Doctors and healthcare professionals are held to a high standard as virtually every resident of our state depends on them to maintain their health, and resultantly their happiness. If a licensed medical provider acted negligently and your family has subsequently suffered, whether because of a wrongful death, birth defect, failure to properly diagnose and treat an ailment or illness or any similar situation, we want to help. One of our firm’s associate attorneys, George L. Phillips, M.D., has been a practicing medical doctor since 1973. This medical expertise gives our firm a unique skill set when it comes to representing the interests of medical malpractice claimants.
1. What is Medical Malpractice?
Medical malpractice is the failure of a medical provider to perform within a reasonable degree of care and skill.
There are many ways that malpractice can occur, ranging from failure to diagnose or failure to take action, to taking the wrong action. It can also include the improper administration of medication or pharmacy mistakes. It can even include failing to properly supervise a patient, resulting in the patient falling or otherwise sustaining injury.
The medical provider may be a medical doctor (“MD”), a Doctor of Osteopathic Medicine (“D.O.”), dentist (“DDS”), a nurse (“RN”), or any other licensed practicing care provider. Likewise, hospitals and nursing facilities may also be liable for malpractice.
There are number of specialized challenges in medical malpractice actions. Here are some things to consider.
2. Must Prove the Existence of a Duty
One of the other critical elements of a medical malpractice action is the question of the existence of a physician-patient relationship. Stated differently, to bring an action, the medical provider must have a specific obligation to the injured party. This is particularly important in situations when a resident or a doctor in training commits malpractice, and a patient has had limited or no contact with the supervising physician. In other words, if a nurse or doctor not assigned to a patient injures the patient, the plaintiff must establish the liability against each responsible party.
3. Not All Bad Outcomes Are Malpractice
Not all bad outcomes are malpractice. Depending on the circumstances, it can be difficult to determine if malpractice in fact occurred. As with any injury case, a plaintiff (the injured party) must show that the injury was caused by the wrongdoing of the medical provider.
4. Special Requirement: The Need to Obtain an Expert Affidavit
To initiate a medical malpractice action, one must have an expert affidavit. This is required by law. (O.C.G.A. § 9-11-9.1). The affidavit has to specifically state that the doctor or medical professional committed medical malpractice by providing medical care in a manner below the standard of care. The person who signs the affidavit must be in the precise profession and subspecialty as the defendant. In other words, if an orthopedic physician is the defendant, then only an orthopedic physician can draft the affidavit. Also, the signer of the affidavit must have been in practice for three of the past five years.
There is significant expense to filing a medical malpractice suit, and it takes time to prepare the case for filing. Doctor’s charge anywhere between $300 and $800 dollars per hour to review these cases. Doctors practicing within the state are often unwilling to testify against fellow doctors, thus requiring experts to travel from neighboring states. When you add all the expenses together, the costs to bring a medical malpractice case are significantly higher than a typical injury case.
5. Special Problems with the Statue of Limitation
Medical malpractice cases also pose special problems with regards to the statute of limitations, or the requirement when a lawsuit must be filed. The general rule for medical malpractice is that the claim must be brought within two years of the wrongful act. (O.C.G.A. § 9-3-7).
However, there are special exceptions. For example, if the injury is to a child under the age of five, the general rule is that the child has up to and until the age of seven to bring such a suit. (O.C.G.A. § 9-3-73(b)). Likewise, the statute of limitations can be extended when a foreign object is found in a patient’s body. In such circumstances, the patient has a one-year “discovery rule” in which to bring suit. (O.C.G.A. § 9-3-72). There is even some case law that suggests the statute of limitations can be tolled as a result of fraud in changing or altering the medical records.