Medical Malpractice Overview
What You Need to Know About Tort Reform
Investigating a Medical Malpractice
Compensation & Plaintiff’s Duties
Determining The Value of Your Case
What is Prejudgement Interest?
Plaintiff’s Duty to Mitigate Damages
Explaining Informed Consent
What we Expect from Doctors
Standard of Care Owed by a Doctor
Duty of Care Owed by a Nurse
Standard of Care in Nursing Homes
Determining if a Doctor-Patient Relationship Exists
How Much is my Medical Malpractice Case Worth?
How to Determine the Approximate Value of Your Medical Malpractice Case
When you suffer an injury due to the negligence and carelessness of a doctor or medical professional, the consequences can be catastrophic. Often their error results in you needing further medical procedures, numerous medications, and sometimes long term stays in the hospital. Consequently, the financial burden of being injured due to medical malpractice is often overwhelming and you will likely need to be reimbursed for your costs. Furthermore, many people who do not have insurance may be forced to wait for treatment until they can receive compensation for their injuries. Our Law Offices has vast knowledge in helping people like you and our attorneys are very experienced in handling these claims.
What Kinds of Injuries Have You Suffered?
The amount you should recover is determined by the extent of the injuries you have suffered. This requires adding up all of the medical costs that you have incurred. Medical costs may include:
Charges for the number of days you stayed in the hospital
The cost of medication you were administered while in the hospital
The cost of medication you were required to take after you were discharged from the hospital
Surgeries to correct the injury
X-rays and medical tests
Follow doctor’s appointments
All of these costs can quickly add up and be absolutely overwhelming and financially crippling. And these are not all of the costs that you may incur due to your injury. It is important to consult a qualified attorney who can help you determine the total cost of your medical malpractice injury. Our team of attorneys at Our Law Offices frequently handle medical malpractice claims and we are familiar with all of the intricate details in assessing total injury costs.
Has Your Injury Affected Your Ability to Work?
Many injuries result in the victim being unable to work. Sometimes this period may last just during the recovery process. In other instances, the victim is so badly injured that they are not able to return to their job following their recovery. With the assistance of a knowledgeable attorney you may be entitled to receive compensation for lost wages during your recovery period.
Additionally, some injuries are so extreme that the victim is not capable of returning to work. Back, neck, and brain injuries resulting from medical malpractice often result in the patient being permanently disabled and unable to work. As a result, you must calculate not only the amount of money you lost from not being able to work during your recovery; you must also calculate any future damages for lost future wages.
Asking for an Appropriate Amount is Crucial to the Success of Your Claim
It is very important that you ask for the appropriate amount of damages in your claim. If you ask for too much money, large corporations and companies will often refuse to negotiate and you have the potential to receive nothing. If you ask for too little in damages, you will likely not receive the amount that you are entitled to recover. Additionally, it is very likely you are not receiving the maximum amount that the defendant is willing to pay. Determining the perfect amount to ask for in your claim can be very complex and you should always consult an attorney before you file a claim for damages. The attorneys at Our Law Offices have over 20 years of experience handling medical malpractice claims. We are skilled in adding up all of your losses and identifying the right amount to ask for in your claim that will likely produce a successful outcome. To discuss your potential medical malpractice claim, contact Our Law Offices.
How Does Prejudgment Interest Work?
What is Prejudgment Interest and How Does it Work in a Medical Malpractice Case?
If you have been injured and have chosen to file a lawsuit in order to receive damages to compensate you for your loss there may be some monetary issues you are not aware of that benefit you. One of these is prejudgment interest. This is interest that will accrue on the amount of damages award from the time that your injury occurred to the time that the final judgment is entered. Prejudgment interest can be a difficult subject to understand because it can add to your legal award and the way in which it works is very complex. In order to better understand prejudgment interest, this article will analyze the ways in which prejudgment interest works, specifically in a medical malpractice lawsuit.
What is Prejudgment Interest?
As stated previously, prejudgment interest is an amount of interest that will be added to the judgment that you receive in your medical malpractice case in the event that your receive damages. At the end of your lawsuit when you receive a judgment they will add this amount onto what you are receiving. It begins to accumulate just like interest in any other situation from the time of the initial injury or loss you suffered until the dispute is resolved.
How is Prejudgment Interest Beneficial to the Legal System and my Claim?
Prejudgment interest is beneficial to you because it is adding a greater deal of money to the amount that you will inevitably receive. Therefore, you benefit personally in your own cause of action. Moreover, the accumulation of prejudgment interest can be troublesome to the defendant in the event that they end up being unsuccessful in defending themselves against the pending lawsuit. Therefore, it speeds up the process when it comes to reaching a resolution that is beneficial to both parties as neither the plaintiff nor the defendant usually likes to sit in stressful litigation and deal with the added obligations that trial brings about. However, it should be noted that in calculating prejudgment interest, trial court judges are given a great deal of discretion.
How Does Prejudgment Interest Work in Texas?
This kind of interest is recoverable as a matter of right when there is quantifiable money due to the plaintiff and it is deemed to be payable at some identifiable date prior to a judgment being reached. In Texas you should make a general prayer for relief to such prejudgment interest to the court. You may not have to make a specific request to receive this kind of interest if you are filing a claim that triggers some kind of statutory authorization for prejudgment interest. This is one of the many reasons why it is in your best interests to have an attorney.
If your lawsuit in medical malpractice does not allow prejudgment interest unless you indicate to the court that you wish to recover this type of financial award, then you may waive your right to this type of compensation. Furthermore, calculating the interest rate to calculate prejudgment interest by can be tricky as well if the litigation goes on for an extended period of time and the interest rates change. Therefore, under Texas law it has been established that the prejudgment interest rate should be equal to the post judgment interest rate that was in effect at the time the judgment was handed down from the court.
This all may sound like a different language to you. This is not a bad thing, because for all intents and purposes it truly is. This is a legal mechanism by which your recovery can be increased because of the different tools at your lawyer’s disposal. It is in your best interests to have a skilled attorney deal with your medical malpractice lawsuits and ensure that your right to be given prejudgment interest is preserved. The attorneys at Our Law Offices have been handling these kinds of cases for decades and are more than capable of handling yours. To discuss the particulars of your specific case, contact us.
Mitigating Damages in a Medical Malpractice Case
Your Responsibility to Take Action to Avoid Further Injury Following a Medical Malpractice Incident
When you are injured by some negligent act on the part of your healthcare provider you have a right to compensation. Your right for legal remedies is based on the concept that your physician had a duty to you, they breached that duty, and this breach caused you injury. However, you may be unaware that you also have a duty as the plaintiff besides proving your cause of action. You must make sure that you do not allow any injury or condition to become aggravated and worsen because of your own conduct. In legal terms this is referred to as ‘mitigating’ your damages.
As the plaintiff, you have a heavy burden in a medical malpractice lawsuit. The important thing to keep in mind is the fact that these healthcare providers that you will be filing suit against will be working diligently to perfect any defense to liability possible. They do not want to be forced to pay for your injuries and will use defenses such as stating that you as the plaintiff made your condition worse by failing to mitigate your damages. This would be considered an abuse of the legal system to get an unfair award of damages. This is why it is important that you have experienced and skilled attorneys fighting for you that can anticipate and negate any defenses the other side can formulate against you.
What Does it Mean to Mitigate Your Damages?
Mitigating your damages means that you need to take actions following your injury to avoid any further negative impacts on your health. This is referred to frequently as the avoidable consequences rule. As the plaintiff you have the duty to mitigate your damages through reasonable post-accident conduct. You cannot recover for any aggravation of damages that could have been avoided through the exercise of reasonable care after the legal wrong was committed by the defendant.
How Does the Avoidable Consequences Rule Impact Medical Malpractice Lawsuits?
The way in which the avoidable consequences rule interacts with medical malpractice can be illustrated through the example of when the plaintiff fails to obtain medical assistance. If you as the plaintiff fail to obtain medical assistance then your recovery will be limited in the amount of compensation they can get you. Nevertheless, even if opposing counsel attempts to claim that you aggravated the condition, with the right attorneys on your side these arguments can be defeated.
Did You Know?
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Defense counsel will likely attempt to assert that you as the plaintiff had a duty to mitigate your damages by submitting to surgery where the risk would be small and the surgery’s success would be reasonably probable. However, to determine what type of surgery or treatment would be ‘reasonable’ the court will compare the cost and benefit of such treatment. There are several factors that will be evaluated. The court will look to the risk, pain, expense, effort and probability of success. If it can be established that under the circumstance a reasonable person might decline to undergo surgical operation, then a failure to do so would not bar you from recovering full damages.
With the right legal team fighting for you, these factors can be utilized as tools to work in your favor. That is exactly what we can do for you at Our Law Offices. You have a right to be compensated and get what you deserve. However, taking these matters into your own hands may cause your lawsuit to falter under the pressure of these defenses. This is why it is absolutely to your benefit to retain attorneys that know how to handle medical malpractice cases and protect your theory of recovery against defeat. To discuss your case in greater detail, contact the attorneys at Our Law Offices.
Medical Procedure Liability and Informed Consent
Does Giving Informed Consent for a Surgery or Medical Procedure Limit the Liability of the Doctor or Hospital?
We’ve all been to the doctor at some point in our lives, whether it be for a yearly physical or for major surgery. Whenever a doctor requests to do something to you they must ask your permission, however their duty does not stop here. They are also required to inform you of what the surgery or test they wish to perform will consist of and any risks or side effects that are known to potentially occur as a result. It is then only after the patient is fully aware of the benefits of the surgery as well as the potential harm, that the patient can give what is referred to as informed consent. Informed consent cannot be obtained through any false or misleading information by the doctor. When an informed consent claim is made in Texas, the focus of the claim is whether a reasonable person would have elected to receive treatment in light of the associated risks. If a doctor does not receive informed consent, his performance of any operation on your person will constitute a civil battery.
What are All of the Requirements of Informed Consent?
A patient must have the capacity to make the decision to consent or not to consent.
The doctor/medical provider must divulge all the information on the tests, treatment, or operation in question, including all of the potential benefits and risks.
The patient must fully understand all relevant information.
The patient must voluntarily grant consent, without any pressure or duress.
What if I am Unable to Give Informed Consent?
Sometimes you are not able to give informed consent for a variety of reasons. These often occur when a patient is unconscious or suffering from other similar symptoms. In situations such as these there have been exceptions created to shield liability of doctors, these exceptions claim that the patient impliedly consents when they are unable to expressly consent. The most common exceptions are: a medical emergency where medical care is necessary immediately to prevent severe or irreparable harm, incompetence where an individual is incapable of giving consent for testing or treatment.
Am I the Only Person That Can Give Informed Consent for Myself?
Parents and legal guardians of a minor child are allowed to give informed consent for the child. However, the doctors of the patient have taken into consideration the wishes of the child in recent years. Especially an older child who is mentally competent to have a say in the medical decision process. The parent making such decisions still must act in reasonable manner when making these decisions. Courts have intervened in a few cases where parents denied consent to operate on a child when it was considered a medical necessity for such an operation to occur.
Adults can also have decision making powers given to a third party. When determining who has the power to make such decision you will first look to see if there was a power of attorney that was set out by an advance directive. If not then an individual’s spouse, children, or parents will give the consent for you in that order.
If you have been injured during a medical procedure and you do not believe adequate informed consent was given, contact Our Law Offices. We have more than 20 years of personal injury experience and will be able to help you gain the recovery that you deserve. To set up your free consultation please call us.
The Hippocratic Oath and a Dr’s Standard of Care
How Does the Hippocratic Oath Apply to a Doctor’s Duty or Standard of Care?
Most people have heard of the Hippocratic Oath that doctors take when they graduate from medical school. It is described as an oath that swears that, as doctors, they will not do any harm and act in the best interest of their patients. Many people may assume that the Hippocratic Oath is a legal standard that doctors must uphold. This article will discuss common misconceptions of the Hippocratic Oath and its effect in legal interpretation.
Breakdown of the Parts of the Hippocratic Oath
The Hippocratic Oath is an oath that is derived from ancient Greece that contains quite a bit of language that is no longer applicable. The effect of the oath is nowadays more ceremonial in nature and has no true legal effect that holds doctors to a certain higher standard of care. Today, the law has set out the standard of care that doctors are expected to provide when practicing medicine. The applicable parts of the oath are:
I will share knowledge gained with fellow medical professionals.
I will help the sick and not over medicate.
I will remember that there is art to medicine as well as science.
I will say that I don’t know or will seek the opinion of a colleague.
I will respect the privacy of my patients.
I will prevent disease whenever I can.
This is not the entire oath, but the basic point can be reached through what is provided. The oath contains no definition of the standard of care that is required to be provided to a patient. The actual oath is today treated as a goal for the practice of medicine rather than holding any legal significance.
The Standard of Care to Which Medical Professionals are Held
Each medical professional owes their patients a duty to act pursuant to a reasonable standard of care that would be provided by a reasonable physician in the same field under the same circumstances. The following example may better illustrate how reasonable standard of care is applied to medical situations: imagine an emergency room doctor that makes a decision to amputate someone’s foot. Not only will the doctor’s decision be looked upon from a reasonable emergency room doctor on whether it was the correct decision, but also in the same time restraints that the doctor was performing under when the decision was made. The reason for this standard is that a doctor cannot be expected to make the correct decision 100% of the time. The law does not want to hold doctors liable for every mistake they may make, however a doctor is expected to act as a reasonably prudent professional in his field at all times. This is why the standard is lowered from “100% right all the time” to acting such as a reasonable doctor would.
Changes in the Standard of Medical Care
There has been recent change in the courts definition of acting as a reasonable prudent doctor. The standard that has been traditionally applied to regular doctors is that of a reasonable prudent doctor in their region. Specialists, such as surgeons have always been held to a national standard of reasonable care. However, as medical education has become more standard across the nation, non-specialist doctors are being held to a national standard of care as well, leaving practices of regional medicine less used.
If a doctor has breached the standard of care that he owes to you, you need to be proactive and assert your rights. The attorneys at Our Law Offices are experienced in the practice of personal injury law and wish for you to join the thousands of clients that we have helped get the recovery that they deserved. Call to schedule your free consultation.
Duty of Care for Nurses
What are the Responsibilities and Duties Imposed on Nurses and Nursing Professionals?
When you are admitted to a hospital for medical treatment, there are standards imposed on the employees attending you that must be adhered to. These standards are not only imposed on your primary physician. They are also enforced on nurses and other hospital employees. When conduct happens to fall below these standards, there are penalties that must be imposed. This is especially the case when an injury results. If you have been injured by some negligent act by a nurse during your treatment, you have a legal right to be compensated for any damages that you have incurred.
Your cause of action for your personal injury will be in medical malpractice. Medical malpractice lawsuits are riddled with many procedural technicalities and heavy burdens of proof. This is why it is important that you speak to an attorney that knows these types of lawsuits and has experience with personal injury litigation.
What Source Determines a Nurse’s Duty of Care?
In Texas the Nursing Practice Act sets forth the regulations that govern nurses and their specific rules and duties. It contains a number of different standards that must be adhered to by nurses in their employment. Furthermore, it defines what would be considered to be unprofessional conduct. Therefore, this act is the guidepost by which to determine whether a nurse’s actions could be considered negligent so as to constitute a violation of their duties.
Can a Nurse be Liable for my Injuries in Medical Malpractice?
The simple answer is, yes. A hospital may be held liable for the injuries that arise from the negligent performance of a duty that the hospital owes directly to the patient. Moreover, a hospital also has the duty to use reasonable care in formulating the policies and procedures that govern the hospital’s medical staff and non-physician personnel. Just as the hospital has a duty, under the Nursing Practice Act there are criteria established that create duties for nurses as well.
What are Some Examples of Some of the Duties of Care for Nurses?
The nurse’s duty was actually established by the landmark case Lunsford v. Board of Nurse Examiners in 1983. This case established that when a nurse has known of, or should have had knowledge of a situation that could place a patient in danger of being harmed they have a duty to intervene. The rationale for this is because a nurse has sufficient knowledge based on their education and experience to be able to identify the minimum standards of care and when they are being violated. Therefore, they are charged with the duty of being cognizant of any dangerous situations that a patient may be in and should intervene. The common underlying theme of a nurse’s duty of care to their patients is to ensure their client’s safety and well-being.
Furthermore, there is a mechanism called “safe harbor peer review” that is available to all nurses that allows them to request a peer review committee determination. This is something that enables a nurse to notify an authority that they find some potential assignment to be dangerous. Essentially they believe this assignment will place a patient at harm and therefore taking such assignment would violate their duty to their patient.
If a nurse happens to violate their duties to their patients then they may be held in violation of the Nursing Practice Act or the board that governs their license-ship. Furthermore, a hospital may be found vicarious liable for the actions of their nurses if they injure their patients in violation of their duties. These are difficult medical malpractice claims and you need a lawyer that knows how to litigate these kinds of cases with ease. The attorneys at Our Law Offices have handled personal injury lawsuits for over two decades which has given them the skill and experience necessary to handle your medical malpractice case. To discuss your claim in further detail, please contact us.
Standard of Care Required of Nursing Homes
Laws and Duties Imposed on Nursing Home or Assisted Living Facility Employees in Texas
If you currently live in a nursing home or have a loved one that lives in a nursing home then you may be unaware that there are statewide laws that govern the standards of care imposed on these institutions. Nursing home institutions are regulated by the state of Texas and there is a requirement that every licensed nursing home should provide quality care in compliance with Texas statutory law. Furthermore, a nursing home is classified as a healthcare provider under the Texas Medical Liability Act. In Texas, if you suffer some kind of injury from the treatment provided by a health care provider then your recovery will be in a medical malpractice action. This means that nursing homes have two different sets of regulations that govern them and their ability to adhere to the standards imposed on them.
The Texas Medical Liability Act and the relevant portions of the Texas Health and Safety Code can be hard to digest without the assistance of someone familiar with this legislation. For the foregoing reasons, it is necessary that you have an attorney representing you in your potential cause of action. If you or a family member has suffered an injury in a nursing home, contact skilled personal injury attorneys like those at Our Law Offices to fight on your behalf.
What are the Duties Imposed on Nursing Homes?
Texas law states that a nursing home is under a duty to exercise whatever reasonable care is necessary to ensure a patient’s safety depending on his or her specific mental and physical conditions. The case Golden Villa Nursing Home Inc. vs. Smith established that there is no real general rule as to what standard would constitute reasonable care. Instead, you are to look to the specific factors of each different parties circumstances. Moreover, while medical treatment is in the hands of the physicians at nursing homes, they must provide some level of nursery home care outside of what is expected of the doctors.
What About Employees of Nursing Homes?
Considering the laws in Texas on nursing homes, they are typically considered to be under a duty to be extremely careful and particular when hiring employees to work at their facilities. There is a duty to supervise employees to make sure that sufficient care is being provided.
What Kinds of Claims May I Bring Against a Nursing Home?
There are several different claims that you may be able to bring against a nursing home, depending on the specific facts of your case. If the conduct that caused the injury was due to some violation of some ordinance or statute that nursing homes must abide by then you may have a claim in negligence. Furthermore, you may have a tort action for negligence against the nursing home, assuming that you are able to meet the necessary elements of a negligence claim. There may be a claim against the nursing home for vicarious liability for the actions of an employee of the nursing home that injures you. In that type of a claim you are holding the nursing home liable for the actions of their employee. In each of these different types of claims there are different elements that must be met in order for your claim to be successful.
For the reasons listed above, it is very important that you retain legal representation to litigate your claim against a nursing home. The fact that nursing homes are classified as health care providers on the Texas Medical Liability Act means that there are statutory elements to your claim as well as other governing laws. In order to ensure that no stone is left unturned, it is in your best interests to make sure you have an attorney that has handled claims like this in the past. The attorneys at Our Law Offices have been dealing with personal injury lawsuits for over two decades and are prepared to evaluate your case for you. To discuss your case, please contact us.
When Does a Doctor-Patient Relationship Exist?
How to Determine if a Doctor-Patient Relationship Existed in Your Case
Almost everyone has been to the doctor at some point in their life. From the time we are newborns until our ultimate death a doctor is a person that we often look at as a trustworthy individual. The relationship between a doctor and a patient is a special one; certain rules are set in place to establish when the relationship is created. These rules are set in place to protect doctors from potential liability from people that presume they are patients of the doctor.
Certain standards must be met before an individual can be considered the patient of a doctor. If you have been injured by a doctor or hurt as a result of the inaccurate advice that they may have given you, you may have a medical malpractice claim. In these situations you need an experienced attorney to assert your rights. The attorneys at Our Law Offices bring a wealth of knowledge in every aspect of the personal injury law field. We have a well-earned reputation in the legal community for getting positive results for our clients; we may be able to help you too.
What is Required to Form a Doctor-Patient Relationship?
A doctor-patient relationship is said to begin when a doctor accepts or renders aid to a patient. Although you may think this is a simple concept the opposite is true. Courts and creative attorneys have found various ways to interpret the terms.
The terms “accept” and “render aid”, making this a complex issue. While some people may believe that it begins when they visit a doctor, it actually starts before this. The courts have determined that a doctor-patient relationship exists when the physician has created some form of payment arrangement with the patient.
Doctors may give you medical advice even though you are not their patient; this does not create a doctor-patient relationship between you and the doctor. An example of medical advice being given without forming a doctor-patient relationship is if your friend or relative is a physician and you ask them for their medical opinion, they may give you advice and not be subject to the potential liability that a doctor-patient relationship holds.
Can I Sue for Medical Malpractice if a Doctor-Patient Relationship is Not Found to Have Existed?
In a word, no, you may not sue a doctor for medical malpractice. In order to have a viable medical malpractice suit a medical professional must have had a duty to provide you competent medical care. Doctors do not inherently have this duty with every individual they meet just because of their status as a doctor; they only have this duty for their patients. If a doctor-patient relationship never formed the doctor would owe you no duty and thus be unable to commit any medical practice action upon you.
Not all cases are treated the same and there is no one way to define the creation of a physician-patient relationship. We can help make your case if the creation of this relationship is called into question. Call us at to schedule your free consultation with one our attorneys. We have helped thousands of clients recover the damages that they deserve and we can help you too.