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.
Ohio limits non-economic (pain and suffering) damages in medical malpractice cases to $250,000 or three times the amount of economic damages awarded, up to $350,000 per plaintiff, whichever is greater. Ohio also imposes a cap of $500,000 in total for non-economic damages for cases involving multiple plaintiffs. For medical malpractice cases involving catastrophic injury, the caps are raised to $500,000 per plaintiff or $1,000,000 in total for cases involving multiple plaintiffs.
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. Ohio follows a modified rule of joint and several liability. For non-economic (pain and suffering) damages, each defendant is severally liable only to the extent of that defendant's share of responsibility for the plaintiff's injuries. For economic damages, if one defendant is determined to be more than fifty percent responsible for causing the injury to the plaintiff, that defendant is jointly and severally liable with all other defendants for the economic damages award. When that rule applies the other defendants are severally liable only for the share of economic damages attributable to them. For cases involving intentional torts, even if the defendant found to have committed an intentional tort is less than fifty percent responsible for the plaintiff's injury, that defendant is jointly liable with the other defendants for all of the plaintiff's non-economic damages. When that rule applies, all other defendants to whom less than fifty percent of fault has been attributed, and who have not been found to have committed an intentional tort, are severally liable only for the share of economic damages attributable to them.
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. Ohio has abolished that rule, and allows evidence both of the amount billed to the plaintiff and the amount paid for services to be presented to the jury in order to determine the reasonable value of medical services rendered.
The statute of limitations limits the amount of time a person alleging medical malpractice has to file a lawsuit against health care providers. In Ohio, the statute of limitations for medical malpractice actions is one year from the date of the act or omission underlying the claim or, if later, the date the cause of action was or reasonably should have been discovered, but not more than four years from the reasonable date of discovery. For a foreign object inside the plaintiff's body, the cause of action may be commenced within one year from the date of discovery. For minors, the statute of limitations begins to run when the minor reaches the age of eighteen, except that the cause of action must be commenced within four years of the date of the act or omission underlying the malpractice claim.
Additional rules affecting malpractice litigation in the State of Ohio include:
Limits on Attorney Fees
If the amount of the plaintiff's attorney's fees exceeds the statutory limit on non-economic damages for medical malpractice cases, the attorney must apply for approval of the fee by the probate court in the county in which the action was commenced or in which the settlement was entered.
Alternative Dispute Resolution
Ohio will generally uphold contracts for binding arbitration of medical malpractice actions, provided that the agreement to arbitrate is entered into prior to the diagnosis, treatment or care of the patient. Treatment may not be made conditional on the patient's agreement to arbitration. The contract for arbitration must meet specific statutory requirements, including providing for a thirty-day revocation period, in order to be valid.
In Ohio, if all parties agree, a medical malpractice case may be submitted to nonbinding arbitration. The results of the arbitration, including the reports of the arbitrators, are not admissible at trial.
Affidavit of Merit Rules
An affidavit of merit is a document created by a medical expert, attesting that the expert has reviewed the facts of the case and finds there to be merit to the malpractice plaintiff's claim. In Ohio, a complaint that alleges medical malpractice must include one or more affidavit of merit, provided by a qualified expert witness, relative to each defendant named in the complaint against whom expert testimony is required to establish liability. The affidavit of merit must include a statement that the affiant has reviewed all medical records reasonably available to the plaintiff that are relevant to the complaint, a statement that the affiant is familiar with the governing standard of care, and the opinion that the standard of care was breached by one or more of the defendants, and that the breach caused injury to the plaintiff. If the plaintiff is unable to file an affidavit of merit at the time the complaint is filed, the plaintiff may petition the court to extend the time for filing for a reasonable period of time up to ninety days, upon a showing of good cause. The period for filing may only be extended beyond ninety days if the court findes that the defendant or a nonparty has failed to cooperate with discovery, or that other circumstances warrant extension.
Medical Expert Witness Restrictions
In order to qualify as an expert witness in a medical malpractice action, Ohio requires tht the proposed expert be a health care practitioner, licensed within the United States. At least three fourths of the proposed expert's professional time must be devoted to the active practice of medicine or surgery, or to its instruction in an accredited university. The proposed expert must practice in the same specialty as the defendant, or in a similar specialty. No medical expert may testify against a health care provider in another medical specialty unless the expert shows that both the standards of care and practice between the two specialties are similar and that the proposed expert has substantial familiarity between the specialties. If the proposed expert is certified in a speciality, the expert must be certified by a board recognized by the American Board of Medical Specialties or the American Board of Osteopathic Specialties in a specialty having acknowledged expertise and training directly related to the particular health care matter at issue.
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 Ohio's apology law, no statement, affirmation, gesture, or conduct expressing apology, sympathy, commiseration, condolence, compassion, or a general sense of benevolence that is made by a health care provider or their employee to the patient, or to a relative or representative of the patient, that relates to the discomfort, pain, suffering, injury, or death of the patient as the result of the unanticipated outcome of medical care is admissible as evidence of an admission of liability or as evidence of an admission against interest.
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.