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.
Maine has imposed a cap of $500,000 on non-economic (pain and suffering) damages in medical malpractice cases, including cases alleging wrongful death.
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. In Maine, each defendant is jointly and severally liable to the plaintiff for the full amount of the damages awarded to the plaintiff. However, any defendant has the right to request of the jury findings of the percentage of fault contributed by each defendant, and if a defendant is released from the action the plaintiff is precluded from recovering from the other defendants the portion of the damages attributable to the share of fault assigned to the released defendant.
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. Maine has eliminated this rule for
professional negligence cases.
The statute of limitations limits the amount of time a person alleging medical malpractice has to file a lawsuit against health care providers. In Maine, the statute of limitations for medical malpractice is three years from the date when the cause of action accrues. For foreign objects within the body of the plaintiff, the statute of limitations starts to run from the date the object was or reasonably should have been discovered.
For minors, the statute of limitations is six years after the cause of action accrues, or three years from the date the minor reaches the age of majority, whichever period ends first.
Additional rules affecting malpractice litigation in the State of Maine include:
Limits on Attorney Fees
Maine limits attorney fees to one third of the first $100,000 recovered for the plaintiff, twenty-five percent of the next $100,000, and twenty percent of damages exceeding $200,000. For damages paid in future installments, the attorney fee is calculated after reducing the periodic payments to a lump sum value. If a plaintiff prevails in a medical malpractice action, the plaintiff's lawyer may petition the court to review the statutory fees for reasonableness.
Pre-Litigation Screening Panels
Maine requires that a pre-litigation screening panel review all medical malpractice claims before they may be litigated. The goal of screening is to identify cases of professional negligence that merit compensation to the claimant, and to encourage early settlement of those claims, as well as to identify and to encourage the withdrawal of claims that lack merit. Screening panesl are comprised of a chair who is appointed by the court, and an attorney and a health care provider selected by the chair. For cases involving multiple defendants the chair may select an additional health care provider as a member of the panel. The parties to a claim may stipulate to bypass the pretrial screening process, or may request that certain preliminary legal issues be litigated before the case is submitted to a screening panel. Unless agreed by the parties, the panel may not hear or decide comparative negligence or claimed affirmative defenses. The panel chair may require that the parties litigate by motion any potentially dispositive affirmative defenses prior to the submission of the case for screening. Within thirty days of the conclusion of presentations to the panel, the panel must issue a written report finding whether or not the defendants violated the applicable standard of care, whether any violation of the applicable standard of care was a proximate cause of injury to the patient, and if so whether any negligence by the patient was equal to or greater than the negligence of the health care provider or practitioner. Statements made during the screening process, and the report produced by the panel, are confidential and are not admissible in a subsequent court action.
An apology law prevents a plaintiff from using an apologetic or concilatory statement made by a defendant as evidence of the defendant's liability. In Maine, any statement, affirmation, gesture or conduct expressing apology, sympathy, commiseration, condolence, compassion or a general sense of benevolence made on or on behalf of a health care rpovider to the alleged victim, or to a representative or family member of the alleged victim, is inadmissible as either an admission of liability or as a statement against interest. However, that rule does not affect the admissibility of a statement of fault.
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.