And many of these birth injuries cause irreversible brain damage.

Oxygen shortages can be caused by a number of different things. The baby may be in an unusual birth position. Or the placenta may prematurely separate from the wall of the uterus. There could also be problems with circulation within the umbilical cord. In addition, labor may be either too short or too long.

Most of the medical malpractice claims that are based on injuries due to a shortage of oxygen allege that the medical professionals involved with the birthing process failed to recognize, anticipate, or react to any of these potentially dangerous scenarios.

Other factors that can lead to birth injuries include the failure to correctly anticipate the baby's size, the use of excessive force during the delivery, not ordering a C-section when necessary, and others.

Roughly nine and one half percent of all the medical malpractice lawsuits involve either the failure to properly diagnose problems either before or while they are happening, or the misdiagnosis of problems related to child birth.

Two types of cases that are predominate in birth injury malpractice lawsuits involve either Cerebral Palsy (CP) or Erb's Palsy (sometimes called Brachial Plexus palsy).

Because medical professionals have accepted the responsibility of taking good care of both the mother as well as the newborn child, if there has been a breach in their actions that caused injury to either they should be held accountable.

Tuesday, December 14, 2010

Doctor Malpractice Records

Who wants to employ a private doctor? I will advice you read through this before you go ahead. There are so many quack and fake doctors out there, not because they do not have sweet mouths or fine faces, not because they do not wear white robes like every other doctor, it is because their licenses have been seized because of malpractices. Now, if you do not know, a doctor that does not have a license is not safe to be with as you could be putting your life as well as your family's in danger. This is why doctor malpractice records is a must look up for everyone who intends to employ a private doctor.

Doctor malpractice records will give you first hand information about that doctor. As a matter of fact, you will know everything about the person such as where the person schooled, where the person first worked as a doctor, the malpractice the person was involved in and how many times such cases has been recorded against that name.

There are some times however that some doctors have been illegally dismissed but it is not in all cases. As a matter of fact, every doctor that has records in the doctor malpractice records probably have done something wrong and you may want to find out for yourself.

This is not an illegal venture into other people's personal life, it is your own life that is in danger and that of your family and that is why you need to take this serious. There are quack doctors who have nothing to lose. If you employ them, they will do a good job of making you weep and before you know it, they are on the move. As a matter of fact, they are criminals because most of them are wanted by the government. If you are not sure of the doctor you are dealing with, you had better get online right now to make that search.

Apart from the bodies that regulate doctoral behaviours, you can use public record lookup directories online to make this search.

All you need is the name of the doctor. If the person has ever been involved in any malpractice, you will get details in the record. Also, if the doctor is safe and still have an operational license, you will find out with this lookup too. It is better to be safe than sorry, keep your family and your life safe by conducting a doctor malpractice records search today.


Sunday, December 5, 2010

Malpractice Litigation - Understanding Your Options

Malpractice litigation refers to an act of neglect or failure by a professional. Most people thinking of malpractice automatically assume it refers to the medical field. However, malpractice cases can and do occur among dentist, lawyers and even accountants.

Clearing Up the Misunderstanding

When it comes to malpractice cases, there are a lot of misunderstandings about what qualifies for professional neglect. To be considered for malpractice litigation, an act by a professional must cause a patient to suffer harm of some kind. The quality of care or service given may fall outside of generally accepted standards by others in the same profession.

Malpractice also refers to a deliberate act by a professional to do harm, such as an accountant who steals money from his clients. Additionally it refers to a professional error. For example, a patient who receives the wrong medication by accident while staying in the hospital and suffers physical damage could file a suit for hospital malpractice.

A medical misdiagnosis can also fall into this category if it is something that other professionals think should have been seen or noticed.

Of course, doctors, lawyers and other professionals are human and will make errors. However, malpractice usually means the harm caused could have been avoided if the professional had acted reasonably under the circumstances.

Medical Malpractice

Medical malpractice is a leading cause of death in the United States. Common medical malpractice litigation cases include: medication overdoses or errors, botched surgery, birth injuries and cancer misdiagnosis. Failure to receive informed consent before performing a medical procedure and failure to act in a reasonable amount of time to treat a diagnosed condition are also common.

Hospitals are often involved in costly litigations because of malpractice. Private clinic doctors, specialists, dentists, nurses and other health care professionals can also find themselves named in a suit.

Legal Malpractice

In the legal field, individuals can sue their attorney if they failed to act competently. A lawsuit might be possible if it can be proven that a lawyer created a breach of fiduciary duty. This means that he or she failed to act in the best interests of their client or put their own best interests first. For instance, a lawyer who represents both a plaintiff and defendant in a divorce case has a conflict of interest. Malpractice can also occur when the lawyer commits a breach of contract. To win legal malpractice litigation, the client must prove that an attorney-client relationship existed and was violated.

Signing a Waiver

Before completing a surgery or performing other medical procedures at a hospital, having the patient sign a waiver is a standard practice. It is not however true that signing a waiver prevents you from making a claim for malpractice. If negligence on the part of the hospital or hospital staff resulted in injury, you still have the right to sue. For example, a patient who isn't informed that a surgery could leave them paralyzed could have a case.

Choosing an Attorney

When making a malpractice litigation claim, the use of highly specialized attorneys is important. Attorneys specializing in cases dealing with birth defects, cancer diagnosis or the specific complaint being made need to have the necessary experience. These attorneys are more up to date on current medical issues and have access to medical experts needed to testify and back up a claim.