Medical Malpractice

When you are injured, you trust that medical professionals will help you heal. But, what if they don’t? What if - instead - they do something that makes your situation worse? When an injury or death occurs as the result of a healthcare provider’s mistake, we call that medical malpractice.

What is medical malpractice?

Medical malpractice is defined as any act or omission by a physician during treatment of a patient that deviates from accepted norms of practice in the medical community and causes an injury to the patient.

Importantly, there must be negligence for a bad medical outcome to be considered malpractice.

For example, if a doctor does everything correctly during a kidney transplant and your body rejects the organ, they wouldn’t be guilty of medical malpractice. This is because they followed the accepted norms and practices, and it is legally and socially accepted that medical treatments aren’t always 100% effective.

On the other hand, if a doctor leaves a tool in your body during surgery and sews you back up, that would be medical malpractice. It is clearly not a common practice to leave tools in a patient's body, and while the doctor didn’t do this intentionally, they did deviate from the typical practices of a surgeon.

How do I know if I have a valid claim for medical malpractice?

This question is difficult to answer, and validity is determined on a case-by-case basis. We recommend talking to an experienced attorney to evaluate the details of your case. Generally, you can expect to have a valid claim for medical malpractice if your doctor did something that is outside what’s called the “standard of care.”

What’s the “Standard of Care?”

The standard of care is the care which a reasonably prudent, similarly situated professional would have provided to the patient in the same situation. Essentially, you can think of it as what the average doctor would do in that situation.

What do I need to prove?

To establish the validity of your medical malpractice claim, you first need to prove that you were under the care of the doctor in the first place. This is typically easy to prove and not normally contested.

You then have to prove that the doctor deviated from the standard of care and this deviation caused an injury or death. This is where you can expect your claim to receive the biggest pushback. The attorneys for the doctor or healthcare facility will argue that the standard of care was indeed provided; or if it clearly wasn’t, the argument will likely be that failure to provide the standard of care did not directly lead to the injury (that is, you would have sustained that injury regardless).

“Failure to diagnose” cases—when you go to your doctor for an illness or injury and they fail to diagnose you correctly—frequently make the argument that the injury would have been sustained regardless.

For example, if your doctor doesn’t order an MRI after you complain of persistent headaches and you later discover that you have a brain tumor, you may have a cause of action against them. However, if your tumor didn’t worsen between the time of the failed diagnosis and the true diagnosis, you may lose your ability to recover compensation because there was no negative impact to your health.

How long do I have to file a lawsuit for medical malpractice?

The statute of limitations is 2 years for medical malpractice claims. That being said, you may not realize you are injured until years after treatment in many medical malpractice scenarios. For example, if the surgeon left a towel in your body during surgery, you may not begin seeing health complications until the fabric begins breaking down. In this instance, you would have 2 years from the time the injury presented itself.

Do I sue my doctor, my nurse, or the hospital?

This depends on your individual case, but we usually recommend filing a lawsuit with all individuals and organizations included as defendants. This prevents them from pointing the finger at someone else and leaving you without any compensation for your injuries.

If I win a lawsuit, what do I receive?

Medical malpractice is a civil lawsuit, which typically results in the injured party receiving damages. Damages are financial payments from the responsible party (your doctor or healthcare facility) to the injured party (you), and come in two basic types: compensatory and punitive. Compensatory damages are far more common and meant to replace the financial losses you incurred (such as lost income, etc) as a result of the doctor’s mistake.

Punitive damages are more rare, and meant to punish your doctor for a particularly egregious mistake. Punitive damages are reserved for extremely bad behavior on the part of a medical professional.

Can I sue for pain and suffering?

Yes, but there is a cap. Oklahoma allows you to sue for an unlimited amount of economic losses, which is the income you lost or will lose as a result of an injury. For example, if you became paralyzed as a result of medical malpractice and can no longer work, you would sue for your future earnings—this would be economic losses.

However, you may also sue for the pain and suffering you were forced to endure as a result of medical negligence, up to the Oklahoma state cap of $350,000. This cap is firm, regardless of the number of defendants involved and the severity of the pain and suffering.

The Bottom Line

Sometimes, a doctor’s mistake can create new and even worse health issues. While the mistake can’t be undone, you can get justice; medical malpractice laws are intended to compensate you in cases of medical negligence. If you feel you are a victim of medical malpractice, give us a call and one of our experienced attorneys will help you determine how to move forward.

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