I am attorney Ben Schwartz and today we have a special guest on our video. This is Mark Taneyhill. Mark is another attorney in the law firm. I asked him to join us today because Mark handles medical malpractice cases, medical negligence cases, in the state of Pennsylvania also in the state of Delaware. He’s admitted to practice in both jurisdictions and so I thought that maybe what we could do today is have Mark talk about some common frequently asked medical malpractice questions. Give us some information just so that folks out there can know more about this topic. It’s not a topic that I think a lot of people know about. I’m a personal injury lawyer. I’ve been handling personal injury claims for about 15 years and it’s very rare that I get medical malpractice questions. The vast majority of the cases or other types of cases, I think that within the legal community, it’s relatively rare for people to have a lot of information on. I can only imagine the outside of the legal community that the average man on the street has a full and comprehensive understanding of topics in legal issues pertaining to medical malpractice questions.
If you don’t mind I like to ask you some questions starting off with:
“What is medical malpractice?” Well you know rather than trying to define it; really what we’re talking about is a deviation from the general standard of care. What that really means is what would a reasonable doctor of done in like circumstances. That’s going to be specific to whatever the type of procedure is or the type of specialist that you have that is performing the care on the patient. It’s more than just there was a procedure, there was an outcome that you didn’t like, or that there were complications that weren’t expected. What happens in the practice of medicine and that doesn’t rise to the standard of negligence? Typically we’re going to have these types of claims. What we’re talking about are cases where the physician or the medical provider did something or did not do something that a provider, the regional provider would have done in the same circumstances. Essentially we’re talking about is you got to be able to prove that the doctor or whoever was treating the patient did something wrong as judged against what normally someone would do under those circumstances. I think that’s fair to say that’s accurate.
Can you give us some examples of what types of cases might be considered medical malpractice cases? Things like very extreme cases where patients going to have a limb amputated, surgery performed on a certain body part, the wrong, incorrect body part is amputated, procedures are done on a body part that wasn’t supposed to be done. Those would be pretty clear cases of medical negligence.
Give a specific example of what specifically you’re talking about. You’re going to have a situation where someone is going to have his or her left leg amputated below the knee. The surgeon goes in and amputates the right leg below the knee. Those are very clear cases where there’s not a whole lot of argument that this was negligence in that case. It could be less severe than that. The situation could be where surgery is going to be performed on one type of procedure for a patient because of what happens at the hospital. The procedure is done on the occasion that wasn’t supposed to be done on that particular patient. Those are cases that are usually pretty clear. You also have situations in a surgery where medical instruments, sponges, or things like that are left in a patient after the surgery is performed. Again that’s something that should never have happened. What kind of things, there are past cases where surgical implements have been left in a surgery site and it has been closed.
What types of things may have been left in a surgery site? The most common that you see are sponges during surgeries. There could be a number of different instruments from clamps, scalpels, scopes, and any number of things. There are so many different instruments that the surgeons need to use during those types of procedures. Any type of foreign body like that, that’s left in a patient after the surgery is performed again that’s going to rise to a level of the negligence claim that we’re talking about. Those are usually pretty clear cases.
What are other examples of situations that might be medical malpractice cases? You could have cases where a doctor fails to diagnose someone or there’s a missed diagnosis. For instance, you go into your family doctor. You could have a bad cough and the doctor sent you for a chest x-ray. Maybe you don’t hear back from the doctor’s office. You don’t find out the results of that chest x-ray. You continued to have that cough. It continues to progress and you end up going back to the doctor six months or a year later. They tell you, “oh we didn’t get back to you with those results”. “There was a spot on a chest x-ray, which needed to be checked out”. You go to an oncologist, you further evaluated for whether or not that’s a malignancy. Now by the time you do go to that specialist to be further evaluated you find out that there was a small spot that has now spread throughout your body. That would be an example of the failure to diagnose the case. It could also be the Doctor reads the diagnostic tests inaccurately. They see something that’s either not on there. They provide the wrong diagnosis regarding it. Due to that, it causes an injury to you related to that diagnosis or missed diagnosis.
Are there cases, either medical malpractice cases they don’t involve doctors. In other words, are their medical malpractice cases that involve chiropractors or physical therapists or other types of sort of ancillary medical providers? Absolutely, in any type of medical care that you’re receiving, whoever the provider is, whether it’s a chiropractor or physical therapist that you mentioned. That physical therapist or that chiropractor is going to be held to the same standard of care that a reasonable chiropractor would have done in that circumstance or what a reasonable physical therapist would have done in that circumstance.
If you were a chiropractor that preforms adjustments and they don’t take an X-ray, they failed to properly read an X-ray. Then due to the adjustments that they make the patient ends up being injured because of that. The worst-case scenario patient ends up being paralyzed due to what happened from the chiropractor. That’s absolutely a medical negligence case and that the standard of care that we’re looking for is whether the chiropractor did next was as reasonable as what another chiropractor would have done. An example of a physical therapist is your going through physical therapy following a surgery spinal fusion surgery or cervical fusion surgery. The physical therapist fails to properly understand the hardware that you have been placed in. You perform exercises or activities there at the physical therapist’s office that damages the hardware or the surgery, which was performed. That could also be a case where a therapist can be held to the standard of what a reasonable physical therapist would have done under those circumstances.
I want to shift gears a little bit and ask about; “How common are medical malpractice cases”? I mentioned when we started the video that I’ve been practicing personal injury law generally for quite a while. I rarely see medical malpractice cases. I want to know if you have any opinion about that. Well, the actual claims that you see are probably actually less common than you would think or what you may sometimes hear in the media. Again as I said it is using a situation where the patient has a negative outcome. It really has to be a case where the doctor or the medical care provider failed to do something or did something that another reasonable medical care provider would not have done in those circumstances.
In addition to that in order for us to evaluate and bring these types of claims as an attorney, I have to obtain medical records for the prospective client. Then once we have all those records of what occurred and the history of the patient, that has to go out to another doctor or specialist in that same field that the procedure was performed to have them review it for us. Tell us whether this is a deviation from the standard of care for that type of provider. To tell us if that provider actually did something wrong. That someone would not have done or didn’t do something a reasonable physician would have done under the circumstances would have done right.
Absolutely and these claims can be expensive. They can be expensive to bring these types of lawsuits because typically these cases can end up in litigation in which you’re going to fight about it for three years. You can spend a lot of time and a lot of money to go through this to try to bring your claim. There’s also balancing for when you consult an attorney regarding this as to whether or not the harm that you suffered due to the negligence of medical provider rises to a level that it makes sense to move forward this type of personal injury case. That’s not always the case. If you go to the podiatrist and he pulls your big toenail out and it gets infected. It caused you pain or and it’s sore for a couple of days, maybe that a reasonable podiatrist in that situation wouldn’t have pulled the toenail off. You shouldn’t have had an infection. You shouldn’t have had that week or so of pain, but does it make sense to bring that claimed in a setting. It may not just for practical reasons. The claims are less common than you would think. I think overall in the medical profession, doctors are conscientious. They’re trying to do what’s right. They’re working hard to take care of their patients this is the exception normally to the care that people will receive, not the rule.
Talk for a minute for us about statutes of limitations in medical malpractice cases. “What is a statute of limitations and how does it work”? Statute of limitations is just the time period in which he or she must bring a claim in order for it to have an actionable claim or whatever happened to you. If you’re past that time period you can be barred from bringing forward for your claim. What the statute of limitations is going to do in your case can depend on the jurisdiction, where it occurred, what state laws are going to apply to your case. That’s why it’s very important that if you feel you may have had something that happened with a physician or healthcare provider, it’s important to speak with an attorney and especially a personal injury attorney that handles these types of claims so that as soon as possible you want to get the process moving forward to know whether or not you have a claim. So that you have the time that you need to gather all those records, have it reviewed by another physician or healthcare provider. It’s very important that if you think that something’s happened or that you have a medical negligence claim that you contact an attorney as soon as possible.
Talk for a minute, I’m aware that there is a thing called the time of discovery rule that provides an exception to the statute of limitations. We can talk about that for a minute; “What it is”? “How it works”? It’s an interesting topic and that’s the other reason that you want to try to contact an attorney as soon as possible about these types of claims. There are certain types of injuries that you may have as we had talked about an instrument that was left in a patient’s body following surgery. Then you leave the surgery, you may not know for a period of time that it occurred in. The issues from that may not crop up until later. In which case, the time of discovery rule is an exception to the statute of limitations. Whereby it provides a way that if this injury was unknown to you or unknowable, then you have additional time to be able to bring your claim. It wouldn’t be fair to the injured party to be held to a time period where they didn’t know that they were actually injured. It’s a recourse at law that allows that person to potentially claim it more time to be able to determine whether or not they have a claim. For instance, I am going to give you a case that I’m aware of that happens to someone in my family. She had surgery and it was a surgery to remove a cyst. After the surgery, the surgical wound didn’t heal and eventually a year later it was determined that there was, I think, it was a swab that was left in the surgery site. At that point, she knew that the physician had left the material in the surgery site. During that one year period, she didn’t know that the doctor had done anything wrong.
Is that the type of thing that you’re talking about when you’re talking about the time of discovery rule that the time limit for bringing a claim runs from the time that you discovered that something was wrong that negligence occurred? Yeah, absolutely. I’m sorry to hear about something like that happening but, yes in that case then her statute of limitations is going to begin to run. Typically now it depends on more circumstances but it’s going to begin to run from when that injury would have been known to her or should have been known to her.
Is that something that depends on what state you’re in? Every state will have a different law.
That’s why it is important to contact a personal injury law firm to talk about the particular circumstances that you have.
Thanks very much, Mark. I appreciate you taking the time and talking to us about these issues pertaining to medical malpractice cases. This is Mark Taneyhill a personal injury attorney who handles medical malpractice cases in Pennsylvania and Delaware with our firm Schwartz & Schwartz.
Ben Schwartz is the Managing Partner of Schwartz & Schwartz, Attorneys at Law. If you are searching online for a personal injury attorney, please contact Ben about your case. Ben and the other attorneys in the firm represent people who have been injured in car accidents, tractor-trailer and bus accidents, motorcycle accidents, slip-and-fall accidents, and dog bites. We have offices in Havertown (suburban Philadelphia), PA, Wilmington, DE and Dover, Delaware. Give us a call and see if we can help you today!