A Brief Review of Malpractice

malpractice-e1300519c42ca063dfccc6f2d684645b4f632c50-s6-c10At our firm, we take calls about new medical malpractice cases every day. We are always dismayed when someone with a valid malpractice claim has waited too long and we are unable to pursue their case because the statute of limitations has or is about to run out. Or perhaps a client will be unable to get the compensation he or she expected because of  a misunderstanding about another of the many aspects or requirements of the law. There may be a technical reason that a case cannot even be filed, much less tried. To this end, it may be helpful, for the prospective client, to explain some of the the basics of medical malpractice lawsuits in Georgia.

 

A brief word about tort reform, as it affects nearly all aspects of medical malpractice: “tort” is the legal term for wrongdoing. It can apply to many areas of law, but for our purposes a tort is the instance of medical malpractice, consisting of a duty, a breach of the duty, and harm resulting from the breach of duty. It is defined as a breach of that degree of care and skill exercised by the medical profession generally under like circumstances and similar surrounding conditions. In 2005, the state of Georgia enacted so-called tort reform legislation, meaning that (among other things) the laws about medical malpractice are slightly different, and less favorable to plaintiffs, for those suffering injury or death before 2005 than they are now. For instance, it was recognized that emergency care in hospital emergency departments or obstetrical units inherently involves greater risk to patients, and that doctors are at a disadvantage because they are treating a patient whom they don’t know and with whose medical history they are not familiar, so that a greater burden of proof is necessary for claims of malpractice. In medical malpractice cases involving emergency medicine doctors and hospitals, a claimant must now prove gross negligence by “clear and convincing evidence,” which is “more rigorous than mere preponderance of evidence but less exacting than beyond a reasonable doubt.” Some of these changes have been challenged in court, with some being held as unconstitutional, some being upheld, and others having not yet been challenged- for instance, the more stringent standard for lawsuits against emergency medical doctors has not been reversed on appeal.

 

Many people are unaware of the statute of limitations, but it is extremely important. If the statute of limitations has passed, it doesn’t matter how legitimate and clear-cut your case may be; we cannot file a lawsuit. For medical malpractice, the statute of limitations generally is two years, with some important exceptions. The two years is counted from the date of injury or death, which can occur later that the wrongful act or omission that causes them. Even so, a case cannot be filed more than five years after the cause of act or omission (this rule is called the statute of repose). The exceptions are as follows: the statute of limitations cannot run out before a minor’s seventh birthday if a tort occurred within the first five years of life, and the statute of repose cannot run out before a minor’s tenth birthday. If the medical malpractice claim is based on a foreign object left in someone’s body, the statute of limitations will not run out until a year after the wrongful act or omission is discovered. And the statute of limitations can be extended, or “tolled,” due to a claimant’s incompetence based on mental retardation or mental illness. But for the most part, the thing to remember is that you only have two years from the time of the malpractice in which to act- and that’s two years to file the claim. You cannot wait two years to call an attorney and then expect that they can research your case and file the claim in just a few days. Your attorney will need time to write for and receive your medical records and send them to an expert to review, the expert needs to write an affidavit regarding the validity of your claim, and your attorney will need to write and file your complaint, all of which can be very time-consuming. A good rule of thumb is to give your attorney a minimum of six months before your statute of limitations runs. Always consult with a competent medical malpractice attorney to determine when your statute of limitations expires, because if you are mistaken or misinformed, and the statute has run, there is nothing that you or an attorney can do. Similarly, you may feel the statute of limitations has expired because two years have passed, but the case may still be possible because of an exception to the rule.

 

One requirement that has not changed with the tort reform statutes is the necessity for expert testimony. Many clients do not realize that expert testimony is an absolute requirement in medical malpractice cases. As mentioned above, after your attorney has received and reviewed your medical records, he will choose an expert in the specific area of medicine involved in your case. He will send your records to that expert to review, and the expert must write an affidavit including his or her expert opinion regarding the merit of your case. That expert’s reputation depends on rendering an honest and accurate assessment of your case. In order to keep frivolous lawsuits to a minimum, the court requires such an affidavit in order to file your case. One way in which this rule affects many prospective clients is that an expert may decide that the malpractice in question is, sadly and unfortunately, a recognized complication in a particular medical procedure. An example of this might be a promptly recognized laceration of bowel or bladder in a laparoscopic hysterectomy. Most folks would assume such an event would have to be medical malpractice, but because it is a recognized complication, and was promptly noticed and addressed, it is not malpractice. It can be a difficult issue, but one must realize that doctors are not machines, and human bodies vary. Almost all procedures have the potential for something to go wrong, and the patient sometimes agrees to the risk because the likelihood of the risk being realized is usually very small, and the benefit of the procedure may be very great. While it is tragic when someone is injured or killed, it is hard for a grieving or suffering person to realize that not all incidents are malpractice. This is why the thoughtful, researched opinion of a non-biased expert is a requirement.

 

Comparative or contributory negligence is an aspect of medical malpractice that is often overlooked by prospective clients. If the defendant is judged guilty, the jury will, at the same time as they decide that verdict, decide to what degree the plaintiff is also liable. This is much more common in, say, automobile accident cases, where a person could be judged to have partially caused the accident that injured him, but it does occasionally occur in medical malpractice cases. For instance, if a patient failed to disclose a pre-existing medical condition that affected the outcome of a surgery, but the surgeon should still have been able to successfully complete the surgery and failed to do so, the resulting issues would be mostly the fault of the surgeon, but also to some degree the fault of the patient. If the jury decides that the plaintiff is 15% responsible, then the award amount is reduced by 15%. If the plaintiff is more than 50% responsible, he or she cannot collect at all. And the legal action is barred altogether if the plaintiff could, by ordinary care, have avoided the consequences to him or herself of the other parties’ negligence: for example, if a patient refused to follow his or her doctor’s recommendations regarding limiting activities following spinal surgery, it could be part of the cause of the failure of a spinal fusion, and the case could be lost based upon contributory negligence.

 

The issue of vicarious liability can seem confusing, but is actually quite simple- and very important, when it comes to litigation. There is a difference between a hospital and a specific doctor being liable for malpractice. Basically, while a doctor is of course always liable for his or her own malpractice, the hospital in which the doctor works is not  necessarily also liable. Before 2005’s tort reform, the law was that the hospital was liable if the physician was either an actual employee or an “apparent agent,” meaning that the hospital “represents that the physician is its agent and therefore causes the patient justifiably to rely upon the care or skill of [the physician].” Understandably, this language was found to be too general, and since 2005, there have been more specific guidelines. If a hospital posts an appropriate notice or gets acknowledgement from the patient that some of the healthcare professionals are independent contractors, then the hospital is not liable “unless the professional has an actual agency or employment relationship with the hospital.” If the physician is lacking a contract or has an unclear relationship with the hospital, then the liability of the hospital depends on how the hospital behaves toward the doctor- i.e. if it treats the doctor as an employee, with the right to control “the time, manner or method in which the professional performs the services for which he is licensed,” it is liable.

 

Often, people want to know if there is a limit on damages they may receive in the state of Georgia. There is no limit on compensatory damages for medical malpractice. Caps on non-economic damages were enacted as part of the 2005 tort reform, but were held in 2010 to be unconstitutional. Punitive damages are limited to $250,000, except in cases of intentional harm or those involving drugs or alcohol; however, punitive damages in medical malpractice tort claims are only permitted “when it is proven by clear and convincing evidence that a defendant’s actions showed willful misconduct, malice, fraud, wantonness, oppression, or conscious indifference to consequences.”

 

Another financial concern relates to pre-judgment interest, which is when the plaintiff is entitled to the interest that would have accrued on the amount they are awarded. The only instance in which this is allowed is if, in an attempt to settle the case before trial, the defendant rejects a formal pre-trial demand (called a statutory offer of judgment, under O.C.G.A. section 9-11-68) by the plaintiff that is equal to or less than the judgment. Additionally, if a claimant makes a reasonable demand that is refused by the defendant, the case goes to trial, and the verdict is greater by twenty five percent than the amount the defendant already rejected, then the defendant must also pay costs of litigation and attorney’s fees on that amount to the plaintiff. This helps to prevent defendants from rejecting all offers in hope of getting a low verdict without any greater financial risk to themselves. To protect both sides equally, the reverse scenario also applies: an offer of judgment can be made to the plaintiff, who, if he or she rejects a reasonable offer by the defendant, can be liable for the attorney’s fees and costs of litigation of the defendant who made the offer, if the verdict is less by twenty five percent than the rejected offer.

 

Finally, if both parties agree, a malpractice case may be settled by arbitration. To proceed with arbitration, the parties must petition the Superior Court for the appointment of a referee. The claimant must still be represented by an attorney. Arbitration findings are final unless review is sought – and those findings can only be set aside if they were “procured by fraud, not supported by any evidence, or contrary to law.”

 

We hope that we have been able to clarify some of the issues involved in medical malpractice for you. If you or someone you love has been injured or died as a result of medical malpractice, or if you have any questions, please call us today. We are generally willing to review a potential medical malpractice case without charge for attorney’s fees and without obligation. We are ready and willing to use our decades of experience and wide network of expert witnesses to help you with your case.