Res Ipsa Loquitor

“My wife had a minor surgery several weeks ago, but she developed an infection that nearly cost her life. Can I sue the hospital for malpractice?”

If your wife’s infection occurred during her surgery and there were no surgical mistakes that increased the risk of infection, then generally, the answer is no, your wife cannot sue. Infection following a surgery is considered a foreseeable risk of most procedures, and thus, your wife would have no case.

However, if the surgeon left something in your wife to cause her infection, like a surgical sponge, then the hospital and doctor would be liable under a legal theory named res ipsa loquitor. Basically res ipsa loquitor holds people accountable for actions that do not ordinarily occur in the absence of negligence; for actions that are in the total control of the surgeon and hospital; and for actions not due to any conduct of the injured party. Obviously, your wife was under anesthesia so she had nothing to do with anything involving the surgery. The surgeon and hospital were in complete control during the operation. Finally, leaving surgical tools, like a sponge, inside a patient would be considered negligent.

If the doctor leaves a surgical sponge inside the patient, a jury can infer negligence against the doctor and hospital without expert testimony and award damages to the plaintiff in a court case. But each case can be different and more details of the surgery would be necessary to give a better answer.

Pre-Action Discovery

“I believe my mother was mistreated in her nursing home before she passed away. I have tried to obtain my mother’s medical records to find out what happened, but the nursing home is giving me the run-around. Can I sue for wrongful death for my mother?”

Your instincts were absolutely correct when you tried to obtain your mother’s medical records. Unless you were at the nursing home full time and have a medical background, there is no way to really know what happened to your mother in the nursing home. The medical record is a very good place to start because the record usually contains clues about your mother’s physical condition before she passed away.  From those clues about her physical condition, you might be able to make inferences about what happened to her in the nursing home before she passed away.

If you are the fiduciary for your mother’s estate, you have an absolute right to her medical records.  If the nursing home will not give you a copy of her records upon presentation of a HIPPA conformed authorization and the fee for copying said records ($.75 per page is allowed by law, under PHL  17), then you can bring an action in Supreme Court for pre-action discovery under CPLR 3102(c).  Essentially you are asking a judge to make an order compelling the nursing home to release your mother’s records.  If the nursing home still does not release the records after you get a court order, then the nursing home is in contempt and the judge can start coercing the nursing home to turn over records. The judge has a number of options for parties in contempt starting with monetary penalties.

Once you get the medical record, unless you are in the medical field, you will have to hire a forensic medical expert to review the medical records to determine if your mother was mistreated in the nursing home.

National Vaccine Injury Compensation Program

“What is National Vaccine Injury Compensation Program?”

In order to minimize the exposure of drug companies to liability for personal injury suits, Congress enacted legislation to allow claimants to make direct claims against the United States government in Federal Court for compensation for injuries due to side effects caused by vaccines. In the 30 years since the program was initiated in 1989, there of been only 7,000 cases filed. Less than half of those cases resulted in compensation to victims. Total compensation over the 30 year span has been in excess of $4 billion.

The advantage to making this special Federal Court claim is the injured party has liitle in discovery and litigation costs relative to a product liability case. However, if the claim does not fit within one of the narrowly proscribed claims for vaccine side-effects listed in a table, then the injured party still has to prove many of the same elements that are necessary to win a product laibility case. Many attorneys would advise their clients that a product liability case in state court is easier to win than any type of claim in Federal Court because of the Daubert standard. (Daubert was a US Supreme Court case explaining the scientific standard for proof in claims brought in Federal Court, which is generally higher than the standard of proof in state court.) But each case would need to be evaluated on its merit.

Medical Malpractice Claims

“What is the difference between a medical malpractice law suit and a personal injury law suit?”

A medical malpractice case is a law suit against a doctor (or other health care provider) because the medical treatment rendered to a particular patient at a certain time deviated from acceptable standards of care for doctors (or other health care provider) in the area.

A personal injury suit is ANY lawsuit (medical practice, car accident, trip and fall accident, etc.) in which the injured party (the plaintiff) seeks damages (monetary award) for “personal injury,” also known as a claim for pain and suffering. Personal injuries are one element of damages sought. There can also be other types of damages in law suits brought by injured people, such as claims for medical bills, lost wages, and out-of-pocket expenses.

So all medical malpractice claims seek damages for personal injuries along with possibly claims for medical bills, lost wages and out of pocket expenses. But not all personal injury suits (suits for car accidents, trip and fall accidents, and medical malpractice) are medical malpractice suits.