Mistakes in Treatment and the need for experts
Known as “Failure to Treat” – When a healthcare provider makes a mistake during the treatment of a patient, and other competent healthcare providers would not have made the same or similar mistake, you may be able to sue for medical malpractice.
Some treatment mistakes in the past are very obvious (such as surgically removing the wrong arm or leg), today, the mistakes that healthcare providers are liable for may be generally less apparent to you. For example, a healthcare provider might perform surgery on a patient’s abdomen (stomach) to remove an organ (i.e. appendix). Then days or even weeks later, the patient might continue to experience pain or a new pain begins in the abdomen. It would be very difficult for the patient to determine whether the continued or new pain is a result of a mistake in treatment or is the pain a result of a known risk or an acceptable bad outcome that does not reach the level of medical malpractice.
This is one of the reasons medical malpractice cases nearly always require expert testimony. A first and necessary step in a medical malpractice case is for the patient to consult a healthcare provider who has the education and experience directly related to your injury or health issue. You can find an expert yourself BUT you will most likely have a better end result if this is done under the guidance and direction of an experienced medical malpractice attorney. Once found, the expert healthcare provider will review the medical records in the case and give an opinion on whether medical malpractice occurred.
A healthcare provider’s failure to properly diagnose can be just as harmful to a patient as a surgically negligent injury. If a healthcare provider wrongly diagnoses a patient when other same or similarly competent healthcare providers would have made the correct diagnosis, and the patient is injured by the failure to diagnosis, the patient may have a good claim for medical malpractice based on the negligence of “Failure To Diagnose.”
It is important to recognize that the healthcare provider will only be liable for the harm caused by the Failure to Diagnosis. So, if a patient dies from a disease that the healthcare provider failed to diagnose, but the patient would have died equally as quick without the healthcare provider’s failure to diagnose, the healthcare provider will most likely not be held accountable for the negligence committed. However, a claim for the negligence committed may hold the healthcare provider accountable if a proper diagnosis would have allowed the patient to have an extended life.
Lack of Informed Consent
You most definitely have a right to decide what treatment you receive. Healthcare providers are fully obligated to provide sufficient details about procedures and treatments available so patients can make fully informed decisions on what treatment and/or procedures you are willing to accept. When healthcare providers fail to properly perform this aspect and you do receive full information and you cannot give fully informed consent prior to providing treatment, the healthcare provider may be negligent and held accountable for medical malpractice.
Treatment Against a Patient’s Wishes: Healthcare providers sometimes do not agree with you regarding the best treatment plan. You have a right to refuse treatment, even when healthcare providers believe that your decision may not be in your best interest. An example is where a patient has proper religious objections to a recommended treatment plan. When this type of disagreements exists, healthcare providers cannot “over rule” you and go forward with the objectionable treatment in spite of your denial to consent. Successful treatment will not protect the healthcare providers from your potential claim of negligence.
The Uninformed Patient: You have the right to make your own decisions about treatment. If you are uninformed about the benefits AND risks of the recommended treatment plan, then you are not making your decision based on full and complete information. However, healthcare providers are not held to informing you of ALL possible risks, bad outcomes and benefits. But, they are held to informing you about all important and substantial benefits and risks that allow you to make a full and informed decision. Therefore, healthcare providers are obligated to discuss sufficient information to allow you to come to a fully informed decision.
For example, if your healthcare provider recommends a surgery and proceeds to describe the full details of the procedure, but fails to discuss the same surgery has a high risk of causing you heart failure, then the healthcare provider may be negligent and held accountable for malpractice IF you suffer an injury as a result of heart failure during or after the procedure, as a result of the surgery. You must also show that you would have made the decision to NOT have the procedure performed IF you had known about the risk of heart failure. Also, the healthcare provider could be held accountable for a negligent act even if other reasonably competent healthcare providers would have recommended the same or similar surgery in the same or similar situation. The healthcare provider’s liability occurs when he/she failed to fully inform you and obtain “informed consent.”
The Emergency Exception: In situations where healthcare providers do not have the ability to discuss all information regarding the treatment plan (such as benefits and risks of the treatment plan) as a result of your condition at the time of initiating a treatment decision AND the emergent need for treatment is life threatening, then the healthcare provider is responsible for trying to save your life and does not have the ability to inform you of your choices. Medical malpractice law assumes that patients in urgent need of medical care who are incapable of providing informed consent would consent to life-saving treatment if they were able to do so. Thus, patients who receive treatment in emergency situations generally cannot sue their healthcare providers for failing to obtain properly “informed consent.”