Gn3xVLuIAg9vZr84s8qdKiHxiTKNKErt: November 2012

Monday, November 26, 2012

EMTALA Issues Remain a Source of Confusion for Physicians and Medical Staffs

EMTALA (the Emergency Medical Treatment and Active Labor Act) was passed by Congress in 1986. The purpose behind the law was to ease the burden of public or so called charity hospitals from having to treat indigent patients because other hospitals refused to treat such patients due to their inability to pay. EMTALA is a non-discrimination law rather than a law establishing standards of care. The scope of the law is very limited. A hospital's obligation is to (1) provide an appropriate screening to determine whether an emergency condition exits and (2) if there is an emergency condition the facility cannot transfer a patient until the patient is stabilized or if other conditions of law are met.

A physician's obligation under EMTALA essentially compels a physician who is on call to go to the hospital's emergency department and to examine and treat a patient as necessary to satisfy the hospital's screen and stabilize duty. Contrary to what some hospitals claim (and what some medical staffs decide), there is no obligation under EMTALA to see or treat a patient in a physician's office. A positive or negative outcome has no bearing on the issue of EMTALA compliance. The futility of providing treatment to screen and stabilize is no defense to an EMTALA violation claim. Physicians who fail to comply with EMTALA can expect an investigation from the Office of Inspector General (OIG) of HHS and can face a civil monetary penalty of up to $50,000. Physicians who are found not to comply with EMTALA often face regulatory action (licensing board) and medical malpractice suits.

1. Medical Screening Examination (MSE) Requirement

42 USC §1395dd (a) requires a hospital to provide for an appropriate screening examination within the capability of the hospital's emergency department, including ancillary services routinely available to the emergency department, to determine whether or not an emergency medical condition exists. The law proscribes the basic elements of an appropriate MSE, but does not go so far as to dictate the clinical particulars that must be implemented.

2. Stabilizing Treatment Requirement

Subsection (b) provides in pertinent part:

...the hospital must provide either -

(A) within the staff and facilities available at the hospital, such further medical examination and such treatment as may be required to stabilize the medical condition, or (B) for transfer of the individual to another medical facility in accordance with subsection (c).

Under subsection (c) a patient who has not been stabilized may be transferred only if the individual (or his/her representative) understands the risk involved with the transfer and requests in writing transfer to another medical facility and a physician has a signed certification that based on the information available at the time of the transfer, the medical benefits reasonably expected from the provision of appropriate medical treatment at another facility outweigh the increased risks to the individual...

The terms "to stabilize" and "stabilized" are defined in Subsection (e), but are subjective or situational in nature. The definition depends on the risks associated with the transfer and requires the transferring physician faced with an emergency to make a fast on-the-spot risk analysis. Federal Appeals courts have supported the position that "stabilize" for the purposes of transfer is a relative concept that depends on the situation.

3. The Transfer Under subsection (c) of the law, a patient who has not been stabilized cannot be transferred unless there is a signed certification based on the information available at the time of transfer, the medical benefits reasonably outweigh the risk to the individual from effecting the transfer and only if the receiving facility has agreed to accept transfer of the individual and to provide appropriate medical treatment. Only unstable patients require a certification and consent of the receiving hospital. A patient who has been stabilized in the emergency room of the transferring hospital may be transferred to a receiving hospital without a certification and without an express written agreement of the receiving hospital. Stabilized patients may be transferred without any such limitation.

Conclusion Medical staffs must be completely aware of EMTALA's provisions to (1) ensure their members comply, and (2) have meaningful dialogue with hospital administrations, whose business objectives may conflict to some extent with those of the medical staff members. Physicians who are accused of EMTALA violations, either at the medical staff level, or as a result of an OIG investigation, need prompt and thorough guidance.

Why Should You Consult With an Erb's Palsy Attorney? Misdiagnosis of Bowel Cancer, What Can You Do? The Future of Obamacare After Oral Arguments Why the Fear of a Malpractice Lawsuit May Be Causing Malpractice How The Compensation Claim Process Works

Medical Negligence, The Third Leading Reason For Death In The United States

It is a surprising fact that the 3rd leading cause of death in the United States of America is medical malpractice. Mistakes created by people in the medical community that are preventable lead to approximately 100,000 premature deaths annually. And thousands more are seriously injured as a result of negligence of a doctor, nurse, nursing assistant, pharmacist, or other professional that they trusted to take care of them. When medical professionals make some mistakes, they're held accountable under law for the mistake. If you reside in the California area and wish to file a compensation claim against a negligent medical service provider, a medical malpractice attorney can fight for you to help you receive the monetary compensation you are due.

Medical malpractice is defined under law as the deviation of accepted standard care that leads to injury or death. Most medical malpractice cases never get filed. Medical malpractice takes many forms, such as:

• Injuries which happen during the birthing process, like oxygen deprivation

• Complications from surgery

• Complications that arise as a result of anesthesia

• Being dispensed an incorrect medicine or being given a different patient's medicine

• Not carrying out a patient's living will or advance directive order

• Failing to follow-up on a patient's condition

• Failing to obtain informed consent from the patient

• Failing to deliver treatment

• Failing to protect patient from falls within a hospital setting

• Improper treatment

• Not correctly diagnosing a disease or not diagnosing a disease within an appropriate period of time

• Mishandling of any medicines

• Performing treatments or surgeries which are medically unnecessary

• Prescription errors

These are simply some of the types of medical malpractice which you as a patient might undergo. It is vital that you act immediately to maintain your rights when you or possibly a loved one has become a victim of some type of medical negligence which has led to injury or death. It is possible that you're entitled to compensation that will cover your pain and suffering, any time lost from work, your medical expenses, and your future medical costs.

Your rights will be protected by a medical malpractice attorney. A knowledgeable attorney will fight the big insurance providers which are representing medical professionals and speak on your behalf against them whenever they would like your claim to be settled for pennies on the dollar. Medical experts and healthcare providers have lawyers spending so much time for their side to prevent admitting liability and being penalized monetarily for any mistakes that they make. That is why it is necessary that the victims of medical negligence be represented by experienced and knowledgeable medical malpractice attorneys who're seasoned in the courtroom when it comes to effecting justice for their clients and helping them obtain the monetary awards which are due them.

Have You Been A Victim of A Misdiagnosis of Melanoma?

Believe it or not, even with the growing awareness of skin care and sun safety, the main cause of death from a form of skin disease is melanoma. Melanoma is a type of skin cancer and it can be quite serious and aggressive, making it very important to address quickly. When melanoma occurs, melanocytes are affected. Melanocytes are specific types of cells that are in charge of giving skin its pigmentation, which is referred to as melanin. Melanin is a natural material that provides color for the skin and hair.

While everyone tends to think of just the skin area when discussing melanoma, it can also affect the iris of the eye, which is the area that is colored. That being said, it is most common for melanoma to develop on the skin that overall appears normal. It can also start off as a mole or other area that is abnormal and can change with time. Moles that are present from very early on, even birth, can develop into melanoma.

There are four main types of melanoma. The most commonly occurring form of the disease is referred to as superficial spreading melanoma. This is usually identified by the flat, irregular shape of the area, along with various shades of black and brown. Superficial spreading melanoma can form at any time, in all age groups, can be found in just about any area of the body, and is more commonly seen in people with fair skin.

Nodular melanoma is the second most common form of the condition and is typically noted by a raised area that is dark blackish blue or bluish red; however there are some forms that have no color. This form is the most aggressive form of the disease and accounts for roughly fifteen percent of all cases.

The third most common type of melanoma is lentigo maligna. This form of the disease is commonly seen in elderly people, and is found on the skin located on the arms, neck, and face, or any other area that has been damaged by the sun. This type of melanoma is recognized by its flat, large size, and can be light brown with areas that are darker in color.

The fourth type of melanoma is somewhat rare and is called acral lentiginous melanoma. This form of the disease is found on the palms of the hands, the soles of the feet, and under the nails and is more often seen in African Americans.

In addition to the above mentioned cases, there are also rare types of melanoma that form in the rear of the eye, in the retina, and even in the mouth. These forms of the disease are typically found during routine dental examinations or eye examinations. Even rarer, are cases of melanoma that form in the anus, the urinary tract, the vagina, the esophagus, and the small intestine.

Melanoma is a serious medical condition that can spread rapidly. While it is true that melanomas are not as common as other types of skin cancer, cases continue to rise each year, making it a leading cause of death related to dermatological issues. As people continue to age, the risk of developing melanoma increases as well, but it is important to note that younger people can also be affected.

Melanoma can be very aggressive, and can pop up at just about any stage of life. Since it can be a bit confusing distinguishing between a harmless mole and something more serious, the ABCDE guidelines have been put in place to help people judge their skin issues. "A" is for Asymmetry due to the fact that the shapes of melanomas are often irregular. "B" is for Border due to the fact that the borders of melanomas are also irregular. "C" is for Color because most melanomas have multiple colors. "D" is for Diameter because the majority of melanomas have a diameter of more than seven millimeters. "E" is for Evolving because melanomas change over time.

In order for a correct melanoma diagnosis to be made, a medical professional skilled in the field of dermatology, or other type of skin cancer specialist should examine the area in question. If you are seen by a primary care physician who does not specialize in issues with the skin, you should be recommended to a specialist. In the event that this recommendation is not made, a form of medical negligence may have occurred.

It is very important that any suspicious lesions be checked by a specialist since they can promptly make an accurate diagnosis and provide the best course of treatment. These professionals know how to examine the area, use special tools like a dermatoscope, and remove the discolored area to be further examined in a laboratory. Biopsies and laboratory tests are critical to making a correct diagnosis of melanoma. Follow up tests and examinations are also necessary. Furthermore, an incorrect dismissal of symptoms as something far less serious can also have devastating results that should not be left unpunished.

If you or someone you know has been the victim of a melanoma misdiagnosis you should not delay in seeking professional legal assistance. It is in your best interest to contact a personal injury attorney as soon as possible in order to ensure your legal rights are protected.

Since different states have various laws and statutes of limitations on this type of claim, it is not advisable that you attempt to file on your own without professional assistance. A personal injury attorney who is skilled in the area of medical malpractice and negligence knows the ins and outs of the system quite well and can help you every step of the way, from filing to settlement. Because most personal injury attorneys work on a contingency basis, you have no worries about funding your claim as it progresses through the system. An issue this serious should not be allowed to happen. Not only are you protecting your own interests by taking action, you are also helping to ensure this type of action does not happen to other innocent victims in the future.

Medical Malpractice - Can I Sue My Doctor?

It is the legal duty of all doctors to provide proper and adequate health care to their patients. They are legally allowed to refuse to take a new patient, whether due to personal reason or a clinical disagreement with a patient. However, if a doctor has accepted a patient, then he/she can not turn away that patient.

Patients have a legal right to get appropriate medical treatment. If the doctors do not or can not provide proper medical care, then it amounts to medical malpractice-for which patients can rightfully sue their doctors. We will look at three areas of malpractice in this article.

Negligence

Negligence is a major type of medical malpractice. A doctor can be sued for negligence if she fails to provide you with the kind of medical care that any reasonable, qualified doctor would give you in those particular circumstances.

If she does not meet that standard of competence, care and conduct, then you can legally sue her. If you suffer an injury or disease due to the negligence of your doctor, then she may be legally bound to pay you.

A doctor can not put forth any excuses, such as, "I did the best I could." If she fails to act reasonably, then she may have to pay her liability.

Failure to obtain informed consent from a patient

Failing to get informed consent from the patient before administering medical treatment is another type of medical malpractice. Sometimes it may also be considered an assault.

A doctor must inform you about your medical condition. You have a right to know the nature and details of the treatment recommended by your doctor. Unless you are well-informed about the tests and procedures involved, you are not in a position to give your consent to the treatment.

A doctor is not required to explain each and every risk, but she must disclose the risks relevant to your consent for the treatment.

A doctor is legally obligated to obtain your informed consent before starting your treatment. Informed consent means you consent to the treatment only when you are well acquainted with the nature of the medical procedure, risks involved and other possible options.

If the doctor does not follow this guideline, then she can be sued for medical malpractice. However, you can only sue your doctor if the lack of informed consent results in medical problems. Otherwise, your doctor will not be liable to you.

Patient-doctor Contracts

The third kind of medical malpractice is breaking the contract between patient and doctor. This is a recent addition to the list of medical malpractice. You must discuss with your lawyer how the abovementioned contract is related to your medical services plan.

If you are a victim of medical malpractice: what you should know

You need to speak with a personal injury/medical malpractice lawyer right away. They are experts at this sort of thing and know how to handle hospital administrations and insurance companies, you don't.

Don't sign anything! The hospital or doctor's office may want you to sign a "release" of some sort as a "routine thing" they do in these types of situation, don't sign it, and bring it to your lawyer.

A medical malpractice action must be brought to court within two years of the alleged act. Act quickly before the witnesses start to forget the events. It will cost you nothing to speak with a lawyer; not doing so is foolishness,

One final comment

Some people may be reluctant to bring a suit against a family doctor they have known for years and maybe even interact with socially, this is understandable. The truth is you have been insured by this person and deserve to be treated with respect and compensated for your injuries. Your doctor has insurance; this is why they have it!

So What Is Medical Malpractice?

Medical malpractice is a form of negligence case. In this negligence case, the offer is a healthcare provider, mostly a physician, and works on the state personal injury law. Medical malpractice condition applies when the physician digresses from the normal standard course of action, whether by intent or by mistake. For instance, if your hospital bed's rail isn't locked properly, that can be posed as a medical malpractice as an open-heart surgery performed in a different process can be. It can be in the form of wrong medication, lack of follow-up care, surgical, prenatal or delivery errors, including anesthesia.

Any form of physical care that is substandard is termed as medical malpractice. Substandard can be defined as violation of the normal procedure of medical actions.

In this case, the Canadian law definitely protects you from medical negligence from your physician, whether he is a private physician or a hospital employee. The first thing to be proven is the professional relationship between the physician and the patient. The second thing is that the patient hasn't given any informed consent to the recommended digression from the normal process. This normally happens when the physician explains the benefits, risk and detailed process of a recommended action, rather than the normal one, and the patient agrees to it.

If it is not informed and consented to beforehand, then the patient can claim compensation for the negative consequences that followed the medical malpractice. But just saying that you could have been hurt due to the malpractice isn't enough. You have to show real consequences, whether physical or economical, and its direct relation with the medical malpractice.

Compensation claims on medical negligence cases can turn out to be quite tiring, cumbersome and tricky at most. The plaintiff's prosecutor who is pretty much deft in the lawsuits will even make it so. The only way is to find yourself a good lawyer specializing in malpractice cases, and let him take it from there.

If it is not informed and consented to beforehand, then the patient can claim compensation for the negative consequences that followed the malpractice. But just saying that you could have been hurt due to the malpractice isn't enough. You have to show real consequences, whether physical or economical, and its direct relation with the malpractice.

Common Questions About Medical Malpractice

Those who have been victimized by the negligence or carelessness of a doctor, nurse, or medical organization, most likely have many questions going through their mind. No one ever expects to go through this type of ordeal and it is impossible to be prepared for what might happen. If you have found yourself dealing with a misdiagnosis, birth injury, medication error, plastic surgery error, or wrongful death, having a strong legal advocate on your side could make all the difference in the outcome of your case. You should not have to suffer because of the actions of another and the doctor or nurse should be held responsible for what they have done.

What is medical malpractice? This is a broad category of personal injury law that involves any error, negligence, or carelessness on the part of a medical professional or medical organization. When their treatment falls below the standard of care expected, they could be guilty of negligence. This does not include those who are merely unhappy with the outcome of their surgery or treatment. No one can guarantee that a certain result will come from a medical procedure and the law does not allow patients to sue if they are not happy with their progress. However, if undesirable results occurred because the doctor or nurse made a mistake, this could fall under medical malpractice.

What are the main types of medical malpractice? There are countless ways that patients have been harmed while under the care of a doctor. However, there are some mistakes that are more common than others and some that lead to more serious ramifications. Anesthesia is used extensively in surgeries so that patients can be put to sleep during painful procedures. The anesthesiologist has a huge responsibility on their shoulders, as too much of the drug can lead to serious injury or death. Birth injuries can occur if the mother unknowingly took a harmful drug or if the medical staff made a mistake during delivery. Another common type of case is misdiagnosis. Doctors are responsible for examining every aspect of each case so that they can accurately diagnose the illness. If they fail in this regards, the treatment will be ineffective or even worsen the patient's condition.

What if a patient died from medical malpractice? Wrongful death is a heartbreaking situation as it, by definition, is a preventable incident. Although filing a lawsuit against the person or persons responsible will not bring the loved one back, it is still necessary to hold the guilty party liable for what they have done. Not only could this ensure that it will not happen to another person in the future, but it can bring a sense of justice to the family left behind. If you would like to discuss your case with a professional, contact a medical malpractice lawyer from your local area to learn more.

Laws and Ethics in Psychology

There are many laws that control how psychology is used in our country. Most of these laws cover a variety of ethical problems that those in the field of psychology often face. There are certain codes and rules a psychologist must follow to protect patients as well as the public. These ethical principles not only help guide mental health professionals, but they also protect both health professionals and patients facing a wide variety of problems and difficulties. Professionals in the mental healthcare field may see many problems day to day in their careers, so many of these laws help guide them in making tough decisions.

Informed consent is an example of a law in the ethics of mental health care and psychological research. This particular law has been created in order to help protect patients and their family members. This law also serves as a guideline to researchers and mental healthcare professionals on how to properly treat and inform patients. Following laws such as informed consent laws help professionals protect themselves against medical malpractice suits as well as giving them guidelines to follow in the case that the medical professional is unsure how to handle a particular situation with a patient.

To a researcher, the laws surrounding informed consent may seem harsh, they are made to protect those who are naive to any consequences of any treatments and studies. Luckily, there are many loopholes in these laws and these loopholes are kind of built in to protect patients, their families, mental healthcare professionals, and psychological researchers.

Take this into consideration: a woman that has been involved in a terrible car accident. In order to survive, the woman requires major surgery. However, the woman is unconscious and unable to legally consent to the surgery. Should the doctor break the law and perform the surgery to save her life or should he do nothing and let the woman die (and have the situation on his mind for perhaps the rest of his life?) According to informed consent laws, the woman must be able to consent to treatment, but there is a loophole for this. In order to save the woman's life there is a loophole known as the Hippocratic Oath. This particular loophole has been created in order to save a person's life in situations such as this. Under the Hippocratic Oath, a promise that doctors make to ethically treat patients, a doctor will give the woman the treatment she needs to save her life.

What Damages Does a Medical Malpractice Claim Cover?

Was your child the victim of a birth injury? Did a doctor made a surgical error that caused you significant injury? Did a case of misdiagnosis mean that you were not able to receive the treatment you needed? Medical malpractice is a serious issue in the U.S. No-one is perfect and it has to be expected that mistakes will occur in hospitals and medical facilities. It is when those errors display gross negligence and carelessness that something should be done. Negligence in a medical malpractice case means that another doctor who was in the same situation would have acted differently.

Why is it important to file a medical malpractice claim? One reason is that it holds the guilty individual responsible for what they have done. This could ensure that the same tragedy does not affect another person. Another reason it is so important to file a claim is because it can allow you to get the finances necessary to get back on the road to recovery. In the wake of a medical malpractice case, the victim can be left facing mounting bills and expenses.

In a medical malpractice case, damages can be awarded for different elements. First is medical expenses. The amount of medical costs the victim has had to deal with will be calculated and the sum will be added to the award. Depending on the case, the victim may also receive compensation for the estimated amount of money they will need to cover medical costs in the future. Especially in cases where long-term care is required, the award for future medical costs could be substantial.

The burden of medical costs could be compounded due to the victim's inability to work. Based on how many months they already had to take off of work as well as how many months or years they will not be able to work in the future, the court could include this amount into the final verdict. Not all consequences of a malpractice case can be so easily calculated. Physical pain and mental pain and suffering can be compensated for. Things that will be taken into consideration include the loss of enjoyment they may incur because of their injury.

In cases where the victim of medical malpractice does not recover and dies as a result of their injuries, the family members they left behind could be entitled to some type of compensation. Even though no amount of money will ever be able to make up for the loss of a loved one, it is still important to pursue justice. A wrongful death lawsuit could take into consideration loss of salary, loss of companionship, medical expenses, funeral costs, and mental pain and suffering.

Not Failing When Doctors Fail

There really is such a thing as maternal instinct. Any mother will vouch for that. We reach out to snuggle our newborn baby and form a special mother-child bond right from the get go. Mothers are first to know when their baby is crying or ill and will be there for him to comfort and help heal him.

New mothers will also be the first to admit that they certainly don't have a corner on all the knowledge required to keep their baby happy and well. Her instincts will tell her something is wrong, but not always how to set it right. This is when she will turn to her baby's doctor for help. After all, this is what they toiled away for eight years in medical school to do.

Sad but true, some of those doctors after spending all that time and stress to become leaders in the medical field of their choice stop learning. They do not keep up with the latest in medical technology. When this occurs, they start making grievous errors. When an accountant or soccer coach makes an error, there will be hell to pay, but unlike a doctor's mistake, it won't be fatal.

Television abounds with ads that tell you if you took a certain drug while pregnant and your child suffered birth defects to call the advertised attorney to join a class action suit. Pregnant mothers and their unborn infants are unusually vulnerable to drug side effects. Everything that enters mommy also enters unborn baby. Doctors are aware of this and prescribe any drug carefully and with some reluctance. Some doctors, that is. The ones that keep current in their field of medicine are aware, others may not be.

When a doctor's mistake turns into a birth defect involving your infant, it is time call an attorney. You should do this not because the attorney can heal your baby, no one can, but a good attorney can fight for you to secure money for the continuing medical care your baby will require perhaps for the rest of his life. Raising a sick child with special needs is demanding enough without stressing also over mounting medical bills.

A strong law firm on your side will fight to get you money that will help pay for any medical bills you or your child might need, and compensation for the income lost when a parent is no longer able to work because they need to be with their child. Lawyers know how difficult this situation can be so they work hard to get you the money you will need to care for your child. They know how to use the legal system to your advantage so they can get you as much money as possible.

Parents love and protect their children and make things right when they go wrong. There are times when we just can't do it alone because we do not have expertise in the area where we need it. This is when friends, family and doctors come in. We trust doctors to do no harm to us or our child. When this trust is broken it is time to turn to the legal experts.

We did not fail as parents. The doctor failed us. The best thing to do now for our afflicted baby is to hire a reputable law firm specializing in malpractice law. They will be on our side fighting for the right of our child to give him the best care he can get.

Claiming For Cosmetic Surgery Compensation

Cosmetic surgery procedures are becoming more popular by the day and more people are choosing to go under the knife to feel better about the way they look. Men and women spend huge amounts of money on cosmetic surgery, which is an industry that makes billions every year, despite the current recession.

The most popular cosmetic surgery procedure by far is breast augmentation and women have 90 percent of all cosmetic procedures in the UK. Among the men who take up the other 10 percent, rhinoplasty (nose surgery), liposuction and gynaecomastia (man boob reduction), are the most popular procedures.

More and more private surgeries are popping up due to the increased demand in cosmetic procedures, and although most private surgeries are reputable and run by fully-qualified professionals, there are occasional horror stories where you hear about surgeons getting their patients in and out as quickly as possible to make as much money as they can. It's important to remember that every surgeon should provide their patients with the expected level of care.

A cosmetic surgeon should:

Be qualified: You should do the appropriate research to make sure your surgeon is fully-trained and qualified to perform cosmetic surgery procedures. Bear in mind that prior to April 2002, training was not a legal requirement, hard to believe, we know. Make sure you can get your surgeon to provide the necessary documents so you know they are reputable.

Be clear with the benefits and risks of the procedure: Your surgeon should properly inform you of all the risks of the procedure and should not give you unrealistic expectations, "This surgery will change your life" - the surgery won't change your life but it may give your self-confidence a boost.

Give you time: the surgeon should allow you space to think about whether you want to go through with the surgery once you are aware of all of the risks. Undergoing cosmetic surgery is a big decision and should be thought through thoroughly.

Make you aware of the alternatives: Your surgeon should make you aware of any alternative procedures that could help you so you don't have to undergo surgery.

Cases include extreme or unsightly scarring, lopsided breasts from breast augmentation, nerve damage from facelifts and a perforated bowl from incorrect procedures during tummy tucks.

All cosmetic surgery procedures carry risks and complications and if something has gone wrong, it doesn't always mean you can claim compensation. Some operations will leave unsightly scarring, but in most cases, you will have been informed of this before you chose to have the operation. You will need to prove the level of care fell below what is expected in order to claim for cosmetic surgery compensation. If you feel you have been treated during your cosmetic surgery procedure, you should contact a specialist lawyer to help you with your case. Medical compensation cases can be traumatic, especially if you've experienced physical and psychological damage, contacting a specialist will ensure you are properly looked after and given the right guidance regarding your claim and other support you may need.

Has Medical Malpractice Happened To You?

Medical malpractice is usually a term that's used when dealing with court cases, where a medical procedure goes wrong, or someone gets injured in some way, and a lawsuit is brought up. But what exactly is considered to be a medical malpractice, and how does the process go? Let's see what usually happens in these cases, how the court proceedings happen, and what you should know if this happens to you, so you can be prepared and ready to face any eventuality.

A medical malpractice is when a doctor or other medical professional makes a mistake, or does something that they weren't supposed to do, and this in turn causes undue pain or even death. If it resulted in an injury, and you were the patient, then you would be the defendant in the suit. If it resulted in death, then it becomes a wrongful death lawsuit, and the defendant is usually the executor or a family member. The core of most such cases usually focus on whether or not a medical error happened, and who was responsible. In order to establish that a medical malpractice did happen, you will have to prove four factors. First, you need to show that a legal duty exists whenever the hospital or clinic starts a medical procedure, that the medical provider failed to conform to the standard care, the breach of duty was the cause of the injury, and actual damage occurred such as an injury, financial loss, or death.

Usually, when someone wants to sue for medical malpractice, they need to hire a lawyer, and that lawyer files paperwork in a district court. The plaintiff has the burden of the proof, and needs to show to a judge or jury that a medical malpractice happened. This can be done through expert testimony, case law, and witnesses. Usually, these types of cases are brought against doctors and other medical professionals, along with the hospital or clinic. Both have large insurances to handle these cases, because these cases happen very frequently. If you end up winning, or a settlement is reached, both punitive and compensatory damage can be issued by the judge, and you may get a financial compensation based on each specific case.

If you think you've been the victim of medical malpractice, then there are many professional lawyers that can hear your case, and help you decide what your chances are. The majority of cases get settled, and it can be worth it to file these types of lawsuits in some cases. Your best chance is to consult a lawyer, and see what him or her about your particular case.

Should You Make A Medical Negligence Claim?

When we have been mistreated by a medical professional we are entitled to compensation via a medical negligence claim. However, many people are reluctant to make such a claim. There are a number of reasons for this.

Not Knowing Your Rights

Some people aren't even aware that they are entitled to make a medical negligence claim if they have been mistreated, misdiagnosed or received poor care. Of course, the medical profession isn't going to shout about the fact and so patients are largely unaware of their rights. It IS the case, though, that if you have suffered because of poor treatment then you CAN make a claim.

Not Knowing If You Qualify

A lot of people are understandably unsure if they qualify for medical negligence compensation. It is a complicated area of law but if you feel you have suffered physical or mental symptoms as a result of poor care, misdiagnosis, poor treatment or even bad advice then it is worth contacting a medical negligence solicitor so they can review your case and advise you accordingly.

They will establish if the person or institution had a duty of care towards you, whether or not they failed in that duty of care and the level of suffering you have experienced. All of this will help determine if you have a case or not and what level of compensation the solicitor will seek on your behalf.

If you do have a case they will then be able to progress medical negligence claims on your behalf and you can look forward to some level of compensation that will aid you in your recovery.

Feeling Guilty About Suing

Medical practitioners are, in the main, people we trust. This especially applies to GPs and midwives but even they can make mistakes. However, because of the trust we put in them and the often close relationship we can have with them some people find it very difficult to bring a claim when a mistake is made.

We don't want to think that we'll be ruining the career of a GP we've known all our lives or a midwife that had done a great job but made one small mistake. This is perfectly understandable, but it doesn't change the fact that there is still a case for medical negligence and the compensation that can follow.

Patients should remember that they won't be receiving their compensation directly out of the pockets of their GPs or other medical people, they will be paid out of the substantial insurance that every medical professional has. It is also unlikely that any careers will be ruined unless the mistake was incredibly serious and the professional is deemed unable to do their job - in which case, you are doing future patients a favour by removing them from harm.

Whatever your feelings about the likelihood of having a case or doubts about suing, speak to a specialist medical negligence solicitor to get the best advice there is and to ensure that you you receive the correct level of compensation should it be determined that you have, indeed, suffered from some kind of medical mistake.

The Supreme Court Decision on Obamacare

On December 26th, 2011, I wrote on my blog post: "the question here is whether or not requiring an individual to purchase health insurance is actually the same as Congress requiring a health insurance tax. And if this mandate falls under the rules of taxes, we are barred, legally, from questioning this." Not many people raised the possibility of a SCOTUS ruling that the mandate required in the ACA could in anyway be construed as a tax. In fact, most of the pundits said that there wasn't any conceivable possibility that the Justices could call this a tax. How could they, since the current administration had even claimed that this could not fall under any legal tax. I went on to say that this could fall under the Anti-Injunction Act, in which Congress has the unilateral authority to raise any tax that they deem necessary, and the we Americans could not even question the tax until after the tax was collected. I then pointed out that Congress had WAY TOO MUCH power, and that this sounded more like a monarchy or a dictatorship, rather than a republic.

Several people have asked me how or why I even thought it plausible that the Supremes might call this mandate a tax, and therefore legal and constitutional. And my answer has remained, it is simple. When one is dealing with our federal government, including the Supreme Court, most things are not what they seem. Our "leaders" enjoy doing the exact opposite of what the American people expect, or want. Much of America has been against the ACA since before it was written. Yet, Congress ignored the American people. Then the state lawsuits popped up in more than half of our states, and the popular decision was that at least the mandate portion of the bill was Unconstitutional. This gave much of America hope that the US Supreme Court in all of its wisdom would also follow suit and declare the mandate unconstitutional. And, as was hoped for and expected, they did just that, the mandate was declared unconstitutional. But, here's where one needs to look at the "leaders" past track records for some insight into their psyche, they have a habit of doing the unthinkable, or supporting the unpopular, or performing a "slight-of-hand" trick.

But, how did I determine that this was still a possibility, you may ask. That's a fair question. I guess the bottom line is "I don't trust these cats!" What you see is NOT what you get. Their yea is not yea, and their nay is not nay! And when they frequently declare that they have your and my best interests in mind, that is NOT true. They actually believe exactly the opposite. Their ultimate goal, as an entire body, is to protect their own power, and to maintain their control over each and every one of us. If this weren't true, there wouldn't even be an Anti-Injunction Act on the books, giving them unlimited power to raise taxes at their discretion!

And then, to accurately interpret the "tea leaves" as I did, one also needs to look at the make-up of the Court. When one analyzes the court and their voting records, it becomes clear that there are two "mavericks" on the Court, John Roberts, and Anthony Kennedy. Both of these two Justices have a history of going against their popular party stance or vote. And so, knowing this, I continued to ask myself, how on earth could either one of these two men find a loophole that gave them the latitude to sway the Court one way or another. And every time I wrote about the ACA, or studied the four questions brought before the Supreme Court, I kept coming back to the Anti-Injunction Act. In my simple way of thinking, it seemed the only place for real "wiggle room" was through the vehicle of a tax. And sure enough, this is exactly what Chief Roberts chose to do. It could have just as easily been Justice Kennedy who performed the prestidigitation. Knowing that either one of them were capable of entertaining the American people with a magic show, I felt strongly that the odds of success for the ACA went up dramatically. If each Justice had remained true to their stated party beliefs, the ACA would have been shot down 5-4, as there are 5 "conservatives" on the Court and 4 "liberals".

One other thing to think about is that Chief Justice Roberts, when he took the oath to become the newest Chief Court Justice, he made it really clear what he thought his responsibility to the Court entailed. He used the example of baseball to illustrate his philosophy of jurisprudence at the highest level. He said that the Chief Justices job was similar to an umpire. When someone attends a baseball game, they don't show up to watch the umpire, they come to watch the players, and the pitches, and the batted balls. The umpire's job is never to become the focus of attention, as this distracts from the game. He seemingly understood that he only wanted to be seen Chief who focused on the constitutionality of any case brought before the Court. He appeared to have a real desire to remain out of the political arena. He sounded like a Chief Justice who wanted to be remembered for his understanding of both the letter and the spirit of the law. And then, in one fell swoop, he made a philosophical about face, and thrust himself smack dab into the middle of the political ring, in spite of all of his past ramblings.

So, you see, Chief Justices Yea is not Yea, and his Ney is not Ney. He is no different than any of the other "leaders" that continually tell us that they have our best interests at heart. They see themselves as free-thinking, superior beings, who have been placed on this earth to assist us, as they know what's best for us, when we are incapable of knowing what's best for ourselves. Of course, many will say, well that may be true for your "leader" or for anyone else's "leaders", but that's not true for mine. My question for these people would be, "are you sure about that?" Just give them some time. It only took what, seven years or so, for Chief Justice to completely flip-flop on his philosophical position. It doesn't look too good for us Americans, does it? And if your banking on repeal, as that's what our "leaders" are telling us, it makes me mighty leery in believing that repeal will actually happen. The "tea leaves" suggest that we should expect the unexpected. And if America wants repeal of the ACA, and if the pundits believe that repeal is possible or even probable, then look out, my friend, that likely means "Obamacare" is here to stay!

PPACA Recusal

In late March, 2012, the US Supreme Court will hear oral arguments about the constitutionality of The Patient Protection and Affordable Care Act (PPACA), "Obamacare". Some have claimed this is the case of the decade, or possibly even the case of the century. There are nine justices on the superior court. One of the pertinent questions is whether or not nine justices will hear these arguments? Two justices are receiving outside pressure from different political groups to exercise recusal from participation in hearing the PPACA case when it comes before the US Supreme Court. Justice Clarence Thomas, and Justice Elana Kagan are under scrutiny for apparent conflicts with participating in this case.

The argument for the recusal of Justice Thomas comes from his wife's work as a conservative lobbyist. Until recently, Virginia Thomas was the President of Liberty Central, a conservative organization that has worked to repeal health care reform. In a letter from seventy-four House Democrats, they expressed their concerns over a conflict of interest regarding Justice Thomas participation in a case about health care reform. They state that the federal law merits recusal due to a conflict of interest of this nature. If a spouse promotes herself as a lobbyist against health reform and a vote against health reform by her husband who happens to be a Justice on the Supreme Court at minimum suggests there is a conflict of interest. And so the question has been loudly asked, will Justice Thomas recuse himself from the PPACA court case?

And then there's the newest member of the court is Justice Elena Kagan, the most recent Obama appointment to the Supreme Court. Federal law requires any Supreme Court Justices to recuse from a case if they had earlier "participated as counsel" in the case. The idea is that an attorney cannot act as both the coach and the referee in the same game. A person is simply incapable of maintaining complete objectivity under these circumstances. Imagine being the defendant and the judge at the same time. There's NO WAY that the judge can remain impartial and objective, when they participated in developing the legal strategy and defense, and therefore, the only reasonable option for Elana Kagan is recusal. We know what she should do, now the question has shifted from what to do, to will she do the right thing?

Skeptics suggest that she will not recuse herself. They show past communications and emails in which she has implied that she will not remove herself from hearing this landmark case. So, what if she doesn't exercise impartial judgment and remove herself, can she be forced to not participate?

Title 28, Section 455, of the United States Code governs recusal of any court, stating that a judge shall recuse himself in any case in which the judge's impartiality might reasonably be questioned. However, Chief Justice John Roberts weighed in on the discussion with this opinion in the Year-End Report on the Federal Judiciary. He pointed out that there are unusual cases where a justice has a conflict of interest and their potential partiality is legitimately questioned, however, in the lower courts, there's always a higher court to render an opinion on recusal or conflict of issue matters. But, with the Supreme Court, there is now higher court to act as a policeman. Because no higher court is available to review recusal decisions with the Supreme Court, it does present a problem, and the justices must let their conscience be their guide with decisions of recusal. That said, there is another matter of equal importance, each justice has an obligation to hear a case, stating: "if a justice withdraws from a case, the Court must sit without full membership." A justice cannot withdraw from a case simply to avoid controversy.

Phrases like "jurists of exceptional integrity" fail to alleviate real concerns that simply because a justice has been appointed to the highest court in the land, they are above reproach. The public should have great concern regarding the US Supreme Court when matters of Conflicts of interest arise. If a death penalty case involving a relative of a US Supreme Court Justice was appealed to the high court, everyone would agree that the related justice must recuse himself from this specific case. Although health care reform is of less significance than a matter of life and death, the analogy is appropriate, as it shows there are situations that render a justice partial and bias, and therefore likely incapable of making an objective ruling. For John Roberts to not even acknowledge that the public's concern for the possibility of a lack of impartiality is legitimate and a real possibility in his sixteen page report, ironically speaks to an overall lack of partiality from the Court and a raises the question whether Chief Justice Roberts is out of touch with the public's overall perception of the court. A Gallup Poll in October 2011 revealed that the Court's approval had dropped to the second-lowest rating ever recorded, at 46 percent approval.

Although "we the people" have some legitimate concerns about the potential lack of impartiality of the Court, "we the people" also had grave concerns about the PPACA from the beginning, but that didn't matter anymore than our concern for partiality of the Court matters. And therefore, the court will continue to act politically, rather than remaining purely judicial, constitutional and just, and for these reasons, I suspect neither Justice Kagan's, nor Justice Thomas' "guiding conscience" will lead them down the path of recusal. And their inability to see a potential conflict of interest exposes the Court for what it has become, an extension of the legislative branch of government. This shift in purpose of the judicial branch of government certainly isn't unique to only the 2012 Court as history shows many past Supreme Courts have been more political than judicial, but history also tells us this was certainly not the intention of the founding fathers.

Should I Sue My Doctor?

The family doctor, or general practitioner (GP), is part of the fabric of life in the UK, nearly everyone has one and they have likely had the same one for many years. Indeed, it is common for a doctor to know a patient from birth right through to old age.

Doctors or GPs become confidantes, friends in some cases, and in smaller communities are essential for everyone. So when one makes a mistake in your diagnosis or treatment and you are entitled to make a claim for compensation due to their medical negligence all sorts of moral questions arise.

Suing a doctor is not an easy decision to make, especially when they are close to you and your family. On the one hand, you are not going to want to upset or hurt your GP and friend, you aren't going to want to cost them money or damage their reputation. But at the same time, you could have suffered longer than you needed to or seen a condition get worse due to your doctor's mistake and you are, by law, entitled to compensation.

Every case is different and every person is different. Some will have no qualms in trying to get what they are due in the form of compensation, others will feel that the suffering they caused is not so bad that they wish to sue their doctor and others still will feel they suffered greatly and will reluctantly make a claim in order to receive the financial support they now need.

It is up to the individual to make a decision on whether to sue a GP or not based on their own individual circumstances, but if the decision is taken to proceed with a claim, then seeking professional, specialist help is a must.

Cases such as this, while delicate, are also complex matters and a specialised medical negligence solicitor is the ideal person or company to contact in order to make sure your claim is valid and will succeed. Many such solicitors exist and, if you are worried about the cost of going to court, offer no win, no fee and legal aid services.

In order to find a solicitor you can trust it is worth asking family and friends for personal recommendations, but if they don't have experience of a medical negligence specialist then searching the internet for "medical negligence solicitors manchester" and reading online reviews is an acceptable alternative.

The important thing is that, once having taken the difficult decision to sue your doctor, you feel comfortable with the individual or company that will represent you and plead your case in court.

Depending on the nature of the medical negligence and the suffering caused, medical negligence compensation can be in the tens or hundreds of thousands - for many, this is reason enough to pursue a claim against their doctor and is certainly motivation to find a good, trustworthy solicitor.

It is also worth remembering that your doctor will have insurance against this sort of thing and so is unlikely to be left out of pocket by your compensation claim.

Monday, November 26, 2012

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