Your Atlanta Medical Malpractice Case: The Basics
The doctor at Emory University Hospital thought you were suffering from influenza so he gave you a healthy dose of antibiotics. One long, miserable night of suffering later, your family has to rush you to the emergency room. The doctor mistakenly forgot to screen for food poisoning, and the antibiotics released the mother lode of toxins which wreaked havoc with your organs. It was touch and go for a couple days but now that you're feeling better you need to know what happens next. Here's a general guide to how a medical malpractice case in Atlanta work to help answer some questions you may have.
Georgia Time Limits
Medical malpractice lawsuits must be commenced within two years of the date of the injury-causing incident. If you were unable to discover the injury during that initial two year period of time, the time limit will be extended to account for the of time it would reasonably take to discover it. However, in cases where a health-care provider leaves a foreign object in a patient's body, they have only one year from the date of discovery to file suit. However, no medical malpractice action can be initiated more than five years after the incident (the only exception involves very young minors).
Doctors are expected perform medical procedures with a great degree of skill and professionalism; in the legal field, this expectation is called the standard of care. Generally, healthcare providers must recommend and perform treatments as a reasonably competent and skilled health care professional, with a similar background and in the same medical community, would have provided under the circumstances that led to the alleged malpractice. Examples of medical malpractice include:
- Misdiagnosis of, or failure to diagnose , a disease or medical condition;
- Failure to provide appropriate treatment for a medical condition;
- Unreasonable delay in treating a diagnosed medical condition.
Successful lawsuits often depend on an expert witness who can articulate the expected standard of care under the circumstances, and point out exactly how the healthcare provider's conduct fell below that standard. Furthermore, in Georgia most complaints must be accompanied by an affidavit from an expert stating that the facts justify a medical negligence claim.
If the patient passes away as a result of the malpractice, the patient's medical negligence action survives as a wrongful death lawsuit. In Georgia, the spouse has the initial right to pursue this lawsuit. If no spouse, then the right goes to the children, his or her parents, or to the executor of the deceased individual's estate.
Another type of lawsuit directed at medical professionals comes up when a doctor fails to obtain informed consent from the patient before treatment. Before any treatment can be performed, a physician must tell a patient all of the potential benefits, risks, and alternatives involved in any surgical procedure, medical procedure, or other course of treatment. They must also obtain the patient's consent to proceed. There are three general components to informed consent:
- A disclosure informing the patient all the risks, benefits and alternatives of the treatment;
- Comprehension of the disclosure by the patient, and;
- A voluntary (non-coerced) waiver or "release," executed by the patient.
If any of these components was lacking, the doctor could be liable under a battery theory, for an intentional, nonconsensual harmful or offensive contact.
Picking a Defendant
Clearly the negligent healthcare professional is a likely defendant in such a suit, but a plaintiff can also bring in the hospital where the defendant is employed under the "respondeat superior" doctrine, which provides that an employer is responsible for the tortious action of an employee acting within the scope of his or her employment.
A hospital can also be sued independently for what is called "corporate negligence." For example, the hospital may fail to maintain sanitary conditions, fail to screen employees for proper credentials, or improperly discharge a patient.
Last, but not least, some cases may involve a products liability lawsuit against a pharmaceutical company that created a medicine with unreasonably dangerous side effects that the patient was not made aware of, or against the company that designed or manufactured a defective medical device.
Tiny mistakes can cost you big time, so it could be a good idea to schedule a free consultation with an experienced medical malpractice or personal injury attorney. Lawyers in these fields almost universally work on a contingency fee basis, which means that instead of paying them up front they take a percentage of your ultimate recovery.
Make sure you read the fine print of the lawyer's fee arrangement because unlike most states, Georgia lawyers do not have an upper limit on the percent of your recovery they can take. Typical contingency fee agreements range from 25 to 35 percent, so be wary of anything significantly higher.
An award in a personal injury case is typically composed of various different types of damages which are available to injured patients. The first type is known as compensatory (or economic) damages. These damages compensate you for financial losses, such as medical costs and wages lost due to missed work. There is no limit to the amount of economic damages you may recover.
Non-economic damages, on the other hand, are more subjective because they are designed to compensate you for pain and suffering, disfigurement, scarring and loss of enjoyment of life. Georgia had a $350,000 upper limit on the amount of non-economic damages that may be awarded, but this law was ruled unconstitutional in 2010 by the Georgia Supreme Court. You may want to chat with a local attorney to determine the most recent state of the law.
The last type of damages is known as punitive damages. Punitive damages are used to punish a medical provider whose reckless actions caused a patient injury. In Georgia, punitive damages are allowed, but only in cases where there is clear and convincing evidence showing the healthcare provider's behavior included willful misconduct, malice, or fraud when treating the patient. In medical malpractice cases, punitive damages are limited to $250,000 and typically quite hard to prove.
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