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.
Mississippi caps non-economic (pain and suffering) damages in medical malpractice cases at $500,000 per plaintiff, no matter how severe the injuries suffered by the plaintiff.
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. Mississippi follows a modified rule of several liability. Each defendant is proportionately liable for damages according to their percentage of fault for the injury for which damages are awarded, except that joint and several liability continues to apply to defendants who consciously and deliberately pursue a common plan or design to commit a tortious act, or actively take part in that act.
The Collateral Source Rule
Under Mississippi's 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.
The statute of limitations limits the amount of time a person alleging medical malpractice has to file a lawsuit against health care providers. In Mississippi, a medical malpractice action must be filed within two years from the date of the act or omission alleged to underly the injury, or from the date it was or reasonably should have been discovered, but in no case more than seven years after the cause of action accrues. In the event that discovery of the injury is delayed due to fraud by a defendant, or involves a foreign object in the plaintiff's body, the cause of action accrues when the plaintiff knew about, discovered, or should have discovered the foreign objects or fraud. For minors under the age of six, the cause of action may be filed within two years after the child's sixth birthday, or the date the child dies, whichever occurs first.
Additional rules affecting malpractice litigation in the State of Mississippi include:
Certificate of Consultation
In most cases, Mississippi requires that a certificate of consultation be filed along with the complaint in a medical malpractice case, attesting that the expert has reviewed the facts of the case and finds there to be merit to the malpractice plaintiff's claim. A certificate of merit is not required if the attorney instead files a certificate with the complaint stating that the plaintiff intends to rely solely on the doctrine of res ipsa loquitur (the thing speaks for itself) or informed consent in support of the claim.
The certificate of consultation must declare that the attorney filing the case has had the case reviewd by at least one expert, qualified under state law to give expert testimony on the issue of standard of care or negligence, and who the attorney believes is knowledgeable in issues relevant to the claim, and that the expert has concluded that there is a reasonable basis for the claim. In the alternative, the expert can certify that it was not possible to obtain expert review in advance of filing due to the statute of limitations, in which case the certificate of consultation must be filed within sixty days after service of the complaint. If the attorney is unable to obtain a certificate of consultation, the attorney may file a certificate attesting that at least three separate good faith efforts were made to obtain a consultation with three different experts, and that none of those contacted would agree to a consultation.
In cases where the plaintiff has made a request for medical records for the plaintiff's treatment by the defendants, and the records have not been produced, the plaintiff is not required to file the certificate until ninety days after the records have been produced.
Medical Expert Witness Restrictions
Mississippi requires that any expert who testifies in support of a personal injury or contract claim against a physician, arising out of the provision of or failure to provide health care services, must be licensed as a doctor of medicine within the United States.
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.