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.
The Oregon Supreme Court has held that caps on non-economic damages in medical malpractice cases are unconstitutional under the state constitution. However, Oklahoma has create a non-economic damages cap of $500,000 applicable to wrongful death actions that may still apply in a malpractice case if it involves a wrongful death claim.
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. Oregon follows a modified rule of joint and several liability, pursuant to which defendants are liable only in proportion to their degree of fault for any damages awarded. However, if within one year of final judgment the damages are uncollectable, the court may reallocate the liability for the uncollected portion of the judgment among the other joint tortfeasors based upon their relative degrees 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. Oregon has modified that rule, and allows evidence of collateral source benefits that have not been paid for by the plaintiff to be admitted as evidence. For example, evidence of collateral source payments by a public assistance program such as Medicaid would be admissible, but evidence of payments obtained from a disability insurance policy purchased by the plaintiff would not.
The statute of limitations limits the amount of time a person alleging medical malpractice has to file a lawsuit against health care providers. In Oregon, the statute of limitations for medical malpractice cases is two years from the date of injury or its reasonable discovery, but not more than five years from the date of the act or omission that is alleged to have resulted in the injury to the plaintiff. If no action is commenced within that five year period because of fraud, deceipt or misleading representation, then the cause of action may be filed within two years of the date that the plaintiff reasonably should have disovered the injury despite the fraud or deception. For minors unter the age of eighteen, the statute of limitations is tolled until the age of majority, but the limitations period may not be extended by more than five years or more than one year past the age of majority, whichever occurs first.
Additional rules affecting malpractice litigation in the State of Oregon include:
Limits on Attorney Fees
In Oregon, in the event that punitive damages are awarded to a plaintiff, no more than twenty percent of the amount awarded as punitive damages may be paid to the attorney for the prevailing party.
Alternative Dispute Resolution
In Oregon, the parties to a malpractice case must participate in some form of alternative dispute resolution within two hundred and seventy days after the cause of action is filed, unless the parties settle or otherwise resolve the case within that two hundred and seventy day period, or all parties to the action agree in writing to waive dispute resolution. Acceptable forms of dispute resolution are arbitration, mediation, or a judicial settlement conference.
An apology law prevents a plaintiff from using an apologetic or concilatory statement made by a defendant as evidence of the defendant's liability. Oregon's apology law provides that in a medical malpractice case, no expression of regret or apology made by or on behalf of a person licensed by the Oregon Medical Board, or an institution, facility or other entity providing health care or employing that person, including an expression of regret or apology that is made in writing, orally or by conduct, may be admitted into evidence as an admission of liability. The health care provider may not be examined in any civil or administrative proceeding in relation to any such apology or statement of regret.
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.