What is Wrongful Birth?

Thursday, July 13, 2017
Reproductive rights have become a contentious issue in the United States. Many believe it is and essential right a woman to determine when, under what circumstances, and how often she will give birth in her lifetime. There is a viewpoint promoted by some religious groups that every conception should be treated as a human life and carried to term. But others see this as a fundamental denial of the mother’s right to determine if and when she will give birth. The problem becomes an especially thorny one when the woman is carrying a child who will never be able to live a normal life and may be subjected to painful and expensive medical procedures and intense suffering. This situation forms the basis for two types of legal action in some common law legal systems, such as the United States, for “wrongful birth” and “wrongful life.” These two causes of action may arise when a doctor knows that a woman is likely to be carrying a child with a serious congenital defect and fails to inform the parents, resulting in the pregnancy being carried to term,  allowing the severely ill child to be born who requires expensive care to maintain a poor quality of life. It may involve:
  • The withholding of genetic information that would predict the likelihood of a congenital disease or abnormality
  • Failing to disclose the availability of genetic or prenatal screening procedure
  • Failing to inform a woman who was given a drug, or who became ill with a disease like rubella, that the fetus could have been affected
  • Failing to inform parents of an abnormality or high possibility of one, discovered during routine prenatal care
. . . any of which information could have led the parents either to avoid a pregnancy likely to produce a seriously ill or abnormal child altogether, or to terminate an existing pregnancy. In brief, a wrongful birth action is one brought by the parents against the doctor for withholding the information they needed to make a well-informed decision. A wrongful life action, in contrast, is brought by the child, through its parents or guardian, also against a medical professional or hospital, for withholding information, resulting in the child’s pain and suffering, which could have been prevented by the mother terminating the pregnancy or in some cases by avoiding becoming pregnant in the first place. It could also arise if a doctor negligently performed a sterilization procedure on a woman at risk for bearing a child with genetic abnormalities and a pregnancy and birth resulted from the doctor’s negligence. At issue are not the child’s disabilities, but the fact of the life itself. Only five U.S. states allow a civil action for wrongful life.

What Damages May Be Claimed in a Wrongful Birth Action?

These are the potential damages that parents may claim in a wrongful birth action:
  • The additional costs of raising a child with special needs, above and beyond those of raising a healthy child, such as medical care, special schooling, therapy, medical devices, and so forth;
  • Parent’s emotional distress
  • Loss of consortium
  • Pain and suffering of the mother during delivery of an abnormal or unhealthy baby

Complexity and Controversy

Wrongful birth and wrongful life cases are fraught with complexity and controversy. Proving causation can be tricky. While the doctor cannot be held responsible for actually causing the abnormality, it must be shown that the doctor was negligent in withholding information that would have allowed the parents to make an informed decision to prevent the birth of an unhealthy child. Opposing religious, philosophical, and political views regarding the sanctity of life and the beginning of legal personhood further complicate the matter and add a layer of controversy and emotionality that goes beyond the medical facts of the case. Parents contemplating this type of action need to ensure that they hire an experienced attorney without ambivalence about this type of case, who will provide the wholehearted commitment and compassion to help the plaintiffs weather what might be a wrenching emotional storm.
Posted by at 8:49 pm

What is Emergency Room Malpractice?

Monday, January 9, 2017
Medical malpractice can occur in any part of a hospital, at any point during the patient care process. However, malpractice during emergency medical care deals with a special set of rules. Standards of care are different in emergency rooms (ERs), as are the legal duties of first responders. Texas state laws protect first responders from most lawsuits. Emergency rooms by their very nature are more prone to accidents than ordinary doctor’s offices and operating rooms. However, ER staff may still be guilty of medical malpractice in certain circumstances.

Accepted Standards of Care

The law holds ER doctors, nurses, and other personnel to the same medical standards of care as those working outside of the emergency room. Any deviation from these standards, causing preventable patient harm, may constitute medical malpractice. Like other malpractice cases, emergency room malpractice cases center on the legal theory of negligence. A plaintiff must prove that an ER staff member breached his or her duties of care. A breach typically means that a competent professional would not have made the same mistake in the same circumstances. A breach of care in the ER may be malpractice. Since the emergency room is not a calm, quiet environment in which to perform duties, mistakes must be severe for the courts to deem it negligence. The ER is a naturally chaotic environment in which many reasonably competent practitioners may make the same mistakes. Mistakes made due to incompetence, an understaffed ER, unsanitary conditions, or carelessness, however, may be medical malpractice. These types of ER errors are inexcusable and can mean the difference between life and death to a patient in need.

Types of Emergency Room Negligence

Misdiagnosis is the most common ER error due to the need to move patients in and out of the ER as quickly as possible. Doctors may not get the full picture, dismiss patient complaints, or fail to take the necessary amount of time to make a proper diagnosis. Misdiagnosis can seriously harm a patient when he or she does not receive the right treatment for the actual condition, or receives treatment for a condition he or she does not have, such as special medication or even unnecessary surgery. Misdiagnosis, delayed diagnosis, and failure to diagnose are forms of medical malpractice in the emergency room if another doctor could have made a timely, correct diagnosis in the same circumstances. Other common types of ER errors that can result in lawsuits include:
  • Paramedic, first responder, and EMT neglect
  • Anesthesia errors
  • Surgical errors
  • Contaminated blood transfusion
  • Medication errors
  • Failure to order correct tests
  • Misinterpreting test results
  • Refusing patient care unfairly
  • Failure to see a patient as quickly as their condition necessitates
  • Improper discharge of a patient
Each of these mistakes can cause significant patient harm and death. If a doctor dismisses or downplays a patient’s complaints in the ER, leading to failure to order the proper tests, misdiagnosis or failure to diagnose, and improper discharge of a patient, the patient will not receive the care he or she needs to improve. Instead, the patient will go home and his or her health condition could worsen. If this sounds like your own situation, you may have grounds for an ER malpractice case.

Get Help with ER Malpractice

Medical malpractice cases are always complex and deserve the careful attention of a team of malpractice attorneys. However, ER malpractice cases are even more complicated than ordinary medical malpractice lawsuits. The ER has a special set of rules and expectations for its personnel and patient care. For help with your ER malpractice case, speak to an attorney as soon as possible.
Posted by at 9:27 pm

What is the Affidavit of Merit?

Thursday, October 27, 2016
We trust our doctors and other medical staff to put our best interests first, tending to our needs in a professional manner. While the vast majority of them do this, it’s not always the case. When a medical professional fails to adhere to a certain standard of care, he or she is being negligent. A breach of duty is the basis for a medical malpractice claim. Victims of medical malpractice are entitled to compensation, but they must adhere to certain procedures and file the appropriate documentation.

The Basics of a Medical Malpractice Claim

In general, to win a medical malpractice claim, you must prove three things:
  • That a relationship existed between you and the doctor. The distinction here is that you and the doctor had a professional relationship – in other words, he or she had to agree to render medical services to you. You can’t sue someone for advice you overheard at a party.
  • The doctor was negligent. There’s a difference between being dissatisfied with your care and true negligence. Negligence occurs when a medical professional fails to exercise reasonable care in the course of diagnosis or treatment. In legal terms, another doctor would have acted differently, given the same or similar circumstances.
  • The negligence directly led to your injury. Being “almost” injured isn’t proper legal grounds for a claim. Since doctors treat the sick to begin with, you must prove it was your doctor, and not your illness, that led to your injuries.
Medical malpractice claims have certain deadlines. Most important is the statute of limitations, which is two years from the incident that led to injury. Another important consideration is the Affidavit of Merit, a statement you must file along with your personal injury claim.

What is an Affidavit of Merit?

In legal terms, an affidavit is a sworn statement that essentially assures the “merit” of your claim – in other words, the extent of the defendant’s wrongdoing and the strength of your allegations. The affidavit of merit is a product of tort reform that most states enacted to reduce the number of frivolous lawsuits. Language requirements for an affidavit vary by state, even municipality. But all affidavits of merit have three things in common:
  • An expert witness must sign off on it, and they must be in the same field of practice as the defendant. For example, a cardiologist could not be a medical expert in a case involving your obstetrician.
  • That expert reviewed your case personally, and;
  • That expert believes your case has merit. In other words, he or she would have acted differently from your doctor in similar circumstances.
The professional signing your affidavit of merit need not be an expert witness testifying in court. While some doctors may feel comfortable stating they would have acted differently, they may feel uncomfortable testifying against a colleague. Additionally, your attorney may think that the expert who signed your affidavit might not be an effective testifying witness. Reasons for this can differ, but one possible reason might be that the doctor is very technical or not approachable.

Do I Need an Affidavit of Merit to Win?

All states require an affidavit of merit, but the time to file it varies. In Texas, you must file your affidavit of merit with your initial complaint, unless the statute of limitations for your case is within 10 days. In those cases, you have 30 days to file an affidavit of merit. Failure to comply with these regulations could result in the courts dismissing your case. For the best outcome, get in touch with a personal injury attorney soon after suspected medical malpractice; he or she can help ensure a timely filing of all documentation.
Posted by at 10:12 pm

What Is Pharmaceutical Malpractice?

Wednesday, June 15, 2016
The medical professionals who tend to your health have an obligation to serve you to the best of their abilities. When we think of malpractice, we most often refer to the doctors and nurses who provide you with health care, but what most people do not realize is that your pharmacist is also capable of committing malpractice.

Pharmaceutical Malpractice: A Primer

A pharmacist is a critical member of your health care team. When your doctor writes a prescription, it is his or her job to ensure the new medication doesn’t interfere with any other medications you take. When we refer to malpractice as a whole, we are talking about any action in which a professional fails to take appropriate cautions or provide “reasonable care.” A medical professional who doesn’t act reasonably under the circumstances has committed negligence. Most pharmaceutical malpractice lawsuits fall under one of the following four categories.

Defective Drug Recalls

The Food and Drug Administration regulates prescription medications. Before the organization clears a medicine for consumer use, the drug must undergo years of testing and clinical trials to ensure its efficacy and safety. Unfortunately, drug companies sometimes rush their medicines to the market without conducting appropriate testing. When this happens, patients bear the brunt of unforeseen side effects. The Food and Drug Administration issues recalls when it finds a prescription medication is inherently dangerous or can lead to serious side effects. Unfortunately, by the time the agency issues a recall, the damage has likely happened. If you have been hurt by taking a drug that is later recalled, you may be a candidate for a pharmaceutical malpractice case.

Side Effects of Prescription Drugs

You may also be a candidate for a pharmaceutical malpractice suit if you have been a victim of unforeseen side effects from a prescription drug, either in the short or long term. Drug companies perform clinical trials before their products hit the market, but a three-year clinical trial may not anticipate long-term side effects from taking a medication. Some of the more serious side effects may not be apparent until 10 years after beginning to take the medication. For example, recent research reveals that long-term use of proton pump inhibitors, such as Prilosec, can lead to kidney damage. Prescription drugs can lead to many unforeseen short-term effects, as well. If a pharmacist dispenses a medication without properly consulting your history, drugs may negatively interact and lead to injury.

Pharmacist Errors

Even if a drug company has tested the medication rigorously and finds it completely safe, you can be at risk for injury due to human error. Pharmacists are trained health care providers and have a duty to exercise reasonable care. When another professional would have acted differently in the same circumstances, a pharmacist may be guilty of negligence. Common forms of pharmacist negligence include:
  • Drugs that are mislabeled and dispensed to a patient erroneously.
  • A pharmaceutical assistant may fill the wrong prescriptions—which can look similar but perform completely different functions—and cause an injury.
  • A pharmacist may dispense a medication that contains potential allergens to a patient with known allergies.
  • A pharmacist may fill the correct prescription, but at the wrong dose.
There are numerous ways a medical professional can commit pharmaceutical negligence. If you think a medication has injured you, an experienced attorney can help. Talk to a member of our compassionate legal team today by taking advantage of our free initial consultation. We will help you decide on your next steps and get recourse from the parties responsible for your injuries. Do not pay for someone else’s negligence—get in touch with us today. You only pay if we win.
Posted by at 10:10 pm