When medical malpractice occurs, we often think of a doctor being held liable individually. But the medical institution a doctor works for may be liable as well when a doctor’s errors harm patients. For this reason, you must consider a medical malpractice claim against a hospital if you are injured while under the care of a doctor there.
A hospital or other medical center may have “vicarious liability” for doctors and other medical professionals who practice in their name. Under this legal theory, an employer is responsible for the actions of its employees. Hospitals may also be held liable in malpractice claims if their policies allow or lead to negligence that hurts patients.
The medical malpractice attorneys of Powers & Santola, LLP, can investigate your case in Albany or elsewhere in New York to determine whether medical negligence occurred, and whether a hospital should be held liable along with or instead of a doctor who treated you. If there is a legitimate case to be made, we will aggressively pursue all compensation that you have a right to receive.
What Kind of Doctor Mistakes Amount to Medical Malpractice?
Not everything that goes wrong during medical care is automatically a case of malpractice. Medical professionals of all types are expected to meet an expected standard of care. If care does not meet that standard, the test for malpractice becomes whether the doctor and/or other professionals in question committed a preventable medical error by failing to act as other medical professionals would have under similar conditions and circumstances.
If the preponderance of evidence shows the doctor in question fails these two tests, then it can be said that malpractice occurred. A claim must also show that:
- The patient suffered a significant and permanent injury or death.
- The malpractice was a direct and substantial cause of the injury or death.
A few common types of preventable medical errors seen in hospital settings are:
- Diagnostic errors. These errors often occur in emergency rooms where an attending or resident doctor fails to obtain a full medical history, order appropriate tests, accurately interpret ordered tests and/or properly consider a patient’s symptoms.
- Medication errors. Where the wrong medicine or dosage is ordered and/or administered to a patient, or where it is administered at incorrect intervals. In some cases, a doctor may fail to recognize a dangerous combination of medications.
- Surgical errors. These errors include wrong-site surgery, organ perforation, anesthesia errors and leaving foreign objects like sponges or instruments in a patient. During post-operative care, the failure to provide proper observation and treatment may lead to deadly infections.
Preventable medical errors that occur in hospital settings are often due to poor communication and/or rushing to complete one examination or procedure to get to the next one. This is negligence. A claim of being busy or overworked is not a legitimate excuse.
How Are Hospitals Liable for Medical Malpractice Mistakes Made by Doctors?
Usually, when a hospital is believed to be responsible for a doctor’s mistake that led to a patient being harmed, the argument is that an institutional practice or policy made the mistake inevitable. Some often-cited problems that lead to hospital malpractice are:
- Understaffing. When a hospital is not adequately staffed, it leads to overly lengthy shifts and fatigued doctors, nurses and other personnel. In some cases, an investigation will reveal errors due to poor staffing decisions such as putting unqualified personnel in responsible positions.
- Inadequate equipment. To save money, some medical institutions put off buying additional or new equipment. This can lead to people being injured or losing their lives simply because the proper piece of equipment was unavailable or not working properly.
- Inadequate policies or inadequate enforcement of policies. Hospitals should have policies, procedures and protocols in place to deal with medical emergencies as well as “routine” situations. They must guard against creating additional medical problems such as hospital-acquired infections (HAI), medication errors and blood clots in convalescent patients. In addition to having policies on the books, a hospital must ensure those policies are followed consistently. Failure of hospital administrators to ensure that all staff members always follow proper protocol can lead to mistakes that cause patients to suffer.
Generally, if a hospital employee was performing a job-related function associated with caring for a patient, and the patient was injured as a result of their negligent performance, the hospital may be liable for the injury.
However, not all doctors who treat patients at a hospital are employees of the hospital. Some doctors have hospital admitting privileges and essentially act as independent contractors. In the case of a non-employee’s preventable medical error, you can expect a hospital to assert that it is not liable.
In some cases, a doctor who is not employed by a hospital can be said to have “apparent agency,” which means they were perceived by the patient to have been a hospital employee. In most cases, a hospital admission form signed by the patient will state that their doctor was not a hospital employee. This will carry weight, but it is not ironclad.
The hospital may still be held liable if it was negligent in granting privileges to a doctor with issues it knew about or should have known about such as a history of substance abuse or previously substantiated malpractice claims. A hospital may be found liable if, for example, an investigation shows a pattern of mistakes the doctor made with other patients at the hospital, which administrators failed to act upon.
How Do I Sue a Hospital for a Medical Malpractice Mistake Made by a Doctor?
Medical malpractice claims can present complex legal issues that any hospital will be well-equipped to fight. Pursuing a claim will require a thorough investigation of the care that you or your loved one received in the hospital and of the actions and status of all medical professionals involved in the alleged medical error.
It will also require working with highly knowledgeable medical experts. These experts can review all available medical files and other evidence and provide us with an objective assessment of whether a claim of malpractice should be pursued. If so, we will aggressively pursue compensation for you through the settlement negotiation process and, if necessary, through trial.
Ask Our Albany Medical Malpractice Lawyers About Taking on Hospitals
The medical malpractice lawyers of Powers & Santola, LLP, thoroughly investigate every claim brought to us, and we always seek maximum compensation available for our clients in each case. If you think that the treatment which you or a loved one received at a New York hospital did not meet the appropriate standard of care and caused harm, contact us today and learn more about how we can help you.
How Do You Choose a Hospital?
It defies what many would expect: You have a better chance of surviving a serious injury or illness if you are actually taken to a hospital with a busy emergency room instead of one that is less hectic and crowded, according to a new study by the University of Michigan Medical School.
According to a University of Michigan news release, the study analyzed 17.5 million patients who were treated at 3,000 hospitals across the country. Surprisingly, the patients treated at the busiest hospitals had a 10 percent greater chance of surviving than those treated in the least busy ones.
The greatest difference in care involved patients who had time-sensitive conditions. For instance, patients with sepsis, lung failure and heart attacks were all more likely to survive in the busiest ERs than in the least busy departments.
The study was published July 17 in the Annals of Emergency Medicine.
Based on this study, should one seek out a busy hospital for emergency medical care? Not exactly, according to one of the researchers, saying in a released statement, “It’s too early to say that based on these results, patients and first responders should change their decision about which hospital to choose in an emergency.”
So, this raises the question: How do you choose the best hospital for you?
Rankings and Profiles
When choosing which hospital to go to in the case of an emergency or for other medical care, one source you can turn to is the annual rankings prepared each year by U.S. News & World Report.
The news organization scores hospitals in a variety of categories, including death rates for cancer, cardiology and geriatrics. Four other measurements are based on reputation and include psychiatry, rehabilitation, ophthalmology and rheumatology.
For example, in the latest U.S. News & World Report rankings for “Best Hospitals in New York,” 250 hospitals were analyzed. Twelve New York hospitals ranked nationally, while 35 met standards for strong performance.
Only four hospitals outside of New York City made the top 10 hospitals in the list, with New York-Presbyterian University Hospital of Columbia and Cornell in New York City at No. 1.
In the Albany metro area, three hospitals had notable scores. St. Peter’s Hospital received a national ranking, while Albany Medical Center had 11 high-performing specialties. Saratoga Hospital, also mentioned, had one high-performing specialty.
However, a news organization’s rankings don’t always tell the whole story, and they should not be solely relied on when making a decision.
For instance, you may also want to check out the New York State Hospital Profiles provided by the New York State Department of Health. This database provides “quality of care measurements” for hospitals throughout the state and allows you to compare those measurements among different hospitals.
The bottom line: As the University of Michigan study, U.S. News & World Report rankings and New York State Hospital Profiles show, there are clearly differences in the level of care that are provided by different hospitals. You should take the time to do some research and find out more about the hospitals in your area.
Questions to Consider Asking Before You Have Surgery
The field of medicine has advanced beyond our wildest dreams. Today, medical professionals are able to treat and repair conditions that were once thought hopeless. Still, mistakes happen. Unfortunately, medical malpractice may – and too often does – occur in New York and across the country.
According to a study published in 2012 in the journal, Surgery, some 4,000 “never events” happen each year in the U.S. These are events that should never happen because they are contrary to commonsense medical practices.
For instance, the study by Johns Hopkins researchers estimated that at least 39 cases arise each week in which doctors and nurses leave an instrument or other foreign object behind in their patients after surgery. These objects often are surgical sponges, which can cause pain, infections and — in the very worst cases — death if they are sewn inside of a patient.
However, being informed about your surgery can help to put your mind at ease before you go in. It may also help to prevent errors by the doctor and others on the surgical team.
As a patient, you have every right to ask all the questions you want, from long before you are admitted to the hospital through your post-surgery recovery.
Here are six questions you may want to ask (based on suggestions from the Johns Hopkins Medicine Health Library and other sources):
1. What is the surgery, and why is it recommended?
The most basic question — why — can help you to understand what will happen during your surgery and why it is necessary. Do not rely on a Google search to tell you why you are going in for a particular operation. Even though the Internet is filled with information, that information is not specific to your case. Ask your doctor for details. Also, ask why surgery is the best option compared to non-surgical treatment options. If you have any doubt, do not be afraid to seek a second or even third opinion.
2. What is your experience with this procedure?
As Dr. Adam Bloomberg suggests in a piece on CNN.com, ask your doctor how many times he or she has performed this procedure before. How confident is the doctor in his or her ability to achieve success?
3. What are the potential complications?
There are risks involved with every surgery. Make sure you understand the potential complications with yours. Also, ask for specifics on the likelihood of these complications actually happening.
4. What type of anesthesia will be used?
Ask whether you will be awake during the surgery. Will a local, general or regional anesthesia be used? Who is the anesthesiologist? How many times has your doctor worked with him or her before? Unfortunately, anesthesia mistakes are a common source of surgical complications and a frequently missed topic in pre-surgery discussions between doctor and patient.
5. What will recovery be like?
Talk to your doctor about what you can expect after the operation. How long will you be hospitalized? What sort of after-care will be provided? How long will it be before you can go back to your normal life?
6. Has everything been checked and double-checked?
Finally, do not be afraid to ask your doctor and the rest of the medical staff if the right operation has been scheduled and noted in your chart on the day of the surgery. Is there any doubt as to which body part will be operated on? These are important questions. After all, Johns Hopkins researchers determined that doctors operate on the wrong body part in an estimated 20 cases per week.
As a patient, you can and should be your biggest advocate. Never be afraid to be a vocal one.
If I Had Known the Risks Associated with My Surgery, I Wouldn’t Have Agreed to the Procedure. Can I Sue My Doctor?
Surgical procedures can be lifesaving, but they also come with risks. A patient should understand those risks before agreeing to the surgery so they can make an informed choice. If I had known the risks of my surgery, I wouldn’t have done it. Can I sue my doctor?
Unfortunately, all too often, patients find themselves experiencing complications after a procedure that they had never been warned about. Doctors who fail to tell patients about the known risks of a procedure neglect their professional duties and, in doing so, expose the very people they’re sworn to heal to unwanted hazards.
If I Had Known the Risks Associated with My Surgery, I Wouldn’t Have Agreed to the Procedure. Can I Sue My Doctor?
If your doctor convinced you to undergo a surgical procedure without warning you about the possible risks, you may be able to hold them liable in a medical malpractice suit.
At Powers & Santola, LLP, we want to help victims of medical malpractice make informed choices about their legal options. With that in mind, here is some information to help you understand the concept of informed consent and how it might apply in your case. If you decide to take legal action, our Albany hospital malpractice lawyers are ready to help.
What Is Informed Consent?
Informed consent is consent to a medical procedure given by a patient who is both informed about the potential risks and alternatives and in a state of mind in which they are capable of making such a decision.
Doctors must obtain informed consent before performing a procedure or sending the patient to have the procedure performed elsewhere, except in emergencies that make it impractical or impossible to get informed consent.
A patient should know all of the following before agreeing to a procedure:
- Their diagnosis
- What the procedure does and how it is performed
- The desired outcome and potential benefits of the procedure
- All known risks associated with the procedure, no matter how minor or common
- Risks and benefits of not having the procedure
- Any widely accepted alternatives to the procedure
A patient who does not know any of these pieces of information may be unable to give informed consent. In cases of emergency, in which the doctor must act quickly to save the patient’s life, informed consent is not required. However, when the patient has the time and capacity to give informed consent, it is required.
Patients who are about to have surgery are often given lengthy documents to read and sign in order to give consent, but that does not necessarily mean their consent was truly informed.
Failure to Obtain Informed Consent
When a doctor performs a procedure on you or sends you to have a procedure performed without obtaining your informed consent, that may be an act of medical malpractice.
Different states have different ways of determining whether a doctor has failed to obtain informed consent. New York uses what some call the “professional standard,” meaning that a doctor fails to obtain informed consent if they do not inform the patient of a risk that other doctors would have informed them of.
Here are some examples of ways that doctors can fail to obtain informed consent under this standard:
- Failure to talk about risks that are so widely known that other doctors would almost certainly discuss them
- Failure to discuss widely available alternatives that most doctors would have patients consider
- Failure to explain what could happen if the patient does not undergo surgery
- Putting all of the potential risks in writing but failing to actually discuss them with the patient
This last point is one that can easily go overlooked. Consent documents can be dense and complicated. It is likely that many patients will not read every word from beginning to end, or that if they do, they will not understand every word. Because of this, doctors have an obligation to actually have a conversation and discuss risks with patients instead of assuming they will read or understand everything in the fine print.
Legal Options After Your Doctor Fails to Obtain Informed Consent
If your doctor failed to obtain informed consent for a procedure you underwent, you can sue to hold them liable for your injuries in a medical malpractice claim. Under New York’s professional standard, you can’t necessarily sue just because you wouldn’t have agreed to a procedure had you known the risks, but you can if you can prove that a “reasonable” doctor would have informed you of those risks.
If you are able to prove that you did not give true informed consent for your procedure, you could recover damages for a number of costs, including:
- Additional medical bills arising from complications of your procedure
- Lost wages, if complications of your procedure lengthened your recovery time
- Future lost income, if complications of your procedure left you disabled
- Physical and emotional pain and suffering
- Transportation and other expenses
- Wrongful death
Whether your case ends in a court verdict or an out-of-court settlement, these damages could add up to a significant amount of compensation. If you think you may have a case against your healthcare provider, you should consider getting in touch with a medical malpractice lawyer as soon as possible.
Contact a Medical Malpractice Attorney in Albany Today
Agreeing to a surgical procedure is a big commitment. No one should ever be expected to make that decision without first knowing all the risks involved. Doctors who fail to help their patients understand the risks and benefits of a procedure are shirking their professional responsibility and betraying the trust their patients give them, with potentially disastrous results.
At Powers & Santola, LLP, we believe negligent doctors should compensate patients for their mistakes. Our Albany surgical malpractice attorneys have years of experience fighting to hold negligent doctors and hospital staff accountable for the harms they’ve exposed unwitting patients to.
If you or someone you love has been subjected to a medical procedure without being informed of the risks, we can help you sue your doctor for the compensation you deserve. For more information, contact us online or call now for a free claim review and advice about your legal options.