General Concepts of Injury Law
What is “negligence”?
A person is negligent when he or she fails to do something an "ordinary reasonable person" would do or, alternatively, does something an “ordinary reasonable person” would not do in a particular situation, resulting in injury to another person.
The determination of whether a given person has met his/her "ordinary reasonable person" standard is often a matter that is resolved by a jury after presentation of evidence and argument at trial.
If negligence can be established from the facts, then in order to have a valid claim, that negligence must directly result in injury and damages to the wronged party.
What is “comparative negligence”?
Comparative negligence comes into play when it is contended that two or more parties failed to perform at the standard of the “ordinary reasonable person.” The Kansas comparative negligence statute is K.S.A. 60-258(a) and permits all parties who may have caused or contributed to an injury to be considered on a percentage basis and be responsible for that percent of the injury. Plaintiffs are responsible for that portion of fault caused by their own actions.
In a situation where each party has some degree of negligence in causing an accident, the responsibility to the other person(s) is reduced by the others' degree of negligence. For example suppose a jury decides that the driver going too fast in the fog was 60% responsible for the accident, while the driver without vehicle lights on is 40% responsible. If the driver who didn't have his lights on would have recovered $10,000, his recovery would be reduced to $6,000 because of his 40% contributory negligence. In Kansas, in order to recover at all, the plaintiff must not be more than 50% at fault.
How is the amount of damages suffered determined?
To bear responsibility for injury to others, your negligent action (or failure to act in certain situations) must be the cause of the injury to some other person.
If the first three elements of a tort (duty, breach, and causation) have been established, then it becomes a matter of determining the amount of damages suffered so the injured party can be compensated for his or her damages.
Some permissible “damages” under Kansas law are as follows:
1. Economic Loss
Expenses – All provable medical expenses such as past, present and future doctors’ fees, hospitalization costs, medical equipment and medications are recoverable. The cost of obtaining services provided by others who assist a person to return to the same or similar physical condition he or she was in prior to the negligent act or omission (i.e. rehabilitation therapy) are recoverable.
Lost Wages – Wages and earnings which would have been earned by the injured party but for the negligence of the tortfeasor. All provable past, present and future wage loss damages are recoverable.
2. Non-economic Loss
Pain & Suffering – All non-economic loss an injured party is caused to endure as a result of the negligence of the tortfeasor. Such damages include all past, present and future physical pain and suffering, mental anguish, disfigurement, emotional distress. All provable pain and suffering damages are recoverable.
3. Punitive Damages – Although rarely awarded in Kansas, under certain circumstances, reckless or irresponsible behavior from the tortfeasor may result in punitive damages awarded to deter others from acting in a similar manner. Punitive damages are considered extraordinary or “exemplary” damages, and are designed to “punish” reckless conduct rather than simply trying through monetary compensation to make the injured party whole again.
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.