Proving medical malpractice and filing suits in a timely manner

Many people who become ill go to a doctor for diagnosis and treatment. People trust their doctors to competently make the correct diagnosis and issue the correct treatment. However, recent studies have shown that proper diagnosis does not always occur, resulting in harmful consequences.

Data about medical diagnostic errors

The Huffington Post recently reported on data from the journal BMJ Quality and Safety, which showed that over the past 25 years, diagnostic errors led to more harm than medication or surgical mistakes. Diagnostic errors also resulted in the most payout of medical malpractice claims. Diagnostic errors occur when a doctor misses or delays a diagnosis.

The research for the study was done by researchers at Johns Hopkins University and is based on data from 350,706 medical malpractice claims that resulted in a payment to the plaintiff. Researchers found that of those paid claims, 28.6 percent of the claims were diagnostic errors that were likely to lead to death or disability to the patient.

The researchers at Johns Hopkins University estimate that, in the United States, as many as 80,000 to 160,000 people have suffered from injury or death due to diagnostic errors.

Diagnostic errors are not the only type of error with high occurrence rates. In fact, according to The Huffington Post, Everyday Health reported that another group of researchers from Johns Hopkins University also found that instances where surgical instruments are left in the patient's bodies also occur. The study reported that from 1990 to 2010, surgical tools were left inside of the patient more than 4,000 times each year.

The studies show that doctors do make mistakes that cause harm to patients. In many instances, in order for the harmed patient to be compensated for the doctor's wrongdoing, the patient must file a medical malpractice lawsuit.

Medical malpractice

One way to prove that medical malpractice occurred is to prove that the doctor was negligent. A doctor is negligent if he or she did not meet the required standard of care when treating a patient. To establish medical negligence, the plaintiff must prove the following:

  • There was a doctor/patient relationship that created a duty owed by the doctor to the plaintiff.
  • The doctor "deviated from the applicable standard of care", thus breaching the duty owed to the plaintiff.
  • The "deviation from the applicable standard of care" caused the plaintiff's injury.
  • There actually was injury caused to the plaintiff.

Even when the standard is met, there may be a sense of urgency in filing the suit.

Timeliness of medical malpractice suits

Recently, The Chattanoogan reported that the Tennessee Supreme Court ruled that a medical malpractice claim was filed too late and could not be heard in court. The plaintiffs filed a medical malpractice claim against a county hospital after the death of their son.

The couple provided the hospital with notice of the suit almost one year after the death of their son. They thought that serving notice at that time was allowed because, according to Tennessee law, plaintiffs in medical malpractice actions are required to notify defendants of the lawsuit at least 60 days prior to filing the suit. After the 60-day notice has been provided, the statute extends the deadline for filing the suit by 120 days.

The Supreme Court found that the plaintiffs filed the suit too late because even though they followed the statute, the county hospital is subject to the Governmental Tort Liability Act. The Act requires suits to be filed within one year if they are being filed against a government entity. Because they thought that they had 120 extra days, they filed suit 15 months after the death.

Since time is critical, someone who has been harmed by a doctor or any other health care professional should contact a medical malpractice personal injury lawyer who will provide timely and aggressive representation to help the injured receive compensation for the damage done.