Medical malpractice cases involve allegations that a health care provider violated the governing standard of care while treating a patient, resulting in an injury to the patient. The harm from medical malpractice can result from either an action taken by the health care provider, or by omission, the failure to take a medically appropriate action.
A medical malpractice case may be pursued by an injured patient against any licensed health care provider, including a medical doctor, nurse, physical therapist, and mental health care professional.
Medical malpractice actions are normally based upon the theory of negligence, alleging that a medical professional violated a duty of care to a patient, resulting in an injury to the patient. Examples of medical malpractice include,
Failure to diagnose a medical condition or disease,
Misdiagnosis of a medical condition or disease,
Failure to provide medically appropriate treatment,
An unreasonable delay in the start of treatment for a diagnosed medical condition or disease;
Mistakes in the prescription or dosing of medication.
Medical malpractice cases may also result from the assertion that a patient did not give informed consent for a medical procedure, with the patient alleging that the procedure involved a material risk that was not properly disclosed by the physician, and that the patient would not have agreed to the procedure had the patient been aware of the risk. The proper performance of a medical procedure is not a defense to an informed consent action. While an informed consent case can potentially be based on an allegation of battery, in general the allegation will be that the outcome of the medical treatment was different than it would have been had the patient been able to make an informed choice.
Informed consent claims can also arise based upon changes to a course of treatment or surgery made after consent was given. In some contexts obtaining the patient's consent is not necessary, For example, in trauma care or cases involving a patient with a mental health problem it may not be possible to obtain consent prior to the commencement of medical treatment, or consent must be obtained from a third party such as a guardian, spouse or parent.
Damages in medical malpractice cases normally take the form of economic damages such as wage loss, the cost of medical care, and other out-of-pocket expenses, and non-economic damages for pain and suffering resulting from the injury. In rare cases, the level of misconduct may rise to the level that a victim of malpractice can recover punitive damages against the defendant.
The Alabama Supreme Court has held that caps on non-economic damages in medical malpractice cases are unconstitutional under the state constitution.
Joint and Several Liability
Under Alabama law, when more than one defendant is sued, under joint and several liability each defendant may be required to pay the full amount of the verdict. This policy helps ensure that a malpractice victim will be fully compensated even if one of the defendants has insufficient funds or insurance.
The Collateral Source Rule
Under the traditional collateral source rule, payments received by the malpractice victim from third parties such as medical insurance companies would not be considered in the calculation of damages. Alabama has eliminated the traditional rule, and allows evidence both of the amount billed to the plaintiff and the amount paid by the collateral source to be presented to the jury as evidence of the reasonable value of medical services provided.
The statute of limitations limits the amount of time a person alleging medical malpractice has to file a lawsuit against health care providers. In Alabama, a patient has two years to commence a malpractice action starting from date of the injury, or six months from the date the injury was or reasonably should have been discovered. However, no malpractice lawsuit may be brought more than four years after the date of injury.
For minors under the age of four, a malpractice lawsuit may be commenced by the age of eight if the statute of limitations would otherwise have expired by that time.
Additional rules affecting malpractice litigation in the State of Alabama include:
Alternative Dispute Resolution
In Alabama, the parties to a malpractice case may agree to settle their dispute by arbitration. To be binding, an arbitration agreement must be in writing and signed by both parties.
Medical Expert Witness Restrictions
In order to qualify as an expert witness in a malpractice case, a health care provider must qualify as a "similarly situated health care provider", meaning that the proposed expert is properly licensed, is trained and experienced in the same discipline or school of practice, and has practiced in the same discipline or school of practice during the year preceding the date of the alleged breach in the standard of care. If the defendant is a medical specialist, then the proposed expert must also be trained and experienced in the same specialty and be certified by an appropriate American medical board in the same specialty, and must have practiced in the specialty during the year preceding the date of the alleged breach of the standard of care.
If you believe that you have been injured by medical malpractice, a lawyer can help you by reviewing the facts and medical records of your case to determine if you have a viable case under the laws of your state. Medical malpractice cases are complex, and are very costly to litigate. Medical malpractice lawyers working on contingency fees will advance the cost of litigation, recovering those costs from the eventual verdict or settlement. A malpractice lawyer should be aware of changes in the law, and can help you avoid missing a filing deadline for your case.