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. Connecticut has modified that rule, such that each defendant is liable for a portion of the damages awarded in accord with their percenf fault amount of fault. However, if within one year of the final judgment some portion of the damages is uncollectable, the court may reallocate liability for the uncollected portion based uon the other defendants' relative degrees of fault for the injury.
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. Connecticut does not allow evidence of collateral source payments to be submitted at trial, but evidence of payments 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 Connecticut a person claiming injury from malpractice has two years from the date of an injury to file a claim, or, if the injury is not and should not reasonably have been discovered within that initial two year period, not more than three years after the act or omission underlying the claim. There is no exception for minors.
Additional rules affecting malpractice litigation in the State of Connecticut include:
Limits on Attorney Fees
Connecticut limits attorney fees by statute, to an amount not to exceed 33-1/3 percent of first the $300,000 of damages, 25 percent of the next $300,000, 20 percent of the next $300,000, 15 percent of the next $300,000, and 10 percent of any damages awarded in excess of $1.2 million. Where a cause of action is substantially complex, unique or different from other injury or wrongful death cases so as to warrant a deviation, a claimant may waive the percentage limitations on the fee.
In Connecticut, the parties to an action alleging injury or death from the negligence of a health care provider, the parties must submit to mediation. If the mediation does not successfully resolve the cause, and the parties agree, the parties may submit a stipulation to the court in order to narrow the issues for trial, to expedite discovery, or to assist the parties in preparing the cause for trial.
Certificate of Good Faith
In Connecticut, a plaintiff alleging injury or death as the result of medical negligence must obtain and file from a qualified medical expert a certificate of good faith, signed by the expert, opining that there appears to be evidence of medical negligence and including a detailed basis for the formation of that opinion. The certificate must be contained in the plaintiff's complaint, initial pleading or apportionment complaint.
Medical Expert Witness Restrictions
In order to testify as an expert in a medical malpractice action, the proposed expert must be a "similar healthcare provider" in terms of training, experience, specialization and licensure as compared to the defendant, or must be demonstrated to the satisfiaction of the court to possess sufficient training, experience and knowledge as a result of practice or teaching in a related field of medicine, so as to be able to provide such expert testimony as to the prevailing professional standard of care in the relevant field of medicine.
Connecticut has a broad rule for medical malpractice cases, excluding any statements, affirmations, gestures or conduct expressing apology, fault, sympathy, commiseration, condolence, compassion or a general sense of benevolence made by a health care provider or its employee as evidence of an admission of liability or of an admission against interest.
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.