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.
In Kansas, non-economic (pain and suffering) damages in medical malpractice cases are capped at $250,000, no matter how sever the plaintiff's injury.
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. Kansas allows only several liability, pursuant to which defendants are proportionally liable for damage according 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. Kansas has abolished the collateral source rule, and allows submission to the jury both of the amount billed and the amount paid by a plaintiff 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. The statute of limitations for medical malpractice claims in Kansas is two years from the date of the act or omission alleged to have resulted in the injury, or from the date of its reasonable discovery, not to exceed four years from the date of the alleged act of negligence. For minors under the age of eighteen, a medical malpractice action may be brought within one year of the age of majority, but in no cases more than eight years after the time of the act or omission that forms the basis of the cause of action.
Additional rules affecting malpractice litigation in the State of Kansas include:
Limits on Attorney Fees
Attorney fees in malpractice cases are subject to judicial review and approval.
Malpractice Screening Panels
Upon the request of a party or the order of the court, the judge in a medical malpractice case is to convene a medical malpractice screening panel. The panel is comprised of a health care professional selected by the plaintiff (or claimant, if no lawsuit has yet been filed), a health care provider selected by the defendant (or person against a claim has been made), a expert jointly selected by the plaintiff and defendant (or claimaint and person against whom the claim is made), and an attorney selected by the court. The attorney serves as chair of the screening panel, but has no vote. Within 180 days after the screening panel is commenced, the panel must issue a written report making recommendations on the issues of whether the health care provider departed from the governing standard of care in a manner that caused injury to the plaintiff or claimant. Any member may file a consurring or dissenting opinion. The written report of the panel is admissible in subsequent legal proceedings.
A medical malpratice action, the court must require a settlement conference to be held not less than thirty days before trial. The attorneys who will conduct the trial, and all parties and persons authorized to settle the claim, must attend the hearing unless excused by the court on a showing of good cause. Statements, offers, and exhibits used at the settlement conference are not admissible at trial or in any subsequent action.
Medical Expert Witness Restrictions
In Kansas, in order to qualify as an expert witness in a medical malpractice case, during the two preceding years a proposed expert must have devoted at least fifty percent of his or her professional time to actual clinical practice in the same profession in which the defendant is licensed.
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.