Medical Malpractice FAQs
What standards of conduct?
Oklahoma doctors undergo several years of education and training, starting with medical school and continuing through internships, where they are exposed to many different areas of medicine, and a residency, in which the doctor becomes trained in a particular field, such as surgery, internal medicine, neurology, etc. During training and residency, the doctor is exposed to the standards and guidelines that govern the practice of medicine. This exposure occurs through hands-on practice, observation, and text books. Even after the doctor is licensed and has completed training, his or her education continues through attending continuing education programs. These sources and others go into determining what doctors and lawyers call the "standard of care" for the practice of medicine. A breach of the "standard of care" constitutes negligence.
Can other healthcare professionals be held liable for medical malpractice?
Yes. Other healthcare professionals also commit negligence if they violate the standard of care. However, the standard of care for a nurse may (and typically does) differ from the standard of care for a doctor. That is because nurses undergo different education and training than doctors do and also have different responsibilities. Any healthcare professional can be negligent for violating the standard of care that applies to his or her particular profession, be it nursing, physician assistant, physical therapy, etc.
How do I know if I have a medical malpractice case?
Poor medical outcomes do not necessarily mean that you experienced medical malpractice. Even with the best of care, things can go wrong. Generally, to win a medical malpractice case, you must have expert medical testimony that no reasonable health care provider would have done what yours did. You must also prove through expert testimony that the negligence of your health care provider was a cause of injury or death. A doctor can be negligent, for example, and still may not be liable, if the injury or death was caused by some other factor.
Why do Oklahoma lawyers sometimes turn down malpractice cases?
There can be a number of reasons why an Oklahoma lawyer will not take a case, including, but not limited to:
- There is not a credible expert to say there has been malpractice or that any malpractice was a cause of the injury or death.
- The cost of bringing a case to trial exceeds what the case could reasonably be expected to return. Typically it is very expensive to obtain the medical experts necessary to even get the medical malpractice case into a courtroom.
- The severity of the injury is one of the most important considerations. A truly serious injury with long-term consequences, such as injuries during birth, a heart attack, stroke or permanent disability are more likely to bring a viable lawsuit than a minor, temporary injury.
What is "informed consent?"
When a physician is going to perform a procedure, he or she is required to advise the patient of the procedure that is going to be performed as well as all the possible consequences. This is referred to as "informed consent." If the physician does not do this, it could possibly lead to medical malpractice case. There are some instances where a physician is not required to obtain an informed consent, such as a case where the patient is unconscious or a family member cannot be reached in an emergency. More often then not Oklahoma attorneys will take these cases if the consequences of not being properly informed are great enough.
Can you sue for what could have happened?
While it may be upsetting to learn that a medical procedure may have resulted in a very undesirable outcome such as severe injury or even death, it’s not generally feasible to sue for what "might" have happened, particularly if there was no negligence.
Is a misdiagnosis malpractice?
Not necessarily. Medicine is not an exact science and errors in diagnosis are often made. Oklahoma law does not require physicians to be right all the time but rather that their actions meet the standard of care set out by state statutes, as well as what a reasonable physician would do in the same situation.
How can I find out if a physician has been sued for malpractice?
Check with the Oklahoma (or your state’s) medical licensing board to see if they have, and will release, information about the doctor.
Can I sue my doctor for releasing my records to my employer?
Possibly. Many employers can legally review their employees’ medical records covered by the company’s health plan, which sometimes may include hospital records.
What expenses are typically paid by a settlement for a medical malpractice case?
State statutes control what a malpractice settlement takes into consideration. The following are usually covered in Oklahoma:
- Medical expenses for treatment of the injury caused by the medical malpractice
- Compensation for pain and suffering
- Other financial damages and economic damages that the malpractice caused
Do most cases go to trial?
Malpractice claims tend to go to trial and are settled less often than most other cases, which also means they can take more time and cause more expenses.
What is a normal settlement amount?
There is no such thing as normal settlement amount in recovering damages from medical malpractice. Every injury and case is different. There are many nuances that determine a reasonable settlement amount, such as:
- Impact the injury has on future earning capacity
- How the jury perceives the injured party
- Impact the injury has on daily life
- The atmosphere in the geographic area concerning medical malpractice
Only an attorney can give you an idea of what type of settlement you might be entitled to.
What does "preponderance of evidence" mean?
Preponderance of evidence is evidence that is more convincing than the evidence that is offered in opposition. It is whatever is more probable than not.
What is "subrogation?"
Subrogation is a concept that allows someone who covers the cost of your injuries, such as an insurance company, to eventually recover those payments from the person determined legally liable for your injury.
What is "contributory negligence?"
Contributory negligence is an injured person’s failure to exercise due care, which contributed to the injury. An example of contributory negligence in a failure-to-diagnose case would be if a physician recommends that the patient undergo various tests for cancer and the patient neglects to follow through with the physician’s instructions, only to be diagnosed with cancer later.
What is the statute of limitations for a medical malpractice suit?
Statutes of limitations for medical malpractice cases are set by state law and generally range from one to seven years. In the state of Oklahoma, actions against health-care providers must be filed within 2 years of the date that the act giving rise to the injury occurred. In the case of a minor under 12, the minor’s parent or guardian must bring suit on behalf of the minor within seven years after the act giving rise to the injury occurred.
If I am in the military and injured due to negligence in a military hospital
can I file a claim?
No. Active duty military personnel cannot file claims for medical negligence against the United States, even if the negligence is not duty-related. This rule is known as the Feres doctrine from a United States Supreme Court decision many years ago.
Are cases involving children treated differently in court?
Yes. First, the statute of limitations is different for children than it is for adults as described above. Second, because children cannot legally settle a personal injury claim, all settlements involving children must be approved by the probate court.