Medical Malpractice

Charbonnet Law Firm

New Orleans Medical Malpractice Attorney

Medical errors are a frighteningly common occurrence in our hospitals, emergency rooms, doctors’ offices, clinics, long-term care facilities, and even patient’s homes and pharmacies.

A recent Johns Hopkins University study estimates that medical error is the third leading cause of death in America after heart disease and cancer, resulting in the deaths of 250,000 people in the U.S. every year.

Other studies put that number even higher at closer to 440,000 fatalities. One in seven Medicare patients who receive care in a hospital become victims of a medical error.

A survey of recent studies on medical errors in hospital settings estimated that a staggering 210,000 preventable errors are made each year that contribute to the death of hospitalized patients alone, not accounting for outpatient clinics and long-term care facilities that carry similar risks to patients.

Why are Medical Errors So Common?

According to the Agency for Healthcare Research and Quality, there are several human behaviors that are at the root of most medical errors. The best way for hospitals and other medical facilities to prevent medical errors is to create systems that catch these common behavioral mistakes.

The most common behaviors that lead to medical errors are:

  • Communication problems. Issues with communication between healthcare team members or physician and patient, either written or verbal. This can include failure to obtain consent or insufficient patient education.
  • Failure to identify or assess the patient properly. When the health care team fails to properly identify the patient or make a complete patient assessment.
  • Human failures. Human failure to follow standards of care, or hospital policies, processes, or procedures such as poor documentation, verification, or labeling.
  • Unqualified to perform tasks. When someone performs a task they are unqualified for or lack the knowledge to perform properly.
  • Inadequate flow of information. When information does not follow the patient as they are transferred to a new facility or service area of a hospital, the new health care team lacks the information they may need to provide the best treatment.
  • Staffing shortages or poor workflow. When there aren’t enough staff to handle a shift, there is a greater risk of medical error.
  • Inadequate policies. When a hospital lacks policies to protect patients.
  • Insufficient training or education. When staff is not properly trained or educated to provide an acceptable standard of care.

 

What Is Medical Malpractice?

Medical malpractice is a general term that covers a number of systems and human errors in medical care that lead to harm or injury to a patient. It can include action or inaction on the part of a health care worker, such as a pharmacist filling a prescription incorrectly or a physician failing to inform their patients of the risk of a particular medication.

Put simply, it may be medical malpractice when a patient is harmed by a doctor (or another medical professional) who has failed to competently perform their medical duties.

Generally, these are the types of medical malpractice claims:

Medication errors

A prescription drug error is any preventable healthcare event such as the wrong medicine or dosage being prescribed that may cause harm to the patient.

Anesthesia errors

Anesthesia is the medication most often used to keep patients from feeling pain during surgery. When an error is made, patients can suffer from a range of injuries including heart attack or stroke, brain damage, spinal cord injuries, and in very severe cases, coma and death.

Birth injuries

A birth injury is any type of harm to a baby that occurs during or near the time of birth. Injuries may be temporary or lifelong, mild to severe.

Surgical errors

A surgical error is a preventable mistake made by a surgeon or other medical professional during surgery.

Infections acquired in a hospital setting

Hospital-acquired infections are caused by viral, bacterial, and fungal pathogens; UTI and surgical site infections are common.

Defective medical devices

Dangerous or defective medical devices such as faulty surgical instruments can cause serious injuries to patients.

Failure to diagnose / misdiagnosis

Failure to diagnose or misdiagnosis is a specific type of medical malpractice where a physician fails to take the proper steps to diagnose or accurately diagnose the patient’s medical problem.

Delayed diagnosis

A delayed diagnosis is when a patient’s health condition, disease, or illness is not diagnosed within a reasonable amount of time, causing an avoidable treatment delay that injures the patient.

Medical record errors

A medical record error is when a reporting mistake is made in a patient’s medical records such as missing lab results or allergy information. In medical malpractice cases, medical record errors are responsible for incorrect medical evaluation and treatment.

Mental health medical malpractice

A mental health malpractice claim may come about when a mental health practitioner such as a marriage counselor or psychiatrist has a disregard for professional boundaries, treats their patient in a negligent manner, or otherwise abuses the power that they have over their patient.

Nursing home abuse

When a nursing home, rest home, or long-term care facility abuses or neglects a resident and causes injury, they may be legally liable for nursing home abuse or eldercare malpractice.

Failure to order appropriate tests

When a medical professional fails to order appropriate test(s) to confirm or rule out a diagnosis, a patient’s health condition might not get diagnosed. This can lead to an untreated illness and irreparable harm to the patient. Failure to order medical tests is one of the leading causes of missed and delayed diagnoses.

Failure to follow up or act on test results

If a physician gets test results and fails to inform the patient of the results or advise next steps for treatment or diagnosis, it can cause serious injury to patients that may rise to the level of malpractice.

Technical medical errors

Medical errors caused by healthcare technology include robotic surgery errors, electronic medical record mix-ups, and defective infusion pumps. The hospital or healthcare facility responsible for managing the equipment may be held liable for injuries.

Inadequate monitoring after a procedure

Inadequate postoperative care can lead to infections and other serious injuries. When the lack of care rises to the level of negligence, the hospital may be held liable for damages.

Improper treatment

If the patient is treated for an illness in an incompetent way, or in a way that no reasonable doctor would treat for that illness, resulting in injury, then the patient may have a medical malpractice claim. Patients may also have a medical negligence claim if the correct treatment was offered but then administered incorrectly, causing harm.

Failure to warn a patient of known risks

A medical professional is obligated to warn patients of the known risks of surgery and undergoing anesthesia, medical procedure, or prescription drug; this is called the duty of informed consent. If the patient would have requested an alternate treatment had they known about the risks, the doctor could be held liable if the treatment provided causes injury.

Hospital and emergency department errors

There is a wide range of hospital and emergency department errors that can be the cause of a medical malpractice suit, such as sending a patient home when they should have been admitted for care.

Sexual misconduct

In the context of medical malpractice, sexual misconduct is any non-consensual sexual relationship that occurs between a doctor and a patient under their care. When a medical professional commits sexual misconduct against one of their patients, the physician intentionally violated the standard of care and can therefore be held liable for their actions.

How Do I Know if I Have a Medical Malpractice Case?

Determining if and how medical malpractice took place can be challenging. It is important to speak with a skilled, trusted attorney experienced in Louisiana medical malpractice cases right away if you believe you or a loved one was harmed by a medical error or negligence.

Four Elements of a Medical Malpractice Claim

The plaintiff – typically with the help of a medical malpractice lawyer – has the burden of proof for the following four elements to prevail upon the action of negligence:

  1. A duty of care. A healthcare provider owes a duty of care to their patients. Proving that there was a duty of care is usually straightforward and shown through the existence of a doctor-patient relationship at the time the patient received healthcare services.
  2. The healthcare provider was negligent. The plaintiff must prove that the doctor was not reasonably skilled, competent, or careful in the diagnosis or treatment of their healthcare needs and that the physician’s actions or lack of action caused harm that a competent doctor would not have caused in similar circumstances.
  3. The doctor’s negligence caused the injury. With the help of medical expert testimony, the plaintiff must prove that the doctor’s negligence caused the injury; not the illness that they were seeking treatment for.
  4. The injury led to specific damages. In order to bring a medical malpractice claim, the patient must have suffered specific damages as a result of negligent care.

What Types of Damages Can I Recover in a Medical Malpractice Lawsuit?

A successful medical malpractice claim results in a settlement that compensates the victim (or their loved ones) for damages. The three categories of damages available in medical malpractice cases are general, special, and punitive.

General damages (non-economic damages)

General damages are non-economic damages such as pain and suffering, emotional trauma, loss of enjoyment of life, loss of future earning capacity, and loss of quality of spousal relationship. Non-economic damages don’t come with a definite cost so the dollar value is usually determined after evidence of the suffering is provided by family members and an expert witness.

Special damages (economic damages)

Special damages are economic damages such as lost wages, medical bills, in-home care, and physical therapy related to the injury. Calculating the value of economic damages is fairly straightforward, though there is usually some guesswork involved in estimating future medical expenses.

Punitive damages

Punitive damages are much harder to prove and more rarely awarded. The State of Louisiana does not allow punitive damages in most cases. The law varies from state to state but in essence, your Louisiana lawyer must prove that the doctor knew that they behaved in a particularly egregious manner that was harmful to the patient.

Louisiana Laws Governing Medical Malpractice

Louisiana’s Patient Compensation Fund automatically covers all public hospitals and associated healthcare workers. It also covers private “qualified healthcare providers” who can become members of the Fund if they meet certain requirements. Louisiana law caps medical malpractice damages for healthcare providers who are members of the Fund to $100,000 plus interest per patient per incident. Awards over that amount are paid directly by the Fund. Total medical malpractice damages in Louisiana are capped at $500,000 plus the cost of any future medical expenses. The PCF pays for future medical expenses directly, as they occur.

The statute of limitations for filing a medical malpractice claim in Louisiana court is one year from the date of the malpractice, or within one year of the “discovery of harm.” So, for example, a doctor may have prescribed you a combination of medications known to cause liver damage, but you might not discover that damage until months later. In Louisiana, all medical claims must be filed within three years of the date of the injury or malpractice, regardless of when they are discovered. In general, surviving family members have one year to file a wrongful death case in Louisiana.

Before filing a medical malpractice suit in Louisiana, victims of medical malpractice must submit a written request to the Patient Compensation Fund for the review of the case by a group of experts. The request details the events, injuries, and allegations of the case. The Fund reviews the request and notifies the victim if the offending doctor is a “qualified healthcare provider” covered by the Fund and if a panel will be convened to review the case. If so, a panel of three doctors and one attorney (the attorney serves only as an advisor) is convened to review the case. The doctors on the panel are charged with determining whether the evidence supports the conclusion that malpractice occurred, and whether that malpractice caused the injuries in question. The panel’s report is considered medical expert testimony. Panel reports are admissible evidence at trial and can be used in alternative dispute resolution, and any party may call any member of the panel as a witness.

If your case goes to trial, Louisiana law gives individual judges wide discretion to interpret statutes and decide medical malpractice awards. Regardless of how your case is resolved, don’t try to navigate the complex medical malpractice system alone. If you or a loved one has been injured by medical error or negligence, you owe it to your family to speak with a skilled Louisiana medical malpractice attorney right away.

Medical Malpractice and Birth Injuries in Louisiana

Errors made during the birth of a child are a particularly egregious form of medical malpractice. Medical errors during gestation, during delivery, or in the first crucial moments outside the womb, can result in a lifetime of costly care, the lost potential of an individual, and untold pain and suffering for the victim and their family members.

Common birth injuries include:

Cerebral Palsy

Cerebral palsy is a congenital disorder that causes issues with movement, muscle tone, or posture; it is often caused by abnormal brain development that happens before birth.

Brain Injuries caused by oxygen deprivation

When the brain experiences deprivation of oxygen, it suffers injuries such as Cerebral hypoxia and anoxia.

Facial paralysis

Facial paralysis can be caused by nerve damage from congenital conditions, birth trauma, or disease.

Cephalohematoma

Cephalohematoma is a minor condition that occurs during the birth process when pressure on the fetal head ruptures small blood vessels. This can happen when the head is compressed against the maternal pelvis during labor or because of pressure from forceps or a vacuum extractor used to assist the birth.

Nerve Damage such as brachial plexus

Brachial plexus birth injuries are typically caused by trauma to the neck during the birth process.

Fractured collarbone

Fracture of the clavicle or collarbone is the most common type of fracture that occurs during labor and delivery. The clavicle is most likely to break during a breech delivery or during a difficult delivery.

Seizures, shock, or coma caused by perinatal asphyxia

Perinatal asphyxia—also called hypoxic-ischemic encephalopathy— is caused by a lack of oxygen to the brain, resulting in slowed-down mental processes. The decrease in brain energy causes excessive nerve impulses in the brain, which leads to seizures, coma, and sometimes irreparable brain damage.

Subarachnoid or intracranial hemorrhage

Among the types of intracranial hemorrhage caused by birth trauma, subarachnoid hemorrhages are one of the most common types of intracranial hemorrhage. A subarachnoid hemorrhage causes bleeding between the brain and the membranes that cover it.

Spinal cord injuries

Spinal cord damage happens when mechanical force or an illness affects the infant’s spine during labor and delivery.

When the birth of a child turns into a waking nightmare of unexpected medical challenges and needed care, it can be difficult for loved ones to think clearly and understand exactly what happened and who is responsible. As your new baby recovers, you owe it to your child to speak with a caring, trusted birth injury attorney with knowledge of and experience with Louisiana medical malpractice law. Charbonnet Law Firm has medical malpractice lawyers in New Orleans who can help guide you through an injury claim for this unimaginably difficult experience and make the best possible decisions about your legal rights to protect your family after experiencing birth trauma.

What To Do If You Suspect Medical Error

Medical error or negligence is not always obvious, and healthcare providers very rarely admit an error that may have caused harm. A hospital or medical group may actively work to correct an error its staff made without ever letting you know something went wrong. Or if an obvious error takes place, the physician, facility, or insurance company may pressure a patient or legal guardian to sign a hasty settlement.

If you witness, learn about or suspect medical malpractice that has caused you or a loved one harm:

  1. Find a new health care provider. Seek care and advice from another healthcare provider who you trust to be honest and competent.
  2. Document everything. Keep all written communications (diagnoses, insurance claims, prescriptions, and directions) and write down everything that you can remember about the circumstances of your care and your interactions with healthcare staff, including dates and times.
  3. Find a medical malpractice lawyer. Speak with a trusted medical malpractice attorney who can provide legal advice to help you understand your case and your options.

How to Choose a New Orleans Medical Malpractice Lawyer

Here are some steps to choosing the right Louisiana personal injury lawyer for you:

  1. Build a list of options. Search online, contact a local bar association or ask for referrals from a doctor who you trust, your personal contacts, or a local attorney who works in another practice area.
  2. Research each attorney. Spend time reading through each attorney’s website, checking customer reviews or testimonials, and assessing their relevant experience. You are looking for an attorney with a proven record of success with medical malpractice claims. They should have years of experience handling claims like yours and have many positive client reviews or testimonials.
  3. Narrow down your list. Once you have weeded out attorneys who do not meet your criteria, narrow down your list to two or three options.
  4. Schedule a call. Schedule a call with each of your final candidates to get the feel of each attorney; you want to feel comfortable with the person you will be working with.

Charbonnet Law Firm, LLC Can Help. No win, no fee. Guaranteed.

It takes time to gather evidence, prepare and argue a medical malpractice case. It also requires resources such as retaining expert witnesses to testify, medical evaluation of the case, financial review for loss of future earnings, among many other issues.

Contact a skilled medical malpractice attorney in New Orleans with experience winning Louisiana medical malpractices cases today for an initial consultation. At Charbonnet Law Firm, our skilled legal team will be by your side every step of the way, helping you navigate the legal and insurance systems, and building the strongest case possible to win the compensation you deserve. Should you need a trial lawyer to take your case to trial, we will be there.

Call us today for a free consultation with a member of our dedicated legal team. We will help you understand your medical malpractice case or wrongful death claim, your options for compensation, and what comes next. And if you choose to work with our trusted, experienced team, we will handle all the details and fight for the best settlement possible, so that you and your family can focus on healing.


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