Expert Witness Testimony

Tue, 29 May 2007 21:19:00 GMT

To establish a prima facie (on the face of it) case of medical malpractice, the claimant must present expert medical and nonmedical (i.e. financial expert) testimony verifying the claims of negligence and request for economic damages, unless the negligence can be inferred from the facts. Meaning that expert witnesses against a physician accused of negligence must be certified in the same specialty and must have practiced within the previous year

Arbitration

Tue, 29 May 2007 21:19:00 GMT

Alabama law allows for the reference of a medical malpractice action to an arbitrator only upon the written agreement of the parties. Such an agreement is binding and irrevocable.

Attorney Fees

Tue, 29 May 2007 21:19:00 GMT

Contingency fee agreements are agreements that an attorney has with his or her client regarding the payment of the attorney fees. It is not based on the usual hourly rate of the attorney. Rather, the attorney is paid if and when the client recovers on the claim. Alabama law does not place a cap on attorneys` fees in medical malpractice actions. Some attorneys provide for a different percentage if the case is settled early or if the case goes to trial. Generally, even under contingency fee arrangements, the client is ultimately responsible for out of pocket expenses such as filing fees, copying costs, deposition and expert costs, et cetera. For more information on contingency fees, please consult an attorney in your area.

Contributory Or Comparative Negligence

Tue, 29 May 2007 21:19:00 GMT

Contributory negligence: Conduct on the part of the plaintiff which falls below the standard to which he should conform for his own protection and which is legally contributing cause in addition to the negligence of the defendant in bringing about the plaintiff`s harm. At common law any amount of contributory negligence would bar recovery. Meaning that if the Court found the plaintiff contributing to his/her injuries then they would be barred or stopped from any recovery.

Comparative Negligence: the allocation of responsibility for damages incurred between the plaintiff and defendant, based on the relative negligence of the two. The reduction of the damages to be recovered by the negligent plaintiff in proportion to his fault, i.e., if the Court found that the plaintiff was 15% responsible for his/her injuries then any recovery would be decreased by that 15%.

Alabama adheres to the pure doctrine of contributory negligence.

How Do I Know If My Injury Constitutes Medical Malpractice?

Tue, 27 May 2008 13:43:53 GMT

The standard of care for all Alabama health care providers is that level of such reasonable care, skill, and diligence as other similarly situated health care providers in the same general line of practice, ordinarily have and exercise in like cases. A breach of the standard of care is the failure to comply with the standard of care, which failure proximately causes personal injury or wrongful death. The burden of proof is on the patient to prove by substantial evidence that the health care provider failed to exercise such care and that failure was the cause of the injury.

It is important to note that medical malpractice claims are very difficult to prevail in and are also extremely expensive partly due to the need for qualified expert review and testimony. The plaintiff must prove negligence through the use of expert testimony, unless an understanding of the doctor`s alleged lack of due care or skill requires only common knowledge or experience. The exception only applies in foreign object cases or when the injury is to a part of the body other than that being treated.

Whether or not you have a good case depends on the professional judgment of attorneys and medical experts. If you are told that you do not have a case with merit, you should seek another opinion from one or more other attorneys.

How Much Can I Expect An Attorney To Charge To Handle A Medical Malpractice Case?

Tue, 29 May 2007 21:19:00 GMT

There is no cap on attorney fees for medical malpractice cases in Alabama. Most attorneys will take a medical malpractice case on a contingency fee basis. This means they will take a percentage of your recovery in the case, rather than charge you by the hour. The percentage can range from 25% to 40% and is in addition to the attorney`s out of pocket expenses. Please bear in mind that in a medical malpractice case, these expenses can be quite high. Many attorneys will decline a case unless there is potential for a substantial verdict or settlement.

How Much Can I Expect To Be Compensated For My Pain And Suffering?

Tue, 29 May 2007 21:19:00 GMT

Alabama statutes have attempted to put caps on the damages that can be awarded in medical malpractice cases. The statutes provide that the limits for noneconomic damages in an injury case are $400,000 and the judgment in a wrongful death case cannot exceed $1,000,000. The courts have declared these statutes to be unconstitutional. County and municipality liability is limited to $100,000 per person and $300,000 per occurrence.

Immunities

Tue, 29 May 2007 21:19:00 GMT

The State of Alabama may never be made a defendant in any court of law or equity. The absolute immunity extends to state universityaffiliated hospitals. It also prohibits suits against state officers and agents in their official capacity when a favorable result to the claimant would directly affect a contract or property right of the state. Nevertheless, this section does not prohibit an action against state employees for personal injury based on their negligent conduct in performing nondiscretionary or ministerial functions, even when committed in the line and scope of employment. Alabama counties do not enjoy immunity from actions for the negligent acts of their officers and employees. The only exception would be when they are carrying out a state function and share in the state`s immunity. A cause of action against a county must be presented to the county commission within twelve months of the accrual of the action. Alabama municipalities are liable for an injury caused by the neglect, carelessness, or unskillfulness of their employees acting within the scope of their employment. All claims against a municipality grounded in tort are barred unless presented to the clerk within six months of the accrual of the action. The municipality must defend its employees if sued.

Is There A Time Limit In Which I Need To File A Lawsuit For Medical Malpractice?

Tue, 29 May 2007 21:19:00 GMT

Yes, there is and that time limit is referred to as the statute of limitations. In Alabama, medical malpractice actions for personal injury must be filed within two years from the act or omission causing the injury or death. If the cause of action is not discovered or could not have reasonably been discovered within the twoyear period, the action may be filed within six months of the discovery. This limitation period is tolled for minority or disability, but cannot exceed more than four years. The one exception is that a minor who is under age four has until his eighth birthday to bring an action.

A wrongful death action must be commenced within two years after death. There are no tolling provisions that apply to this limitation period.

In an action against a county, the county must be notified of a possible suit within twelve months of the accrual of the action. A municipality must be notified within six months of the accrual. State hospitals are immune from liability as are good Samaritans including emergency personnel.

Ob-Gyn

Tue, 29 May 2007 21:19:00 GMT

OB or obstetrics malpractice may include failure of the obstetrician to properly perform his or her duties including failure to perform the proper laboratory tests, including diagnosing RHnegative patients, a blood test or amniocentesis that would diagnosis possible defects in the fetus, all of which could cause injury or death to both the mother and the fetus. GYN medical malpractice may include the failure of a gynecologist to properly perform his or her duties. These include IUD`simproper insertion and monitoring of IUD`s may cause pregnancy complications or fertility problems; DISEASEfailure to diagnose a gynecological disease such as ovarian, cervical and breast cancer, endometriosis, pelvic inflammatory disease and many other diseases, may cause pregnancy complications or fertility problems. Both can be very serious and often become life threatening.

Breast cancer is probably the most oftenreported medical negligence claim involving women. It can be defined as a new and abnormal formation of tissue as a tumor or growth. Tumors can be malignant or benign. Malignant tumors are cancerous. The tumor grows at the expense of the healthy organism. The growth infiltrates the tissue, spreads (metastasizes) and often reoccurs after attempts at surgical removal. Breast cancer is the most common malignancy among women and accounts for 27% of all cancers and 18 % of all cancer deaths. While breast cancer is one of the most common cancers it is also fortunately one of the most treatable of all human malignancies. Breast cancer is usually detected by selfexaminations, physical examination by a physician, a mammogram (an xray which detects 85% to 90% of existing breast cancers), ultrasounds, aspiration biopsies and magnetic resonance imagining (MRI`s). Women in the highrisk group for breast cancer (ages 4049) should have mammography every one to two years. Women over 50 should have annual mammography. Women with dense, fibrous breast tissue in which lesions are difficult to detect should always have a physician perform an exam as well. There is substantial controversy regarding the use of screening mammography for women under 50. Cancer cells become even more dangerous when they break away from the tumor and enter the blood stream or lymph system. This process is called metastasis. Progressive metastasis often leads to death. For this reason, a failure to properly diagnose cancer is a significant breach in medical care. Delay in the diagnosis of breast cancer arises in several contexts: (1) the physician`s failure to appropriately evaluate a complaint of a palpable mass, (2) failure to properly read a mammogram, (3) inappropriate reliance upon a negative mammogram in the face of a palpable mass, and (4) failure to perform additional tests such as aspiration biopsy and/or open biopsy of a mass. These are the most common ways in which physicians commit malpractice in connection with breast cancer.

Ovarian cancer is the most frequent cause of gynecologic cancer death because cases are detected in advanced stages of the disease. Late detection is caused because of an absence of any specific symptom while the disease is still localized, as well as the lack of effective strategies for prevention or screening. This means that by the time the diagnosis is made, it is at an advanced stage. Nearly 1 woman in 70 will develop the disease. Over the past 25 years there has been a steady increase in the ovarian cancer rate. Primary symptoms include nausea, difficult or painful eating and lower abdominal discomfort that is too vague to suggest ovarian cancer. Therefore, there is a definite need for a routine gynecologic exam. While ultrasound is considered the safe, noninvasive procedure of choice to determine the presence of a disease in the pelvic region, exploratory laparoscopes are the best way to obtain the diagnosis of ovarian cancer as it allows the physician to obtain laboratory samples that can confirm or deny the presence of cancer. Patients over 40 are at a greater risk for ovarian cancer. It develops in 4 Stages: Stage I (growth limited to the ovaries); Stage II (growth involving one or both ovaries with pelvic extension); Stage III (tumor involving one or both ovaries limited to the pelvis); and Stage IV (growth involving one or both ovaries with distant metastasis). As with other forms of cancer, the plaintiff can only recover significant damages if the disease is discovered at an early stage. Unfortunately, in 75% of all patients, ovarian cancer has spread beyond the ovary at the time of diagnosis. Diagnosis is rarely made when the patient is in Stage I of the disease. The ultimate legal question with regard to the diagnosis of ovarian cancer is whether, when the physicians saw the patient, the diagnosis should not have been missed in light of the available developmental facts.

Cancer of the cervix can be detected reliably by obtaining a Pap smear. The American Cancer Society recommends that a Pap smear be obtained every 3 years after 2 negative Pap smears were obtained at yearly intervals. Many gynecologists recommend yearly Pap smears. Cancer of the cervix is the third most frequent of the female cancers. Pap smears are read by laboratories, and it is important to examine old Pap smears to find out of they were properly read by the evaluator. Leading candidates for cervical cancer are those women in low a socioeconomic status, those who begin sexual intercourse at a young age, those who have more than one sexual partner, women who become pregnant at a young age, and women who have more than one child. Cervical cancer, which is identified early, has an excellent prognosis. The prognosis worsens with each advancing stage of the disease.

A patient cannot and should not sue a physician for the mere development of cancer, but a patient can bring a viable claim for the increased risk of harm resulting from the failure to diagnose and treat the cancer in a timely fashion. It is important to realize that a plaintiff alleging a failure to diagnose cancer has the same burden of proof as in any other medical malpractice lawsuit.

Patient Compensation Funds And Physician Insurance

Tue, 29 May 2007 21:19:00 GMT

Alabama does not have a patient compensation fund or a program of statesponsored liability insurance for physicians.

Recoverable Damages

Tue, 29 May 2007 21:19:00 GMT

In any action for injury against a health care provider, the injured party and spouse may be entitled to recover noneconomic losses to compensate for pain, suffering, inconvenience, physical impairment, disfigurement, loss of consortium, etc. Although the Alabama legislature passed a damage cap in 1987, is was held to be unconstitutional. The statute, which has never been repealed, provides that a medical malpractice plaintiff`s recovery for noneconomic losses, including punitive damages, may not exceed $400,000. The Court has also held to be unconstitutional a $250,000 cap on punitive damages. Damages for wrongful death, including wrongful death caused by medical malpractice, are awarded in Alabama in a manner unique to that state. That is to say they are considered punitive rather than compensatory. There are limits for County and municipal liability. For bodily injury or death it is limited to $100,000 per claimant and $300,000 per occurrence.

Time Limitations Or Statute Of Limitations For Filing A Claim

Tue, 29 May 2007 21:19:00 GMT

All actions must be commenced within two years after the act or omission giving rise to the claim; provided, that if the act or omission is not discovered and could not reasonably have been discovered within the twoyear period, then it may be commenced within six months from the date of discovery or the date of learning of facts that would reasonably lead to such discovery, whichever is earlier. Although this statute of limitations is subject to tolling for minority or disability, in no event may an action be brought more than four years after the act or omission, except that a minor who is under the age of four at the time of the act or omission accrues has until his eighth birthday to commence an action.

Vicarious Liability

Tue, 29 May 2007 21:19:00 GMT

When a person is held responsible for the tort of another even though the person being held responsible may not have done anything wrong. This is often the case with employers who are held vicariously liable for the damages caused by their employees, such as the event of hospitals and physicians. One can make the assumption that a physician is an employee of the hospital without making an inquiry as to whether or not the physician is actually an employee of the hospital. Therefore, the hospital could be held accountable for any of the physicians` actions, without having done anything wrong.

What Happens If I Am Injured In The Course Of Medical Treatment?

Tue, 29 May 2007 21:19:00 GMT

If a medical professional makes an error, which results in injury to the patient, the patient may be able to sue the negligent party or parties for monetary damages to compensate him or her for the injury.

The term medical liability is used to describe a finding that a physician, dentist, medical institution, or other health care provider did not meet the applicable standard of care, and that such failure was the proximate cause of the injury complained of, resulting in damage to the patient. Medical malpractice can occur in many different situations. Some examples include incorrect diagnosis, failure to treat, improper treatment, delay in treatment, prescription errors, surgical errors, etc.

Who Can Be Held Accountable For The Medical Malpractice?

Tue, 29 May 2007 21:19:00 GMT

Generally, a medical malpractice claim can be brought against providers of medical or health care. This can include physicians, dentists, nurses, hospitals, and pharmacists, among others. These claims may be brought against individuals, corporations, associations, etc. The courts of Alabama have held that a hospital is not vicariously responsible for the acts of physicians who are not employees or agents. Later court opinions have indicated a hospital could be held liable based on the hospital`s negligence in appointing an incompetent physician or not properly monitoring the physician. The guidelines to prove such a theory, however, are stringent.

In the state of Alabama, where the negligence of more than one party combined to produce the injury, each party`s negligence is considered to be the proximate cause of the injury and each party is liable for the entire judgment.

It is important to note that Alabama adheres to the doctrine of contributory negligence. This means if the claimant`s negligence contributed to the injury, recovery will be completely barred.