Requisites of actionable doctor malpractice

If you are a victim of medical or doctor malpractice and you intend to file a medical lawsuit, the first thing you need to do is seek the help of medical lawyers or medical attorneys.

Your medical lawyer or medical attorney will study your case and determine whether or not your claims have merits. All these will depend on your circumstances, the facts surrounding the case and your state law.

State laws govern the viability of causes of action for medical or doctor malpractice. The laws vary in terms of time limits to bring suit (known as Medical Malpractice Statute of Limitations), qualifications of "expert" witnesses, cognizable theories of liability, and proper party defendants/proper party plaintiffs. Notwithstanding these differences, there are common requisites for all cases.

Competent medical lawyers or attorneys will tell you that before any physician can be held liable for doctor malpractice, he or she must owe a duty to patients. Otherwise his or her competency in performing that duty cannot be subject to scrutiny.

According to US jurisprudence a person is not bound to assist injured individuals in the absence of a special relationship with them, for instance doctor-patient or attorney-client relationship.

A doctor dining in a restaurant is not duty-bound to come forward and assist a fellow customer suffering a heart attack.

If the doctor merely continues with his meal and does nothing to help, the ailing person would have no cause of action for doctor malpractice against him, notwithstanding their harm.

However, please take note that once the doctor decides to assist the ailing customer, he or she becomes liable for any injury that results from any negligence during that assistance.

Once the requisite doctor-patient relationship is established, the doctor owes to the patient the duty to render care and treatment with that degree of skill, care, and diligence as possessed by or expected of a reasonably competent physician under the same or similar circumstances.

The "circumstances" include the area of medicine in which the physician practices, the customary or accepted practices of other physicians in the area (the "locality rule"), the level of equipment and facilities available at the time and in that locality, and the exigent circumstances, if any, surrounding the treatment or medical service rendered.

The requisite degree of skill and expertise under the circumstances is established by "expert testimony" from other practicing physicians who share the same or similar skill, training, certification, and experience as the allegedly negligent physician.

Finally, a doctor who has been negligent may not be the only defendant in a subsequent lawsuit. A hospital that has retained the doctor on its staff may be vicariously liable for the doctor's negligence under a theory of "respondeat superior" (let the master answer) that often holds an employer liable for the negligence of its employees.

Your doctor's liability carries with it vicarious liability. Ask medical lawyers or medical attorneys about it; they will gladly explain it to you in more detail.

More often, the doctor has "staff privileges" at the hospital, and the hospital will attempt to prove the limited role it plays in directing or supervising the doctor's work.

Also, a lot of physicians belong to private medical practices, such as limited partnerships or limited liability companies, that also may be vicariously liable for the negligence of their member doctors.

However, a doctor is generally liable for any negligence on the part of his assistants and staff in carrying out his orders or caring for his patients. Likewise, an attending physician is generally liable for any negligence on the part of interns and medical students under the physician's guidance.

Nevada has one year Statute of Limitations

A lot of people erroneously believe that the two-year medical malpractice statute of limitations is in effect in Nevada. Most of these people therefore unwittingly allow their cases to expire.

By initiative petition, the state of Nevada changed the medical malpractice statute of limitations from two years to one year.

The statute will begin to run the moment the medical of doctor malpractice is discovered or should have been discovered.

The outer extreme of the new medical malpractice statute of limitations law in Nevada requires medical lawsuits to be filed within three years from the date of the doctor malpractice, regardless of the discovery date.

What this all means is that victims of doctor malpractice and wrongful death due to doctor malpractice must figure out pretty quickly what has happened to them, cut short their grieving and go through all the necessary legal and medical requirements in order to file timely and meritorious medical lawsuits within one year.

One of the greatest roadblocks of all to filing timely medical lawsuits is finding a medical expert who is in the same field as the doctor who committed the malpractice.

That medical expert witness must state embody his opinion in a written affidavit attached to the legal Complaint that the malpractice did in fact happen.

This involves a thorough research of the medical records, which are often hard for surviving family members to assemble from the various medical providers in the aftermath of great pain and loss that accompanies any injury or illness.

To add to the victims' burden, medical experts can be expensive. However, when seen from the expert's point of view, his task entails a lot of time and analysis and oftentimes a lot of courage to come forward and state his expert opinion.

Historically it was said that the medical community was engaged in a "conspiracy of silence" in which many doctors refused to come forward in the face of even the most obvious medical or doctor malpractice.

Often those that came forward faced the possibility of being ostracized or discredited in their tight knit communities.

However, recently there has been a noticeable and refreshing trend for ethical and concerned doctors to come forward and report malpractice, as they are required to do by many state codes.

This seems to be the result of a new attitude that embodies the belief that the medical community benefits from some degree of self policing and housecleaning.

In the long run insurance rates go down, the quality of medical care goes up and the resultant pride and trust in the medical community are greatly enhanced.

To sum it up, please bear in mind that Nevada's medical malpractice statute of limitations is only one year.

Important facts about Erb's palsy and doctor malpractice

If you believe that your child acquired Erb’s palsy because of medical or doctor malpractice, please see an Erb’s palsy lawyer immediately. Your Erb’s palsy lawyer or medical lawyer is the best person to talk to if you believe you have a case against an obstetrician or doctor for causing injury to your baby.

IMPORTANT: There is a legal time limit, called Medical Malpractice Statute of Limitations, within which you can file a claim for medical or doctor malpractice. Generally, beyond this time limit, you can no longer bring an action against any obstetrician or physician for doctor malpractice.

Circumstances wherein medical negligence or doctor malpractice has resulted in Erb's palsy or other brachial plexus injuries:

1. Failure to obtain a prior obstetrical history of the child's mother. For this purpose, a proper medical history should include history of diabetes, large babies as well as difficult deliveries involving problems similar to but not limited to shoulder dystocia;
2. Failure to check for and properly manage diabetes during pregnancy;
3. Failure to check for and appropriately manage the mother's excessive weight gain;
4. Failure during the third trimester to appropriately evaluate fetal size by ultrasound;
5. Failure to timely deliver a post-dates baby;
6. Failure to assign appropriately trained and qualified personnel to manage the delivery;
7. Failure to offer, in the setting of multiple risk factors, the option of cesarean section;
8. Failure to properly manage shoulder dystocia;
9. Application of fundal pressure (pressing the abdomen just below the belly button), which can actually worsen shoulder dystocia;
10. Excessive force or traction applied on the head or neck during delivery;
11. Improper or inappropriate use of forceps; and
12. Improper or inappropriate use of vacuum extractors.

It’s been found that a lot of cases involving brachial plexus injury that occur during childbirth are preventable. Obstetricians know or are supposed to know the risk factors that can increase the likelihood that a child will be born with a brachial plexus injury. Therefore the key to preventing a child from being born with this type of disability is identification and appropriate management of these risk factors.

Medical malpractice statute of limitations

If you believe that you are a victim of medical or doctor malpractice, then you need to know that there is a time limit, called the Medical Malpractice Statute of Limitations, within which to file a doctor malpractice lawsuit or complaint.

Here is a list of medical malpractice statute of limitations. This list is intended only as rough guide and is not comprehensive.

Keep in mind that there are exceptions to medical malpractice statute of limitations as well as other time periods that apply to particular cases.

To know your rights and what options are available to you under the law, and how much time you have left to file a medical lawsuit, you must consult a medical lawyer or medical attorney without delay.

Also, in many states, there exist special rules as well as exceptions for medical or doctor malpractice cases. Here are a few examples:

• In many states minors can have the medical malpractice statute of limitations stopped or “tolled” until they have reached the age of majority.
• In many states, the medical malpractice statute of limitations can be tolled for incapacity.
• Usually a provision exists in the statute that does not start the medical malpractice statute of limitations running until the victim knew or “should have known” about the medical or doctor malpractice.
• Sometimes doctor malpractice is difficult to find in a timely manner as in cases where hidden surgical instruments or “foreign objects” are involved. In cases like these, special rules apply for doctor malpractice.

In case of death from medical malpractice, a lot of states have “wrongful death” statutes governing the time limit for filing a medical lawsuit.

Statutes of repose can also place absolute time limits on these exceptions.

Almost all states have these rules and exceptions.

Therefore you should not simply rely on the general rule, but should consult a medical lawyer or medical attorney as regards specific rules and exceptions in your state governing medical or doctor malpractice statutes of limitations.

ALA - 2 years medical malpractice statute of limitations. Ala. Code § 6-5-482.

ARK - 2 years medical malpractice statute of limitations. Ark. Code Ann. § 16-114-203.

CA - California - 1 year medical malpractice statute of limitations. Cal. Civ. Proc. Code § 340.5.

CT - Connecticut - 2 years medical malpractice statute of limitations. Conn. Gen. Stat. Ann. § 52-584.

FL - 2 years medical malpractice statute of limitations. Fla. Stat. Ann. § 95.11(4)(b).

GA -2 year statute of limitations. Ga. Code Ann. § 9-3-71.

ILL -2 years medical malpractice statute of limitations. 735 Ill. Comp. Stat. Ann. § 5/13-212.

IND - 2 years medical malpractice statute of limitations. Code Ann. § 34-18-7-1.

LA - 1 year medical malpractice statute of limitations. La. Rev. Stat. Ann. § 9:5628.

MD - 5 years from the negligence or 3 years from discovery, whichever is earlier. Md. Code Ann., Cts. & Jud. Proc. § 5-109.

MA - Massachusetts - 3 years medical malpractice statute of limitations. Mass. Ann. Laws ch. 260, § 4.

MICH - 2 medical malpractice statute of limitations. Laws Ann. §§ 600.5805(5) and 600.5838a.

MN - 2 years medical malpractice statute of limitations. Ann. § 541.07.

MISSISSIPPI - 2 years medical malpractice statute of limitations. Miss. Code Ann. § 15-1-36.

MO - 2 years medical malpractice statute of limitations. Mo. Ann. Stat. § 516.105.

NH - 2 years. statute for med mal, N.H. Rev. Stat. Ann. § 507-C:4, seems to conflict with the statute of limitations for personal injury of 3 years N.H. Rev. Stat. Ann. § 508:4. You should consult a New Hampshire Medical Attorney to determine the accurate time limit.

NJ - New Jersey - 2 years medical malpractice statute of limitations. N.J. Stat. Ann. § 2A:14-2; N.J. Stat. Ann. § 2A:14-21; N.J. Stat. Ann. § 2A:31-3.

NY - New York - 2 1/2 years medical malpractice statute of limitations. N.Y. C.P.L.R. § 214a.

NC - North Carolina - 3 yrs medical malpractice statute of limitations. N.C. Gen. Stat. §§ 1-15 and 1-52(16)

OH - OHIO - 1 year medical malpractice statute of limitations. Ohio Rev. Code Ann. § 2305.11(B)(1).

PA - Pennsylvania - 2 years medical malpractice statute of limitations. 42 Pa. Cons. Stat. Ann. § 5524.

RI - 3 years medical malpractice statute of limitations. R.I. Gen. Laws §§ 9-1-14.1 and 10-7-2 (1997).

SC - 3 years medical malpractice statute of limitations. S.C. Code Ann. § 15-3-545.

TN - 1 year medical malpractice statute of limitations. Tenn. Code Ann. § 29-26-116.

TX - 2 years medical malpractice statute of limitations. Tex. Rev. Civ. Stat. Ann. art. 4590i, § 10.01.

VA - Virginia - 2 years medical malpractice statute of limitations. Va. Code Ann. § 8.01-243.

W. VA. - 2 years medical malpractice statute of limitations. W. Va. Code § 55-7B-4.

WI - 3 years medical malpractice statute of limitations. Wis. Stat. Ann. § 893.55(1).