Articles Posted in Medical Malpractice

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justice-scales-gavel-fb.jpegChoosing a good lawyer to help you with a case, such as wrongful death, contract dispute, employment termination; asset forfeiture, and excessive force, can be very difficult.

Many blog posts advise you to make sure that (1) you feel comfortable with the lawyer you choose and that (2) the lawyer you choose has sound experience and understanding in the area you need representation in. While all that is true, there is one area that also demonstrates the quality of representation you will be obtaining to handle your case: your lawyer’s willingness and ability to handle an appeal of your case in front of a higher court.

Foremost, you may not read a lot of blog posts that talk about handling an appeal of your case in front of higher courts, because that means something may have went wrong with your case in the lower court. But here’s the reality: when you are going up against cities, school districts; law enforcement officials; public officials; big corporations; and hospitals–whether you win or lose at the lower court (trial court), one party is going to appeal, or threaten to appeal the loss, to the higher court (Appeals Court).

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med image.jpgToday we would like to briefly discuss some of the steps you can take to avoid medical errors, in general. Although we help victims of medical errors seek justice and compensation, the best solution is to be informed, so you can avoid ever needing an attorney due to a tragic experience caused by medical error.

Medical errors can leave you or a loved one with severe physical injuries and emotional pain and suffering. As you know, medical errors can happen in a variety of places such as hospitals, clinics, out patient surgery centers, doctors’ offices, nursing homes, pharmacies and patient homes. On this blog, we have written about prescription errors, physician errors, nursing errors, and dental errors, to name a few. And these errors typically involve medicines, surgeries, diagnosis, and lab reports. Now we would like to discuss a few steps you can take to help avoid medical errors.

Many medical errors occur when doctors and their patients do not communicate effectively. In fact a recent study supported by the Agency for Healthcare Research and Quality found that doctors need to help their patients make informed decisions. Patients who are uninformed will logically be more susceptible to making errors regrading their medical care. So what can you do:

1. Be involved in your healthcare treatment– This could be the single most important thing you can do: participate, be an active partaker in all decisions that affect your health. Research shows that being active in your health care treatment leads to better results.

2. Make sure that you inform your doctor about all medications you are taking, including herbal remedies, vitamins, and over-the-counter drugs.

3. Make sure your doctor knows about any allergies or adverse reactions you have had to certain medications. This will help avoid prescription errors, doctors giving you the wrong medication.

4. When your doctor writes you a prescription, make sure you read it. Too many times, we pass off illegible prescriptions as “doctor talk.” You must ensure that you read the prescription given to you and that you understand it. Think about it: if you can’t read your doctor’s handwriting, there is a good chance, your pharmacist may not be able to read it either.

5. When you receive your medication from your pharmacist, double check, by asking if the medicine you are being given is indeed the medicine your doctor prescribed. The last thing you want is the wrong medication.

6. Read the label on your medication before you leave your doctor’s office or the pharmacy. If you don’t understand how to take your medication, ask the pharmacist or your doctor.

7. Ask for written information about the side effects that your medication may cause.

8. Regarding hospitals, you should consider choosing a hospital that has treated many patients affected by your same illness. You should also consider asking anyone who comes in direct contact with you, to wash his or her hands (bacteria infection can cause serious illness).

9. When you are discharged from a hospital, ask the doctor to explain your treatment plan.

10. How new is the doctor who is treating you? (Regardless of whether he or she is an emergency room doctor or in-patient doctor.)

We’ve come across a recent article that talks about how “greenhorn” doctors (“newbies”) have casued a serious spike in “fatal medication errors” throughout the United States. A recent study found that in counties with “teaching” hospitals, fatalities due to medication errors spiked each July, the same month that new doctors begin their residency.

Regrettably, even after taking some of the above-mentioned precautions and more, people will still be the victims of medical error. If you are one of those unfortunate people, call Williams Oinonen LLC today, because we will represent your case with zeal and ethics, with a view towards doing what’s best for you, always.
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nursing home.jpgIdeally, long-term health care facilities such as nursing homes will provide your loved one with long-term assisted living that respects their dignity. Georgia law recognizes three types of long-term health care facilities: personal care homes; skilled nursing facilities; and intermediate care homes. Some are privately owned, while others are state-owned. Some receive Medicare/Medicaid funding. And some care for the elderly or children or those who suffer from severe mental and physical challenges. Unfortunately, as the above-mentioned incident illustrates, regardless of who owns the home, or what type of long-term health facility it is, many times your loved one is mistreated (institutionally abused), a reality that really enrages and hurts both the abused person and those who love and care about him or her.

Recognizing an area of needed involvement, the Georgia legislature enacted a bill of rights for residents of long-term health care facilities (O.C.G.A. § 31-8-100). These rights include the right to receive care and treatment, and services, adequate and appropriate for your loved one’s condition; the right to choose amongst different forms of treatment; the right to refuse treamenent; the right to request a different doctor; the right to participate in the care and treatment plan developed for you or your loved one; the right to privacy; and the right to only be restrained in extremely limited circumstances, amongst others.

The object and purpose of Georgia’s patient bill of rights is to ensure respect for the dignity and self determination of each person living in a long-term health care facility. Additionally, because the legislature recognized the special circumstances in which these vulnerable people find themselves, and their potential to be abused and neglected, Georgia law allows you or a legal guardian to sue for damages for any violation of the Bill of Rights. Also, you should know that you may bring a suit, without exhausting administrative remedies.

Institutional abuse comes in many forms. Be on the look out for signs of mistreatment such as an unexplained or unexpected death of a patient; a serious injury such as broken bones; unexplained sores, welts and bruises; infections; unusual weight loss or weight gain; extreme dehydration; choking/gagging; and illnesses such as chronic aspiration/aspiration pneumonia (the elderly are particularly susceptible to this); and poor personal hygiene. A good lawyer will understand not only how to spot abuse but also how to uncover abuse through records request, testimony and other avenues.

Another reason you need a good lawyer to deal with nursing home abuse is the fact that there are so many laws and causes of action which apply to this situation. For example, and as stated, most long-term health care facilities receive federal and state funding, so Medicare/Medicaid regulations will apply. However, although Georgia law provides a private cause of action, many applicable federal laws such as 42 U.S.C. § 1395 do not. But the fact that a federal law does not provide a private cause of action does not mean that the standards established by those regulations cannot be used to demonstrate that a long-term heath care facility violated a standard of care it owed to your loved one.

Furthermore, you may have several different causes of action (legal claims) against the long-term health care facility. For example, you may have a professional negligence claim. This typically involves negligent conduct of a nurse or medical care provider. When a medical provider is responsible for injuring you or a loved one, hospital’s may be liable for those inujuries under the doctrine of respondeat superior, which means the employer of the negligent nurse/physician/medical provider is held liable. This type of claim is classified as a medical malpractice claim; that means that a host of procedural and substantive issues are involved. If your lawyer fails to follow “particular” procedural rules, your claim could be thrown out of court, forever.

Or, you may have an ordinary negligence claim, which typically does not involve an expert opinion or the tricky rules associated with professional negligence (malpractice) claims. Or, you may have a premises liability claim or a breach of contract claim or a class action claim. As you can read, a good lawyer is necessary to properly apply the facts of your case to all the applicable Georgia and federal laws and regulations, to ascertain which claim(s) you may have, and of those claims, which ones provide you with the best opportunity to maximize your recovery.

Ultimately, the outcome of you case will depend on many variables.
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doctors.jpg “I was injured by a doctor and I need to find a lawyer” or “I was injured by the hospital and I need to find a lawyer,” are now scenarios where you have the constitutional right to seek fair and full recovery for pain and suffering.

Today was a wonderful day for the citizens of Georgia. The Georgia Supreme Court abolished the $350,000 cap that the Georgia legislature placed on medical malpractice cases. The Supreme Court ruled in Atlanta Oculoplastic Surgery, P.C. v. Nestlehutt, that the law, which limited the amount of money a patient injured by a doctor or hospital’s negligence could recover, was unconstitutional.

Prior to the Georgia Supreme Court ruling, it didn’t matter if the doctor had cut off the wrong arm and leg of a patient, or even killed you due to medical negligence—$350,000 was the most you could recover for your pain and suffering. While someone with minor injuries (a minor misdiagnosis for example) wasn’t severely affected by this cap, this law hurt those who were severely injured the most. The Georgia Supreme Court case ruled on today provides a good example of the devastating affect the cap had on gravely injured people.

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Hospital.jpgThis article, briefly, deals with an important issue in the context of injuries suffered at a hospital due to medical negligence. The question is simple: is your case a medical malpractice case or a case of ordinary negligence on behalf of the hospital? The answer may be extremely complex and requires a keen attorney in this field. The distinction is significant because it will determine whether a significant portion of your compensation, for your injuries, will be restricted to a medical malpractice “cap.” In Georgia, there exist a “cap” on recovery in medical malpractice cases. The Georgia Legislature unfortunately implemented “tort reform” legislation which harmed patients by placing a $350,000 cap (ceiling) on non economic damages (injuries) that anyone receives due to medical malpractice. That means, in Georgia, if you are a victim of medical malpractice, the compensation that you receive for your pain and suffering that cannot be proven by recorded data such as medical bills, rehabilitation, loss wages, and so forth, will be severely limited.

Currently, medical malpractice “caps” are being challenged. But until this cap is overruled or modified, you will need an attorney who can, if possible, manuever around the medical malpractice claim (cap), to give you a stronger chance at higher compensation for your injuries.

In Georgia, “simply because an alleged injury occurs in a hospital setting, a suit to recovery for that injury is not necessarily a medical malpractice action.” For example, if a hospital employee commits a negligent act that injures you, the fact that the employee such as a registered nurse has expert medical credentials does not, by itself, mean that your case is a medical malpractice case and thus subject to the above-mentioned $350,000 cap. One of the determining factors is whether the negligent act required expert medical “judgment.” It’s complicated but one thing is for sure: the unique facts of your situation, as applied to Georgia law, must be scrutinized by a knowledgeable attorney to determine whether your case may be a case of ordinary negligence, instead of medical malpractice. For example, was your injury caused by the failure of a hospital employee to carry out a physician’s instructions or some other administrative or clerical act? Or perhaps the hospital had policies and procedures that were not complied with or failed to implement polices and procedures that comply with established law. Or perhaps the medical equipment that caused your injury was inadequate: in Georgia, hospitals have a duty to provide equipment reasonable suited for its intended uses.

Basically, all the above-mentioned issues fundamentally challenge the adequacy of the services and facilites provided to you rather than challenge the expert medical judgment of a hospital employee. As stated, this area of Georgia law can be very tricky. Your lawyer must understand these distinctions, and more, to effectively represent you.

You should also consider that the characterization of your law suit as a medical malpractice claim or as an ordinary negligence claim means a lot with respect to the procedural requirements that your attorney must navigate through, in order to avoid having your case thrown out of court. The law has made medical malpractice claims tough from the start. For example, by law, if you do file a medical malpractice claim and your attorney fails to attach an expert affidavit to your complaint, then, your complaint is voidable, not void. That means, if the defense team notices that your attorney failed to comply with the law, then they may move to have your case thrown out of court. If your case is thrown out, then you will most likely be forever barred from filing the same medical malpractice complaint. But there are exceptions, especially if the defense team failed to notice the missing affidavit upon answering your complaint. Again, the rules are tricky and tedious.
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Pharamcy.jpgThroughout the country, prescription misfills injure and sometimes kill hundreds of people, every year. As pharmacies become busier, the likelihood of pharmacy error increases. In 1998, Georgia took action to combat this problem. The Georgia Legislature strengthened laws and regulations regarding pharmacy conduct. Nevertheless, many people throughout Georgia continue to receive the wrong medication due to pharmacy error. Once you or a loved one has become a victim of pharmacy error, the question becomes: how do I maximize my recovery for the injuries I have suffered? The answer is not as simple as you may think.

In Georgia, each pharmacist has an obligation to ensure that every prescription given to you is accurate. That means that the pharmacist must review the prescription (with a few minor exceptions). The pharmacist is also responsible for all decisions regarding your prescription that require “professional judgment.” For example, if you were to ask about a recent change in the color of your medication or about how your medication may interact with a current medication you are taking, the pharmacist–not the technical assistant–is responsible for answering these questions.

Furthermore, many physicians write your prescription in what seems like another language. Regardless, the fact that a prescription seems illegible is not an excuse for giving the wrong medication. By law, the pharmacist must call the prescribing physician to verify what your prescription is!

But merely receiving the wrong medication will not solely determine your recovery. You must be injured, and your injury must be provable, because the extent of your injury (for example medical bills, rehabilitation, and loss wages) will play a signiifcant role in your recovery process. Unfortunately, your recovery will also depend on another important factor: Were you at fault? And if so, to what degree was your fault?

Our experience has demonstrated that maximizing a victims recovery in prescription-error cases inevitably involves what Georgia law refers to as comparative fault–the extent of your fault in taking the wrong medication. For example, a few questions in the minds of insurance adjusters and probably jurors may be: how long have you been taking the medication you were supposed to receive? If you have been taking a particular medication for, say, 5 years, and your medication is a small red pill, then, when the pharmacist made an error by giving you a big orange pill: why did you take it? Didn’t the color warn you of a potential problem? That sounds unfair and it is; you did not make the mistake. But the harsh reality is that Georgia law permits insurance companies and juries to take into consideration the extent of your so-called “fault,” when deciding what compensation will be given to you for your injuries.

Lastly, in order to maximize your recovery, you need a lawyer who understands punitive damages, which is an amount of money given to you, as a way of punishing the wrong doer (in this case, the pharmacy) to deter future, similiar conduct. Punitive damages are not easy to recover. In fact, to recover punitive damages in Georgia, proving mere negligence or even gross negligence is not enough. That means that merely giving you the wrong medication will not help maximize your recovery, at trial or during negotiations. In the context of pharmacy error, your lawyer will most likely have to prove a complete “want of care” on the part of the pharmacy. This is tough. But a lawyer with pharmacy-error experience and strong legal skills definitely increases your chances of maximizing your recovery. Ultimately, everything will depend on an in-depth understanding of how the facts and evidence of your case apply to Georgia law.
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Here is a very interesting video that discusses the Atlanta Oculoplastic Surgery v. Nestlehutt case about to be decided by the Georgia Supreme Court, which challenges the current Georgia cap on medical malpractice at $350,000 as unconstitutional.

This case illustrates the incredible injustice of limiting patients who are victimized or killed by medical malpractice of a fair and full recovery to pay for their injuries or death due to medical negligence.

Hopefully the Georgia Supreme Court will decide in favor of patients rather than the giant propaganda machine put out by the insurance companies concerning medical malpractice–a deceptive agenda that pushes profits over human lives.

Limiting caps on valid medical malpractice claims, where patients have been severely killed or injured due to medical negligence is both a gross injustice and patently unconstitutional. The 14th Amendment of our United States Constitution states: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law.”

We hope and pray for a good outcome for Mrs. Nestlehutt and all the other present and future Georgians who are victims of serious injury or death due to medical negligence.
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