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.
Alaska limits the amount of money that a person injured by medical malpractice can recover as compensation for non-economic damages. Non-economic damages are normally limited to $250,000, and injuries for wrongful death or a disability that is classified as more than 70% disabling are capped at $400,000. The limits on noneconomic damages do not apply to intentional misconduct, or to reckless acts or omissions by the defendant health care provider.
Joint and Several Liability
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. Alaska has eliminated joint liability such that a judgment is entered against each party found liable, consistent with the percentage of fault attributed to that party.
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. In Alaska, evidence of collateral source payments is inadmissible at trial, but may be introduced after the verdict to reduce the damages awarded to the amount actually paid.
The statute of limitations limits the amount of time a person alleging medical malpractice has to file a lawsuit against health care providers. In Alaska, a person claiming to have been injured by medical malpractice has two years to commence a claim starting from the date the injury is discovered or should reasonably have been discovered.
For minors under the age of eight, the period before the child's eighth birthday is not included in the time limit.
Additional rules affecting malpractice litigation in the State of Alaska include:
Alternative Dispute Resolution
In Alaska, the parties to a malpractice case may enter into a written agreement to resolve the claim by arbitration. If the parties do not agree to arbitrate, twenty days after the defendant answers the complaint the trial court may appoint a three-person expert panel to review and make findings about the case, including the cause of injury and whether the injury was caused by unskillful medical care.
Medical Expert Witness Restrictions
In Alaska, a proposed medical expert witness may not testify on the issue of the appropriate standard of care unless the witness is duly trained and licensed, trained and experienced in the same discipline or practice as the defendant or in an area of practice that is directly related to a matter at issue, and is certified by a board recognized by the state as having acknowledged expertise and training directly related to the particular field or matter at issue in the malpractice case.
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.