Introduction to Medical Malpractice in Washington D.C.

Posted on April 18, 2010 by Gabriel Assaad

 All health care professionals owe a duty to their patients to provide medical treatment that meets a recognized standard of care.  A medical malpractice case can be brought when this...

All health care professionals owe a duty to their patients to provide medical treatment that meets a recognized standard of care.  A medical malpractice case can be brought when this standard of care was not met and injury resulted.  The standard of care can be defined as how a prudent physician would have managed a patient’s care under the same or similar circumstances.  Establishing a failure to meet this standard is a critical aspect of a successful malpractice case.  Some cases are based on what a doctor did not do, such as failing to diagnose cancer. 

Negligence and Injury in Malpractice Lawsuits

When a claim for damages caused medical malpractice is filed with a court, the judge or jury must determine who caused the accident.  The person whose negligence caused the accident typically pays for the resulting damage.  In Washington D.C., they subscribe to the doctrine of contributory negligence.  This means that if you were slightly at fault, even as little as 1%, then you cannot recover any of your damages.  Even if the other person involved is 99% at fault, your claim is 100% gone.  Contributory negligence statutes originated in the common law of England, which stated that anyone who negligently harms another, cannot be held liable if the victim himself was liable in any way.

Statute of Limitation in Washington D.C.

The statute of limitations is the period of time in which you are allowed to file a lawsuit against someone else.  The courts and legislature have reasoned that it is beneficial to society to have disputes resolved in a timely fashion.  Therefore, the law imposes a time limit on when an injured party may file a lawsuit.  The District of Columbia has a three-year statute of limitations for medical malpractice lawsuits.  After the expiration of the statutory period, unless a legal exception applies, the injured person loses the right to file a lawsuit seeking damages or other relief.

Cap on Awards

There are two types of damages available in medical malpractice cases:

Compensatory damages—These are designed to make the damaged person as whole as possible.  These can be divided into two sub categories, actual damages and general damages.  Actual damages seek to reimburse a plaintiff for financial losses sustained.  General damages seek to compensate a victim for losses that are not monetary in nature.

  • Punitive damages are not based on actual injuries sustained.  Rather, they are a way to punish the defendant for intentional or grossly negligent conduct.
  • The District of Columbia does not place a cap on the amount of damages recoverable in a medical malpractice action.

When to Talk to a Lawyer

If you believe that you or someone you know has been the victim of medical malpractice, it is important to contact a qualified attorney as soon as possible to ensure that important deadlines in your case do not expire.  A skilled malpractice attorney can help you obtain the compensation, which you may be entitled to receive.

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Is this Fair?

Posted on May 27, 2009 by Gabriel Assaad

 

I have recently read an article by Jane Mundy,  which I thought I would like share on my blog, it discusses California medical malpractice caps and insurance, and their effect on people:
 

Several years ago Greg M. was told he had a small tumor and was given a few options; he decided upon surgery—a decision he now lives to regret, every day of his life. "I was told by Kaiser that I would be in hospital for 3 days but stayed for 8 days," says Greg. And the hospital's doctors would subject Greg to 4 more surgeries as they tried to correct the initial medical malpractice.

"They left a gaping hole between the urethra and the bladder—it wasn't connected very well," Greg explains. "I experienced a lot of leakage—my urine was not going through the catheter into the bag; instead it was leaking into my body. That happened over many days. By the seventh day of my hospital stay, the doctor moved the catheter to the correct position and it worked; now the urine was coming out properly. But the massive leaking caused irreparable scarring and my urinary system was compromised--I am still dealing with it today. 

When I tried to get Kaiser—my health maintenance organization (HMO)--to correct this problem, they told me that they didn’t know what my problem was. My doctor said he didn’t know what was causing the leakage but he would keep trying to fix the problem. I would go into the Kaiser hospital periodically and they would run some tests—they checked my urinal system for blockage and indeed it was blocked. It got so bad that I couldn't pee due to so much scar tissue. Eventually it shut down and I wound up in ER about 3 months later.

Next up, they misdiagnosed my problem—saying I had a bladder infection. But the problem was the scar tissue; I have undergone 4 subsequent surgeries since they first removed the tumor. 

Kaiser Mediation

In my attempt to get help, Kaiser denied responsibility. When you are a member of Kaiser you must sign a consent form before their doctors can operate—that applies to all major operations. In a nutshell, the form says if something goes wrong, Kaiser cannot be held responsible or liable. 

Secondly, as a Kaiser member, you must agree to mediation rather than a lawsuit. My only recourse was to take them to mediation. The mediator determined that Kaiser was at fault. Malpractice in the state of California pays a maximum of $250,000 and I was awarded this amount plus my wife was awarded $75,000 because of my loss of ability to perform sexually. I was awarded an additional $31,000 for additional medical procedures. My total settlement was $356,271. 

I am not happy with this settlement. I am wearing diapers and will likely wear them for the rest of my life. I also have erectile dysfunction, possibly for life. My estimated life span is supposed to be another 20 years (I am 60 this year) so that isn't a fair trade-off: just over $300,000 for the next 20 years with no sex and in diapers. (Another issue was brought up during the deposition: my life span has been shortened and I will probably live to be 70 or so instead of 80.)

Arbitration is final and by doing this, I think Kaiser wants to limit their liability. They have deep pockets so this amount is nothing to them but our lives have been drastically and deeply changed. Before this happened my wife and I enjoyed a healthy sex life, now we look forward to nothing. That is just the way our cards fell."

Is this fair? No sex and diapers for the next 20 years, $49/day... This poor man receives less than $50 for his injuries cause by Kaiser.  I believe that it is far from fair!!!

This is just one story of thousands of such patients that have been a victim of medical malpractice and have been victimized by the system.  It is bad enough these people are victims of negligence, but now that is just the beginning, there next step is to be victimized by the system.

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Baseless Allegations Concerning Medical Malpractice Tort Reform

Posted on February 22, 2009 by Gabriel Assaad

A doctor in Maryland uses scare tactics to convince citizens that medical malpractice reform is necessary.  In an editorial in the Baltimore Sun, Dr. Hass wrote:

At a time when the nation's economy is slumping and the governor is proposing to mandate that Maryland hospitals and physicians provide more free care to lower-income families, it's ironic that the state House Judiciary Committee, led by trial lawyer Joseph F. Vallario Jr., is proposing legislation to roll back the reforms in the state's medical malpractice insurance policies enacted in 2004 ("Attack of the trial lawyers," editorial, Feb. 17).

Such a rollback would ultimately result in higher malpractice insurance rates for doctors and hospitals, higher health care costs for consumers, higher health insurance premiums for businesses and, of course, higher incomes for well-heeled trial lawyers.

Perhaps the "attack" of these lawyers on physicians and hospitals will only abate when enough doctors have left Maryland and enough hospitals have closed that they no longer have anyone left to sue.

There is numerous articles that have discredited the fallacy that medical malpractice lawsuits cause higher medical malpractice premiums, health care costs to consumers, and an exodus of doctors from sates.  In fact, look at California, they have had medical malpractice caps for over 20 years and there is no change compared to other states that have not passed tort reform.

In DC, there are no caps.  The last time I checked, there are no shortage of doctors or exodus.  In fact, the DC Metro area is overly saturated with physicians to the point where physicians' salaries are less here than many other parts of the country for a lack of demand.  With respect to higher premiums, if you look at the data, medical malpractice cases account for less than 1% of the health care costs in the country. 

The author's use of attack is indicative of the lack of facts to support the position taken by thus doctor.  This doctor should look at the insurance companies as for the cause of higher premiums an look at the insurance companies books before he blindly blames the "attacking" lawyer.

I suggest to this doctor or anyone who has the same viewpoint to pray that no one in their family is on  the receiving end of being malpracticed upon.

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