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.
Oklahoma caps non-economic (pain and suffering) damages in personal injury cases, including medical malpractice cases, at $350,000, without regard for the severity of the plaintiff's injuries. Exceptions apply if the injury results from the defendant's reckless disregard for the rights of others, gross negligence, fraud, or intentional or malicious acts.
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. Oklahoma instead applies principles of several liability, such that each defendant is liable for damages only in proportion to that defendant's fault for causing the plaintiff's injury.
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. Oklahoma has abolished the collateral source rule for medical malpractice cases and allows evidence of the amount paid to be submitted as evidence to the jury in order to determine the reasonable value of medical services received by the plaintiff.
The statute of limitations limits the amount of time a person alleging medical malpractice has to file a lawsuit against health care providers. In Oklahoma, the statute of limitations for a medical malpractice case is two years from the date the date of injury or, if later, the date the claimaint realized or reasonably should have realized that the allegedly negligent act or omission caused the injury. For minors under the age of twelve, the claim must be filed within seven years of the injury. For minors over the age of twelve, the claim may be filed within one year of the minor's reaching the age of majority, but in no event less than two years from the date of the injury.
Additional rules affecting malpractice litigation in the State of Oklahoma include:
Limits on Attorney Fees
Attorney fees in a medical malpractice case may not exceed fifty percent of the net judgment.
Certificate of Merit
A certificate 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. Oklahoma passed a statute requiring an affidavit of merit to be filed in medical malpractice cases, but the requirement was held unconstitutional and is thus no longer in effect.
Medical Expert Witness Restrictions
When determining if a proposed medical expert witness is qualified to testify on the basis of training or experience, the court must consider whether the proposed expert is licensed to practice medicine or has other substantial training or experience in any area of health care relevant to the claim, and whether the proposed expert is actively practicing or retired from practicing health care in any area of health care services relevant to the claim.
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 Oklahoma's apology law for medical malpractice action, any 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 plaintiff, or to a relative or representative of the plaintiff, which relates solely to discomfort, pain, suffering, injury, or death as the result of the unanticipated outcome of the medical care is inadmissible 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.