The fact that medical procedures, medication, or therapy are entirely risk-free is simply not true. The medical community heavily relies on establishing an informed consent for their patients by choosing a course of treatment where the potential benefits outweigh potential risks. It also relies on providing the best care possible for all patients. Medical mistakes are a strong fact and medical malpractice unfortunately does occur. The question found being raised time and again is exactly how is malpractice defined and when is a case against your physician, surgeon, or healthcare team warranted?
Medical Malpractice is a complex issue, the lines defining it are blurred between innovation, best practice and standard protocol. Some cases are clearer cut than others, where an obvious errors have been made (for instance, the amputation of the wrong arm), or if a physician has repeatedly prescribed inappropriate and harmful medications to their patient. There are also instances where malpractice suits have resulted from using “off-label” hardware or medications or failure to diagnose an infection or complications resulting from a procedure.
What Medical Malpractice is not.
Times occur when a patient wishes to file a malpractice suit because an infection happened while they were in the hospital, or they may have unwanted scarring from surgery. These types of cases are hard to drill down to Medical Malpractice as there are many factors involved in developing an infection. It comes down to how an individual’s body responds to procedures and treatments. Unless there is clear proof that hygiene protocols were not followed, or that aftercare protocol was not met, these types of claims are unlikely to be successful.
A report from Johns Hopkins states that every week in the United States, 20 patients undergo the wrong operation, 20 have the wrong part of their body operated on, and 39 patients have foreign objects left inside them after surgery. These are just a few of the approximately 80,000 surgical errors that happened between 1990 and 2010. These mistakes only account for just a fraction of the $1.3 billion in medical malpractice suits brought during this 20 year period.
Legal Definition of Medical Malpractice
The legal definition of medical malpractice is “professional negligence by act or omission by a health care provider in which the treatment provided falls below the accepted standard of practice in the medical community and causes injury or death to the patient.” It is the duty of the patient bringing the lawsuit to prove that the actions of the medical practitioner caused the injury or harm and that it would not have occurred in the absence of such negligence.
Determining the Damages Awarded
A patient’s dissatisfaction with the outcome of the procedure is not enough to have a successful medical malpractice lawsuit. The award given to a patient in a successful suit will usually be sufficient to recoup the costs they have incurred due to injury or harm, and reasonable coverage of anticipated costs, such as loss of earnings and livelihood, additional treatment costs, mobility aids and home modifications, and also psychological costs such as for ongoing anxiety and post-traumatic stress.
Virginia has a statute that places a limit or “cap” on the amount of compensation a plaintiff can receive in a medical malpractice case, regardless of the plaintiff’s specific claimed losses.
Virginia’s cap applies to all varieties of damages in a medical malpractice case. Unlike most states, Virginia’s medical malpractice damages cap sets out a detailed and gradual year-by-year raising of the total damages limit. Here’s a look at the current state of the cap and the planned increases in coming years:
- For cases arising from July 1, 2013, through June 30, 2014: $2.10 million.
- For cases arising from July 1, 2014, through June 30, 2015: $2.15 million.
- For cases arising from July 1, 2015, through June 30, 2016: $2.20 million.
- For cases arising from July 1, 2016, through June 30, 2017: $2.25 million.
The cap is currently set to stop increasing in 2031, when the limit will be $3 million. Virginia Code section 8.01-581.15.
The Parrish Law Firm medical malpractice attorney works with northern Virginia citizens who have suffered from the delayed diagnosis of cancer and are looking for fair compensation for their suffering. Contact us today for a free case consultation, or call us at 703-906-4229.
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A representative of the Parrish Law Firm, PLLC researched and wrote this article with Mr. Parrish’s consent. If you have any questions regarding the legal implications of what you have just read, please send us your question by clicking here so we can have our attorney review it.