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. Iowa has modified joint and several liability, such that it is not applicable to a defendant who is found to bear less than fifty percent of the fault assight to all the parties. A party found to bear 50% of more fault for an injury is jointly and severally liable for economic damages. Joint and severa liability does not extend to non-economic damages (pain and suffering).
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. Iowa has abandoned the common law rule, and allows the submission to the jury of evidence both of the amount billed and amount paid for purposes of determining the reasonable value of medical services.
The statute of limitations limits the amount of time a person alleging medical malpractice has to file a lawsuit against health care providers. In Iowa, a plaintiff has two years from the date that the injury was or reasonably should have been discovered to bring a malpractice claim, but no claim may be filed more than six years from the date of injury unless the injury was caused by a foreign object. For minors under the age of eight a malpractice action may be filed until their tenth birthday, or within the standard limitations period, whichever ends later.
Additional rules affecting malpractice litigation in the State of Iowa include:
Limits on Attorney Fees
In Iowa, the reasonableness of any contingent fee agreement between the plaintiff and the plaintff's attorney is subject to review by the court.
Medical Expert Witness Restrictions
If a malpractice claim alleges violation of the standard of care by a physician, surgeon or dentist, an expert witness may only testify as to standard of care if the court finds that the proposed witness's medical or dental qualifications relate directly to the medical or dental problems at issue in the case, and to the type of treatment administered in the case.
An apology law prevents a plaintiff from using an apologetic or concilatory statement made by a defendant as evidence of the defendant's liability. Under Idaho's apology law, any portion of a statement, affirmation, gesture, or conduct expressing sorrow, sympathy, commiseration, condolence, compassion, or a general sense of benevolence that was made by the person to the plaintiff, to a relative of the plaintiff, or to a decision maker for the plaintiff that relates to the discomfort, pain, suffering, injury, or death of the plaintiff as a result of an alleged breach of the applicable standard of care is inadmissible as evidence. Similarly, any response by the plaintiff, relative, or decision maker to such an expression is inadmissible as evidence.
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.