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.
While most states limit the amount of money that a person injured by medical malpractice can recover as compensation for non-economic damages, caps on damages are prohibited by Wyoming's state constitution.
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. Wyoming instead applies principles of several liability, pursuant to which each defendant is liable for damages in proportion to the share of fault assigned to that defendant for the plaintiff's injuries.
The Collateral Source Rule
Under Wyoming'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 Wyoming, the statute of limitations for a medical malpractice action is two years from the date of injury or the reasonable discovery of the injury, except that the cause may be commenced two years from the date of discovery if the claimant can establish that the injury was not and could not have been reasonably discovered during the two year period following the injury. Minors must commence a medical malpractice claim within the standard limitations period or by their eighth birthday, whichever ends later.
Additional rules affecting malpractice litigation in the State of Wyoming include:
Limits on Attorney Fees
By court rule, Wyoming creates a presumption that contingent fees are reasonable where for recoveries not in excess of $1 million, the fee is not more than one third of the recovery if the suit is settled before or within thirty days of its being filed, and forty percent of the recovery thereafter. For cases involving a recovery in excess of $1 million, a thirty percent continency is presumed reasonable. A party who wants to challenge the reasonableness of their attorney fee may seek review through the Committee on Resolution of Fee Disputes of the Wyoming State Bar.
Alternative Dispute Resolution
Prior to the filing of a medical malpractice suit, unless the parties have agreed to submit the dispute to arbitration or unless the submission is waived by agreement of the parties, all medical malpractice cases must be submitted for review by the Wyoming medical review panel. The statute of limitations for the claim is tolled upon receipt of the claim by the director, and does not begin again until thirty days after the panel's final decision or seventy-five days after the panel's last hearing, whichever occurs sooner. The claim must state in reasonable detail the relevant dates and allegations of the conduct alleged to have constituted malpractice. The claimant must provide a release allowing the claims panel to access all of the claimant's medical records relevant to the claim. The respondent healthcare provider must answer the claim within sixty days after service of the claimaint's medical records release upon the panel. Within sixty days of receipt of the respondent's answer, the claimant must provide a signed statement from a qualified expert, describing the expert's belief that the claimant's injuries resulted from malpractice and the evidence that supports the expert's opinion.
The panel is comprised of two licensed healthcare providers, two licensed attorneys, and a layperson unanimously chosen by those four panelsts who is not an attorney, a healthcare provider, or an employee thereof. When feasible, the healthcare providers who serve as panel members are to share the profession or specialty of the respondent. When a claim is against two or more providers, claims are consolidated for mediation unless by stipulation of all of the parties or at the discretion of the panel. Mediation proceedings are informal, and the rules of evidence and most rules of administrative procedure do not apply. Following hearing the panel is to determine whether there is substantial evidence that the acts complained of occurred and that they constitute malpractice, and if there is a reasonable probability that the patient was injured as a result of the acts complained of. A final decision is to be issued within forty-five days of the conclusion of the hearing. The determination of the panel is not binding on the parties, and is not ordinarily admissible as evidence. The panel's report and any exhibits to the recport are admissible for purposes of impeachement in any subsequent trial, subject to the discretion of the trial court and the Wyoming rules of evidence.
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 Wyoming's apology law, no statement, affirmation, gesture or conduct expressing apology, sympathy, commiseration, condolence, compassion or a general sense of benevolence made by a health care provider or their employee to a patient, or to their relative or representative of the alleged victim, that relates to the discomfort, pain, suffering, injury or death of the patient as the result of the unanticipated outcome of medical care, are admissible in litigation or arbitration 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.