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GENERAL CONCEPTS
 

General Concepts of Injury Law

MEDICAL MALPRACTICE

What is medical malpractice?
Medical malpractice is an act or omission by a doctor or health care provider which results in injury to a patient. A doctor or other health care provider has a duty to use the degree of learning and skill ordinarily possessed and used by members of that profession and under the circumstances and should use ordinary care and diligence. A violation of this duty is negligence.

Who can commit medical malpractice?
Generally speaking, under Kansas law, any of a particular type of “health care provider” having special relationships and duties to patients can commit malpractice, such as a medical doctor, osteopathic physician, dentist, chiropractor, nurse, or hospital.

How do I recover damages sustained due to medical malpractice?
The first inquiries help determine whether or not malpractice has been committed. Malpractice does not depend on “how nice” or “not nice” the professional was. What matters is what act or omission was done by the professional and whether a similar professional in the same situation would have done the same act or omission. Is there an injury, loss or damage as a result of the act or omission is the next question which must be answered affirmatively. Depending on your response to these (and similar) basic inquiries, there may have been actionable malpractice.

As lay persons without a medical education, most people are rarely in a position to know whether or not there was malpractice, and the professional who performed the service may be unwilling to tell you he or she is at fault (and may not even know). It is almost always necessary for the injured party’s attorney to hire a medical expert as a consultant or to offer testimony and to help determine whether or not there was medical malpractice.

What else can I do besides sue for malpractice?
State medical boards and licensing authorities attempt to regulate the practice of various classes of health care providers rendering service within the state. A medical professional must comply with the regulations established by the state in order to initially be licensed and thereafter to continue to be able to render medical services within the state. As part of the regulation of professional practices, these state agencies or organizations typically have review and disciplinary functions. As a consumer of health care services, you have a right to begin a formal review and complaint against a health care provider with these state regulatory agencies. Penalties and fines -- as well as the suspension or revocation of authority to render services in the state -- can be imposed by state agencies and organizations.

However, if you feel that a medical professional has committed malpractice, and you have been damaged, you should consult with an attorney. That can set the wheels in motion both to enable you to recover for the harm you were caused and to stop offending behavior by that and other professionals.

If a procedure was not successful, is that medical malpractice?
Medical malpractice does not occur every time medical treatment is not successful. Doctors are not guarantors of the services which they render. A bad outcome alone does not equal medical malpractice. A doctor is, however, required to have the necessary knowledge and experience to perform the services in question. Further, doctors must exercise the skill and care that others in the community use when dealing with similar treatments.

What about the need for “informed consent?”
Medical professionals must obtain your informed consent prior to rendering medical treatment.
"Informed consent" is an individual's agreement to allow medical treatment to be rendered based upon full disclosure of all of the facts necessary to make an intelligent decision. In order to provide informed consent, you must be able to understand what the proposed medical treatment entails, what procedures will be used, whether drugs or surgery will be utilized, what the various alternatives are, as well as the potential risks and side effects. Whether or not the consent was “informed consent” is based on an analysis of all available information -- you must be able to understand the information and then have the mental ability to weigh and consider this information as part of your decision-making process.

I signed the informed consent form before surgery. Did I give up my rights when I signed?
No. While the form may impose certain limits on your rights, signing a statement assuming the risks involved with a procedure does not let the doctor or hospital off the hook if they fail to perform according to acceptable levels of care.

Also, there are situations where the consent is invalid, as for example, if you were not informed of the risks involved with the procedure, were misled about the surgical procedures to be done, or there was incompetence in the performance of the surgery and consequent injury.

Is misdiagnosis malpractice?
No, not necessarily. Medicine is not an exact science; doctors are not required to be right every time they make a diagnosis. A misdiagnosis may be malpractice if the doctor fails to get a medical history, order the appropriate test for the illness, recognize the symptoms of the illness, or performs other diagnostic acts or omissions that a reasonably careful doctor in a similar situation would not have done. And yet, there is no basis for a malpractice claim if there is no injury, loss, or damage as a result of the misdiagnosis and consequent treatment, on the theory that you are no worse off than you were before. The alleged act of medical malpractice must cause actual damages, injury and loss.

What if I am just not satisfied with the results of my surgery?
Medical malpractice does not occur every time medical treatment is not successful. Not every medical treatment or procedure comes in with a guarantee that the doctor will successfully produce the results you want. A doctor is, however, required to have the necessary knowledge and experience to perform the surgery in question. And again, if the outcome of your surgery is a bad result compared to the outcome you would get from a reasonably careful doctor or surgeon in a similar situation, then your bad surgical result may in fact be medical malpractice. Consult with an attorney who can help you develop the medical evidence necessary to prove your case.

Can hospitals turn away patients?
Generally speaking, yes, but not when there is a need for emergency medical treatment or if a patient presents in active labor.

With non-emergency treatment, it can depend on whether the hospital is a public or private one. Private hospitals are not required to provide non-emergency medical treatment to people who cannot pay.

Hospitals generally cannot stop treating a patient once he or she is admitted. Similarly, treatment cannot be discontinued by a hospital for nonpayment without sufficient notice to the patient.

If you believe you have suffered serious injury as a result of the negligence or medical mistakes of any doctor, hospital or medical provider, please contact us to help you evaluate and prepare your case.