The last thing you remember you were commuting home west on 64, just like any other day. But you wake up in a daze with what feels like the worst hangover in the history of mankind. Your family tells you that you were in a car accident and suffered a concussion, and have been resting at a local St. Louis hospital for the past three days. A few days after discharge your headache is only getting worse. A checkup reveals a subdural hematoma that the hospital staff missed, and now the surgeon wants to drill holes into your skull to relieve pressure. As if an accident wasn't bad enough, now you have to worry about the costs of the procedure with no idea of when you'll be able to return to work. Fortunately, victims of medical malpractice have recourse in the form of a personal injury lawsuit. But before you can pursue your claim, you need lawyer-speak translated into plain English, which is why FindLaw has prepared this guide to your St. Louis medical malpractice lawsuit.
Medical malpractice lawsuits usually point out negligent acts by a healthcare professional which resulted in injury. Negligence governs injuries that were accidentally, as opposed to intentionally, inflicted, and can include a doctor's failure to diagnose the patient correctly, an unreasonable delay in treatment, or improperly treating the patient.
Proving medical negligence is a two-step process. First, you must demonstrate how a reasonably competent doctor should have acted under the circumstances. This imaginary reasonable doctor's conduct is referred to as the standard of care. Generally, doctors must recommend and perform treatments in the same way 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. Second, you must point out exactly how your doctor's conduct fell short of this standard.
Since judges and jurors alike have limited knowledge of medical procedures, an expert witness in the applicable medical field is often one of the keys to success. The expert will analyze a case for negligent action, provide testimony as to the applicable standard of care and detail how the doctor failed to meet this expected standard of conduct. You may also wish to consult with an experienced personal injury attorney, who typically work on a contingency fee basis.
If someone punches you in the face you can sue them for battery. However, if you consent to being punched in the face, maybe because you are an aspiring UFC fighter, you give up your chance at recovery. Similarly, a patient must voluntarily and knowingly consent to a procedure (except in emergency circumstances) before a doctor can perform the treatment, or else the patient can sue the doctor for battery.
Knowingly is the key word here, because without full knowledge of the risks and alternatives to the treatment, Missouri courts have found a patient's consent irrelevant. For a patient to give informed consent, three elements must be met:
Statute of Limitations
St. Louis plaintiffs generally have two years to bring their lawsuit under the Missouri statute of limitations. This time limit applies to informed consent cases too. However, for cases where a foreign object was left inside a patient, the patient has two years from the day he or she discovers (or reasonably should have discovered), the object's presence. Also, minor patient's have until his or her 20th birthday to initiate the lawsuit. Finally, all cases must be brought within ten years of the injury causing incident.
Along with doctors, there are numerous other people or entities that may be considered a "professional health-care provider" under Missouri's medical malpractice statute. These include surgeons, nurses, physician's assistants, dentists, pharmacists, pathologists, toxicologists, pharmacologists, technicians, nursing homes, hospitals, medical practices, urgent care clinics, emergency rooms, and others.
Also, you can choose to sue the hospital that employed the health-care provider under the common law doctrine of "respondeat superior," which allows employers to be held responsible for the negligent actions of an employee acting within the scope of his or her employment.
Finally, the hospital can be sued independently for corporate negligence. For example, if the hospital fails to maintain sanitary conditions, fails to screen employees for proper credentials, or improperly discharges a patient, they may be held liable.
Filing a Lawsuit
Filing a lawsuit is as easy as drafting a complaint, which is a brief explanation of the basis of your lawsuit.
You can file your lawsuit at the 22nd Circuit Court, located at 10 N. Tucker Blvd., which has unlimited jurisdiction over civil cases. If you lawsuit is worth $5,000 or less, you may consider filing in the small claims division. Read this thorough guide to Missouri small claims first.
Successful plaintiffs recover monetary awards called damages, which come in two types. Economic damages reflect any unfair financial burdens placed upon the plaintiff resulting from the malpractice, such as medical bills or lost income from inability to work. There's no upper limit to the amount of economic damages you may recover.
Non-economic damages are designed to compensate patients for the pain and suffering they were forced to endure as a result of the malpractice. Juries consider loss of enjoyment of life, fear and anxiety, sleeplessness, scarring and disfigurement. For years Missouri's cap for non-economic damages in medical malpractice cases was firmly set at $350,000. However, in 2012 the Missouri Supreme Court ruled that the damages cap was an unconstitutional violation of the right to a jury trial, so now St. Louis plaintiffs may recover unlimited non-economic damages.
Contact a qualified attorney.