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.
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. Arkansas has eliminated joint liability, such that each defendant is held liable for damages in proportion to their percentage of fault.
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. Arkansas does not allow evidence of collateral source payments subject to limited exceptions, such as to rebut testimony that bills were personally paid by the plaintiff.
The statute of limitations limits the amount of time a person alleging medical malpractice has to file a lawsuit against health care providers. In Arkansas the statute of limitations is normally two years from the date of the injury. For foreign objects left in the plaintiff's body, not reasonably discovered during the initial two year period, the limitations period is one year from the date the object is or reasonably should have been discovered.
For minors injured by medical malpractice before the age of nine a malpractice action may be filed up to the minor's eleventh birthday. If the injury cannot reasonably be discovered before minor's eleventh birthday, the cause may be filed within two years after the injury is or reasonably should have been discovered or minor's nineteenth birthday, whichever is earlier.
Affidavit from a Health Care Provider
In Arkansas, for medical malpractice cases in which expert testimony is legally required, the plaintiff must establish reasonable cause for filing a malpractice casy be filing an affidavit from an expert health care provider who is engaged in the same type of medical care as each medical care provider defendant. The affidavit must describe the expert's familiarity with the governing standard of care, the expert's qualifications, the expert's opinion as to how the standard of care was breached, and the expert's opinion as to how the breach of the governing standard of care resulted in injury or death. This affidavit must be filed within thirty days after the complaint is filed.
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.