MEDICAL MALPRACTICE UTAH LAWYERS

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Medical Malpractice: A Threat to Us All

A recent study by John Hopkins found that over 250,000 die yearly because of medical mistakes. This makes medical malpractice the third-leading cause of death in the United States! And there are some that say the real number is closer to an astonishing 440,000 per year. Only heart disease and cancer rank higher as the leading causes of death.

The reason for the discrepancy is that health care providers, medical examiners and funeral directors and coroners don’t always put the cause of death in their notes or on death certificates. And it is the death certificate that the Centers for Disease Control rely on when issuing their statistical reports. Obviously, death following medical malpractice is the ultimate injury. However, multiples of these numbers end up with permanent injury caused by medical malpractice.

Medical Negligence is Falling Below the “Standard of Care”

Medical malpractice or negligence happens when a health care provider such as a doctor, nurse, hospital, dentist, etc., falls below the “standard of care” in providing medical care to you. Utah’s jury instruction CV301B on medical malpractice states:

To establish that (the health care provider) was at fault, the plaintiff has the burden of proving two things, a breach of the standard of care, and that the breach was a cause of the plaintiff’s harm.

In the end, Utah law says it’s up to a jury to decide what that standard will be:

A health care provider is required to use that degree of learning, care, and skill used in the same situation by reasonably prudent providers/doctors in good standing practicing in the same specialty or field. This is known as the “standard of care.” The failure to follow the standard of care is a form of fault known as either “medical negligence” or “medical malpractice.”

The standard of care is established through expert witnesses and other evidence. . . . It is your duty to decide, based on the evidence, what the standard of care is. The expert witnesses may disagree as to what the standard of care is and what it requires. If so, it will be your responsibility to determine the credibility of the experts and to resolve the dispute.

MUJI 2^nd, CV301C

A Complicated, Tricky Maze to Navigate

In Utah, the medical community has lobbied to make bringing a medical malpractice claim as difficult as possible. The highly-influential medical community has been successful in putting into law a series of requirements – or hoops – that you have to successfully jump through before you can bring your case to court. These complicated rules are part of the Utah Healthcare Malpractice Act, found at Utah Code 78B-3-401. See https://dopl.utah.gov/laws/78B-3part4.pdf

These laws lay out the requirements you need to follow in bringing an action against a medical provider in Utah. These laws are neither clear nor straight forward. If you are considering bringing a claim, I would urge you to speak with an experienced medical malpractice attorney as soon as you can to see what requirements might apply to your case.

Watch Out For the Statute of Limitations!

n Utah, you generally only have two years to bring a claim against a medical provider from the date you knew or should have known there was malpractice. The time period could also be as long as four years if you were delayed in knowing that the doctor or medical provider did something wrong.

I would strongly urge you to bring your claim as earlier as possible as there may be other potentially-liable health care providers you won’t find out about until you file suit. And if your case involves a claim against a government entity, such as the University of Utah Medical Center, your statute could be as short as one year! And if the claim involves a case against the federal government, it may also be subject to the Federal Torts Claim Act (FTCA), which has its own statute of limitations.

Types of Medical Malpractice to Look Out For

Surgical Error Cases

No one gets excited about having surgery and many will want to try conservative measures before resorting to getting cut on as we have all heard stories about bad things happening during and following surgery. But surgical mistakes happen that are not mere “complications” of the procedure. This is medical malpractice. When mistakes happen, it can severely disrupt someone’s life and even cause death.

Unnecessary and Unneeded Surgery

We have all heard of cases where a person received a surgery they really didn’t need. But operating on a human body is not like working on a car where the mechanic might suggest replacing this or that to see if that fixes the problem. Medical diagnosis, while not always perfect, needs to be as precise and careful as possible so that the patient’s exposure to surgery is as minimally-invasive as possible. That’s why when a doctor knowingly or recklessly operates on someone when he or she doesn’t need to, they need to be responsible for the outcome of that unneeded surgery along with the cost that went along with it. Surgery is frequently a traumatic process and there will always be a certain amount of emotional trauma that will remain after someone gets an unneeded surgery. This too needs to be compensated for.

Wrong Diagnosis Cases

This happens more frequently than you might think. This can happen because the doctor is so busy, they are fatigued, or they are just not being careful and get lazy. At any rate, it is the patient that pays the price when this happens. With an incorrect diagnosis, the patient is often simply being sent down the wrong path for recovery.

For example, a patient goes into the emergency room for what they think is a heart attack just to be told that they have bad heartburn and should just take some Tums. Meanwhile, a serious heart condition goes undiagnosed, potentially leading to a severe outcome for them and their family. Thus, diagnosis of a patient is critical in helping the patient go down the right path for them. A doctor or health care provider who gets this wrong could therefore be responsible for the harm that results from the misdiagnosis.

If you feel like you have been misdiagnosed, make sure you speak with a Utah medical malpractice attorney to see what your rights and options are.

Diagnostic Delay

A diagnostic delay can happen where there is a delay in the diagnosis, and subsequently, in the treatment of the patient. Think of situations where patients might languish for hours in a crowded emergency room with a serious, life-threatening condition that continues to get worse as time goes on. When the condition worsens, leading to increased illness, health effects or death, the medical provider can be responsible for not having systems that efficiently diagnoses the patient’s condition to get them into treatment or referred to someone else who can provide that treatment.

Staffing Shortages

One of the reasons why diagnosis is delayed is because of significant shortages in staffing. Staff shortages can affect patient treatment on a number of levels, including diagnosis, treatment, accuracy, prescriptions, etc. When health care providers attempt to treat more patients than they can handle, it puts the patient’s health at risk because the odds the provider will make a medical mistake go up exponentially. No one likes to be treated like they are cattle and health care providers need to respect the patient’s right to be treated in a careful, professional and respectful way.

Failure to Supervise

There is a temptation to allow less-trained nurses and assistants take the role the doctor should take in busy offices. While these assistants definitely have their place in modern medicine, they still need to be adequately supervised to make sure that diagnosis is accurate and treatment is appropriate. When this doesn’t happen, when reporting to the main doctor becomes discretionary, bad things can happen.

The reality is that relatively few people invest in their profession like medical doctors do. The amount of education required is enormous, as is the amount of time required to intern to get the experience needed to be competent in their field. Patients go to medical clinics run by medical doctors because they expect that there will be one that will at least oversee the care that the assistants help with. When this doesn’t happen, the patient’s health and safety is put in jeopardy and you are left with a situation where a nurse or assistant is practicing medicine without a license. Clinics that don’t have procedures to make sure they properly oversee their staff’s treatment of patients are at risk of having a medical malpractice action brought against them when something needlessly goes wrong with one of their patients.

Medication Errors

Another area where medical mistakes happen is in the area of medication. Some estimate that up to half of all hospitalizations will have a medication error. Obviously, bad things can happen if patients take medication they are not supposed to take. Some even die. Medication errors can happen when a drug the patient is allergic to is prescribed to them. They can happen when a patient is told to take multiples of what they should be taking. It can happen when the pharmacist puts the wrong drug in the bottle or when the prescription is tainted with other drugs. A severe example could be when a patient is wrongly given a blood thinner after a surgery and bleeds to death. Medication errors can even happen when there is an IV involved and the medication stops flowing or is the wrong type or is not delivered promptly. When medication errors happen, patients often pay the price.

What Can a Lawyer Help You With Following Medical Malpractice?

If you have a case and you have been harmed because of medical malpractice, you could be entitled to economic and non-economic damages, and possibly even punitive damages, under Utah law. Specifically, these damages would break down as follows:

Past and Future Medical Bills and Other Economic Losses

This set of damages would include past medical bills you have incurred, are currently incurring, as well as those forecast for the future because of your injury.

If your injuries are serious enough, a life care plan may be appropriate, where adaptive devices, treatments, therapies, modalities and other devices and procedures may be recommended to help you to cope and/or recover from your medical malpractice injury.

Vocational Losses

If your ability to work has been compromised, it may be appropriate to have your case evaluated by a vocational expert who will place a value on the loss to your career path because of the injury and prepare a forecast of recommended adaptive programs, schooling, or other training to help make up for that loss. At the end of the day, a value would be placed those vocational losses.

Lost Consortium Damages

When the injury affects the spousal relationship the patient has, there could be a claim for “loss of consortium,” where the injured spouse could claim that their relationship with their significant other has been permanently damaged and changed because of their medical injury. One example is when a spouse suffers a debilitating brain injury, where the relationship with their spouse has fundamentally changed for the worse.

General or “Pain and Suffering” Damages

Under Utah law, if you have suffered an injury and incurred medical bills and are entitled to reimbursement of those bills, you are also entitled to general or “pain and suffering” damages. These are non-economic damages that account for what you have been through – and what you will go through — the mental anguish you have experienced and will yet experience, any potential loss of mobility and embarrassment that your injury has brought and so on.

It’s In Your Hands

What you do after a medical mistake happens is up to you. If you feel like you have been the victim of medical negligence, I would encourage you to find out if this is the case. It could be a suspicion something happen or it could be a second doctor who told you that the first doctor did something wrong. However you find out, it’s up to you to do something about it. Although no one likes to make a fuss, it is only when people stand up for their rights that the medical industry takes notice and makes changes to improve patient safety. Remember that time is of the essence as you may have as little as one year to make a claim.

At the Kramer Law Group, we would be happy to talk to you about your potential case to see if we can help you through your situation. Please call us today to schedule your free consultation.