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. Minnesota applies a modified rule of joint and several liability to medical malpractice cases. Defendants are liable for damages in proportion to their percentage of fault for the plaintiff's injury, except when a defendant is assessed more than fifty percent of the fault, when two or more persons have acted in a common plan or scheme that resulted in the injury, or where a person is proved to have committed an intentional tort. Also, if within one year of the final judgment a portion of the damages are uncollectable, the court may reallocate liability for the uncollected portion of the judgment in proportion to the other tortfeasors' degree 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. In Minnesota, evidence of collateral source payments is inadmissible at trial, but may be introduced after verdict to reduce the damages 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 Minnesota, the statute of limitations for medical malpractice is four years from the date the cause of action accrues. For minors under the age of eighteen the statute of limitations may be suspended until the age of majority, however the suspension may not extend the cause of action by more than seven years from the date the cause of action accrues or more than one year after the minor reaches the age of majority.
Additional rules affecting malpractice litigation in the State of Minnesota include:
Adjustment of Attorney Fees
If the attorney fee charged to the plaintiff is based upon a percentage of the amount awarded to the plaintiff, the percentage must be based upon the award after it has been adjusted under the collateral source rule.
Affidavit of Expert Review
In Minnesota, when a plaintiff alleges injury as the result of medical negligence, the plaintiff must file along with the complaint an affidavit stating that the facts of the case have been reviewed by the plaintiff's attorney with a qualified expert, and that it is the opinion of the expert that one or more defendants deviated from the applicable standard of care when providing treatment to the plaintiff, resulting in injury. If the affidavit cannot be reasonably obtained before the action is commenced due to the statute of limitations, the plaintiff must file with the complaint an affidavit to that effect, and must file an affidavit of expert review within ninety days after service of the summons and complaint.
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.