Attorney’s Guide to Medical Malpractice For South Carolina (SC) Lawyers and Plaintiffs

Medical and health care providers – primarily hospitals, surgeons, doctors, pharmacists, physicians, nurses and emergency medical technicians (“EMTs”) — are expected to offer us care and support during our most critical moments. The vast majority of medical and health care providers do offer excellent care that will help us to recover from a personal injury or medical condition. However, some providers fail to meet the requisite standard of care, and, under such circumstances, may be guilty of medical malpractice.

COMMON TYPES OF MEDICAL MALPRACTICE

Medical malpractice, commonly called “medmal” for short, generally occurs when a negligent, careless or reckless act, mistake, error, or omission by a doctor or other medical professional causes damage or harm to a patient. It has been estimated that almost 98,000 people die in hospitals in the United States each year, and that medication errors injure approximately 1.3 million people per year. Medical malpractice errors or negligence typically occur in the diagnosis or treatment of a patient, and may include, but are not limited to:

>Failure to treat
>Wrong treatment
>Delay in diagnosis
>Failure to diagnose
>Failure to rule out causes or conditions
>Misdiagnosis
>Failure to test
>Failure to obtain informed consent
>Surgical injury
>Wrong prescription of drugs
>Patient abandonment
>Use of defective medical products

A patient’s right to recover compensation for medical malpractice is generally governed by common law as well as statutes and regulations which have been promulgated to protect patients who have been subjected to medical malpractice or medical negligence. Medical malpractice suits are usually complex, time-consuming, expensive to litigate, dependent upon expert testimony, and vigorously defended by health care providers and their insurers.

ELEMENTS OF A MEDICAL MALPRACTICE OR MEDICAL NEGLIGENCE CLAIM

The medical malpractice personal injury victim is commonly referenced as a “plaintiff” and the person or entity that caused the harm is commonly referenced as a “defendant.” The South Carolina Supreme Court has set forth the elements of negligence with regard to a medical malpractice personal injury claim that a plaintiff has to prove as follows:

>A physician-patient relationship exists
>The generally recognized and accepted practices and procedures that would be followed by average, competent practitioners in the defendants’ field of medicine under the same or similar circumstances >That the defendant departed from the recognized and generally accepted standards
>The defendant’s departure from such generally recognized practices and procedures was the proximate cause of the plaintiff’s alleged injuries and damages

Thus, the medical malpractice lawyer and his client must present evidence to meet each of the foregoing elements at trial.

A physician commits malpractice by not exercising that degree of skill and learning that is ordinarily possessed and exercised by members of the profession in good standing acting in the same or similar circumstances. Durham v. Vinson, 360 S.C. 639 (2004). A plaintiff and his attorney must proffer expert testimony to prove both the required standard of care and the defendant’s failure to conform to that standard, unless the subject matter lies within the ambit of common knowledge so that no special learning is required to evaluate the conduct of the defendants.

INFORMED CONSENT CLAIM

A physician’s failure to obtain a patient’s “informed consent” with regard to a procedure or treatment is a form of medical malpractice. The term “informed consent” means that a physician must tell a patient all of the potential benefits, risks, and alternatives involved in any surgical procedure, diagnostic procedure, medical procedure, therapeutic procedure, or other course of treatment, and must obtain the patient’s written consent to proceed. Under Informed consent law, a physician who performs a diagnostic, therapeutic, or surgical procedure has a duty to disclose to a patient of sound mind, in the absence of an emergency that warrants immediate medical treatment, (1) the diagnosis, (2) the general nature of the contemplated procedure, (3) the material risks involved in the procedure, (4) the probability of success associated with the procedure, (5) the prognosis if the procedure is not out, and (6) the existence of any alternatives to the procedure. Thus, the plaintiff and his lawyer must present evidence of the physician’s breach of the foregoing elements of an informed consent claim in order to prevail at trial.

BREACH OF CONTRACT OR WARRANTY CLAIM

While most health care providers will not guarantee or warrant a particular outcome, there are times when they do, and a failure to successfully provide the outcome may give rise to a breach of contract or breach of warranty claim. These type cases usually involve plastic surgery wherein the patient is told that his or her post-surgery physical appearance will be the same as demonstrated on a computerized enhancement of the patient’s photograph. Thus, much like a business breach of contract claim, the plaintiff and his lawyer must present evidence of the physician’s breach of the stated warranty or guarantee by the preponderance of evidence in order to prevail at trial.

COMPENSATION IN MEDICAL MALPRACTICE CASES

In a medical malpractice personal injury lawsuit, a victim seeks compensation for the injury or injuries he or she has suffered. Compensation can include past and future medical expenses, disability or deformity, loss of income, emotional and mental anguish, loss of a spouse’s comfort and society, past and future pain and suffering, and an amount which would be necessary to make the person whole as respects a permanent personal injury. McNeil v. United States, 519 F.Supp. 283 (D.S.C. 1981). In cases where the defendant acted recklessly, maliciously or willfully, punitive damages may also be awarded. Punitive damages in medical malpractice lawsuits are intended to punish the responsible party and deter others from committing the same acts. Gamble v. Stevenson, 305 S.C. 104, 406 S.E.2d 350 (1991). If a wrongful death results from the medical malpractice, the decedent’s beneficiaries are entitled to compensation.

CAPS ON MEDICAL MALPRACTICE DAMAGES

For medical malpractice cases arising on or after July 1, 2005, which placed caps on non-economic damages a patient could recover from a liable defendant health care provider. S.C. Code § 15-32-220(a) limits the civil liability for non-economic damages of the health care provider to an amount not to exceed $350,000 for each claimant regardless of the number of separate causes of action on which the claim is based. S.C. Code § 15-32-220(a) provides an exception to the foregoing cap where the health care provider is proven to be grossly negligent, willful, wanton or reckless and that conduct was the proximate cause of the claimant’s non-economic damages. S.C. Code 15-32-220(b) provides that the $350,000 cap is limited to each claimant. S.C. Code 15-32-220(c) allows a claimant to stack his claim, and provides that up to three health care providers may be subject to the $350,000 cap per claimant, for a total of $1,050,000 per claimant.

The non-economic damage cap of $350,000 per medical entity or practice or person does not apply to economic damages and does not apply to punitive damages. Effective for medical malpractice cases arising on or after July 1, 2005, S.C. Code 15-32-230 further limits liability with regard to emergency obstetrical or emergency department situations. This section eliminates liability on behalf of any person providing emergency care or emergency obstetrical care to a person in immediate threat of death or an immediate threat of serious bodily injury while in an emergency room, obstetrical or surgical suite, unless the health care provider is proven to be grossly negligent. Other caps or limitations may be applicable to a medical malpractice case as well.

STATUTE OF LIMITATIONS

The plaintiff’s attorney must timely bring a medical malpractice suit within the required timeframes. There are time limits on bringing a personal injury lawsuit in the state of South Carolina known as statutes of limitations. See S.C. Code 15-3-530(5); 15-3-535. While a medical malpractice personal injury suit is generally subject to a three year statute of limitations, there may be exceptions depending on the circumstances, such as a medical malpractice case where the negligent conduct may be covered by a concept known as the “discovery rule.” See S.C. Code 15-3-545; Wilson v. Shannon, 299 S.C. 512, 386 S.E.2d 257 (Ct. App. 1989).

The statutes of limitations are different for negligence suits against a South Carolina state government agency pursuant to the South Carolina Tort Claims Act (“TCA”) and the federal government pursuant to the Federal Tort Claims Act (“FTCA”). Under the TCA, a suit must generally be filed within two years, unless a verified claim is filed within a year of the injury, then the statute of limitations is three years. S.C. Code § 15-78-110. Under the FTCA, an administrative tort claim must generally be presented to the subject federal agency within two years. Once a timely administrative tort claim has been filed, there is no statute of limitations on bringing a suit unless the federal agency denies the claim, in which case a suit must be brought in federal court within six months after the denial. 28 U.S.C. 1346(b), 1402, 2401, 2675.

NECESSITY OF AN EXPERT

South Carolina Code 15-79-125 requires, on medical malpractice cases arising on or after July 1, 2005, that before a medical malpractice suit can be filed, a plaintiff has to simultaneously file both a notice of intent to file suit and an affidavit of an expert witness subject to the affidavit requirements established in 15-36-100 in a county in which venue would be proper for filing or initiating the action. Statutory mediation of any such medical malpractice case is required as well, and, there are time limits for filing suit should the attempted mediation fail. As noted above, an expert’s testimony is necessary at trial to prove a breach of the standard of care and proximate cause of the injury, and the medical malpractice lawyer should retain a medical expert early on to assess the case and to be prepared to testify at trial.

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What Is Medical Malpractice?

In medical malpractice, a doctor or medical facility has failed to live up to its obligations, resulting in a patient’s injury. Medical malpractice is usually the result of medical negligence – a mistake that was unintentional on the part of the medical personnel.

Determining if malpractice has been committed during medical treatment depends on whether the medical personnel acted in a different way than most professionals would have acted in similar circumstances. For example, if a nurse administers a different medication to a patient than the one prescribed by the doctor, that action differs from what most nurses would have done.

Surgical malpractice is a very common type of case. A cardiac surgeon, for example, might operate on the wrong heart artery or forget to remove a surgical instrument from the patient’s body before stitching the incisions closed.

Not all medical malpractice cases are as clear-cut, however. The surgeon might make a split-second decision during a procedure that may or may not be construed as malpractice. Those kinds of cases are the ones that are most likely to end up in a courtroom.

The majority of medical malpractice lawsuits are settled out of court, however, which means that the doctor’s or medical facility’s malpractice insurance pays a sum of money called the “settlement” to the patient or patient’s family.

This process is not necessarily easy, so most people are advised to hire an attorney. Insurance companies do their best to keep the settlement amounts as low as possible. A lawyer is in a position to help patients prove the severity of the malpractice and negotiate a higher sum of money for the patient/client.

Lawyers generally work on “contingency” in these types of cases, which means they are only paid when and if a settlement is received. The lawyer then takes a percentage of the total settlement amount as payment for his or her services.

Different Types of Medical Malpractice

There are different kinds of malpractice cases that are a result of a variety of medical mistakes. Besides surgical errors, a few of these cases include:

Medical chart mistakes – In this case, a nurse or physician makes an inaccurate note on a medical chart that leads to more mistakes, such as the wrong medication being administered or an incorrect medical procedure being performed. This could also lead to a lack of proper medical treatment.

Improper prescriptions – A doctor might prescribe the wrong medication, or a pharmacist might fill a prescription with the wrong medication. A doctor may also fail to check what other medications a patient is taking, causing one medication to mix in a dangerous way with the other. Some pharmaceuticals are “contraindicated” for certain conditions. It might be hazardous, for example, for a heart patient to take a particular medication for an ulcer. This is why doctors need to know a patient’s medical history.

Anesthesia – These kinds of medical malpractice claims are usually made against an anesthesiologist. These professionals give patients medication to put them to sleep during an operation. The anesthesiologist usually remains in the operating room to monitor the patient for any signs that the anesthesia is causing problems or wearing off during the procedure, causing the patient to awaken too soon.

Delayed diagnosis – This is one of the most common types of non-surgical medical malpractice cases. If a doctor fails to determine that someone has a serious illness, that doctor might be sued. This is especially dire for cancer patients who need to detect the disease as early as possible. A wrong diagnosis can cause the cancer to spread before it has been detected, endangering the patient’s life.

Misdiagnosis – In this case, the physician diagnoses a patient as having a disease other than the correct condition. This can lead to unnecessary or incorrect surgery, as well as dangerous prescriptions. It can also cause the same injuries as delayed diagnosis.

Childbirth malpractice – Mistakes made during the birth of a child can result in permanent damage to the baby and/or the mother. These kinds of cases sometimes involve a lifetime of payments from a medical malpractice insurance company and can, therefore, be extraordinarily costly. If, for instance, a child is born with brain damage as a result of medical malpractice, the family might be awarded regular payments in order to care for that child throughout his or her life.

What Happens in a Medical Malpractice Case?

If someone believes they have suffered harm as a result of medical malpractice, they must file a lawsuit against the responsible parties. These parties might include an entire hospital or other medical facility, as well as a number of medical personnel. The patient becomes the “plaintiff” in the case, and it is the burden of the plaintiff to prove that there was “causation.” This means that the injuries are a direct result of the negligence of the alleged medical professionals (the “defendants.”)

Proving causation usually requires an investigation into the medical records and may require the assistance of objective experts who can evaluate the facts and offer an assessment.

The settlement money offered is often restricted to the amount of money lost as a result of the injuries. These losses include medical care costs and lost wages. They can also include “loss of consortium,” which is a loss of benefits of the injured patient’s spouse. Sometimes, money for “pain and suffering” is offered, which is a non-financial payout for the stress caused by the injuries.

Money for “punitive damages” is legal in some states, but this generally occurs only in situations where the negligence was extreme. In rare cases, a physician or medical facility is found to be guilty of gross negligence or even willful malpractice. When that happens, criminal charges may also be filed by the local authorities.

In examples of gross negligence, the health department might revoke a doctor’s medical license. This does not happen in most medical malpractice cases, however, since doctors are human and, therefore, all capable of making mistakes.

If the plaintiff and the defendant’s medical malpractice insurance company cannot come to an agreeable sum for the settlement, the case might go to trial. In that instance, a judge or a jury would decide the amount of money, if any, that the plaintiff/patient would be awarded for his or her injuries.

Is It Possible to Stay Healthy in This Day and Age

We are encompassed by bistro’s and fast food eateries that offer us an assortment of top notch suppers that are arranged truly rapidly. Yet, with that come the additional fats, salts, and sugars to give the supper its overwhelmingly tasty flavors. Burgers are splashed with sauces, drinks are immersed with sugar, and chips are excessively salted. With such tasty yet awful nourishment choices accessible to us, is it conceivable to remain solid nowadays?

For some it might be a test in light of the fact that there are more unfortunate alternatives accessible than sound ones. Around each corner there is a burger put or a pizza parlor. Every one offering snappy administration and various greasy sustenance choices on their menu. It is anything but a terrible thing to have fast food now and again, for example, once per week or fortnightly. It is the point at which you try too hard and eat it day by day that bigly affects your wellbeing. All things considered, your body isn’t made of handled nourishments. Your body is a characteristic being that requires normal fuel to survive and flourish. That implies it requires organic product, vegetables, proteins and minerals as fuel. Prepared sustenances tend to conflict with your body. It likewise influences your stomach related framework to work harder to separate the prepared fixings.

Handled nourishment costs amazingly not as much as more beneficial sustenance which is, not astonishing, why numerous individuals pick fast food. You get more dinner for your buck and for individuals who live on a tight spending this may be the main kind of sustenance that they can bear. It is unexpected in light of the fact that you would imagine that the regular choice would cost less and the handled choice, which is man-made, would cost more. Notwithstanding, the inverse is valid and this outcomes in an unhealthier country since it is value that is considered over wellbeing.

There are approaches to remain solid and spare cash, yet that implies you may need to do it without anyone else’s help. For instance, you could put resources into providing food gear that makes sound choices. You could get your own particular juice extractor and make 100% organic product squeeze in your own home. Or on the other hand you could search for a blender that can mix natural product to make delectable smoothies. You could make a bunch of smoothies and stop it. Every day you can remove one glass from the ice chest and take it with you to work. It is an incredible other option to the sugary gas drinks in addition to it is loaded with vitamins.

On the off chance that you take the time and figured, you can live soundly these days.

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Visit the gardens: Gardens in Dubai are considered as the major tourist spot with the refreshing oasis that takes you to enjoy the beauty in a pleasant way. Gardens, parks and rainforests are the places to see the diverse flora and fauna that sink you in delight. A perfect morning in Dubai in the company of colorful flowers and plants is the most liked by the nature lovers.
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Gold Souk: Gold Souk in Dubai is the perfect place to explore the jewelry in latest designs. All types of ornaments including earrings, necklace, bracelets, rings and more are available at the affordable prices. Visit the market to purchase the jewelry and do window shopping that gives a pleasant experience.
Dubai Mall: Dubai mall is the major visiting place that features the textile stores, restaurant, kids’ club and a theater. Visit Sega republic, Ice rink and kidzania where child-centered activities are performed that the most liked by the kids. Unlimited fun and entertainment at the Dubai mall along with shopping and dining to enjoy the trip at the best.