Medical Malpractice

Legal representation in Medical Malpractice cases

What is medical malpractice?

The evolution of technology and the advancement of medical science have helped the building of extremely efficient medical tools and more precise treatments. The medical staff, especially doctors, are held accountable for the patient’s wellbeing: they must make decisions based on the best outcome for their patient.

Medical malpractice occurs when a hospital, doctor, or other health care professional, through a negligent act or omission, causes an injury (it can be emotional, physical, or financial) to a patient. The damage must be caused by a negligent/wrong act in order for the case to be considered medical malpractice.

What is considered a negligent act? It can take many forms, however, most often it refers to a wrong diagnosis, improper treatment, lack of intervention, etc.

Examples of medical malpractice:

  1. Inadequate diagnosis, or the inability to offer a correct diagnosis
  2. Misreading or ignoring laboratory results
  3. Unnecessary surgery
  4. Surgical errors or wrong site surgery
  5. The administration of inadequate medicine though the type of the treatment or of the administrated dose
  6. Poor follow-up or aftercare
  7. Premature discharge
  8. Disregarding or not taking appropriate patient history
  9. Failure to order proper testing
  10. Failure to recognize symptoms
  11. Failure to redirect the patient to the superior

In order for the doctor to be held legally liable for making these types of mistakes, it’s necessary for the faulty medical act to cause a prejudice to the patient, specifically, an injury to the physical and mental health or to the bodily integrity of the patient. In practice, most commonly encountered medical mistakes, out of negligence, are committed in the post-surgery surveillance of the patient.

The patient’s rights

According to the Romanian law (Law no. 46 from 2003), a healthy or sick person that makes use of medical services in any way is called a patient. A patient is granted the following rights:

  1. The right to receive medical attention
  2. The right to privacy and intimacy
  3. The right to access medical history
  4. The right to a second medical opinion
  5. The right to refuse being informed
  6. The right to refuse medical treatment or intervention
  7. The right to be treated by a certified doctor
  8. The right to be treated as a human being
  9. The right to die with dignity

Failing to comply with the patient’s rights can bring charges of medical malpractice. Some examples include: not respecting a patient’s privacy, not informing the patient, exceeding one’s medical competencies when caring for the patient, unauthorized practice, refusal to allow the patient access to their medical files, discrimination against patients, abandonment of the patient, refusal to provide medical services.

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Who can be held responsible?

If you suspect you or your loved one has suffered unnecessarily, you can:

Obtain your medical records. Patients have a right to obtain and review their own medical records from the medical unit they have been treated at. In those records, the actions, or inactions of the medical team, as well as your symptoms, will be documented to offer a clear view of how the situation unfolded. In order to obtain these documents, you must make an application in writing to the medical unit – we recommend the writing of two applications, one of which will be kept by you as a proof for the request.

Besides the medical staff (doctors, nurses), there are four more entities that can be held responsible:

  1. The medical units: they can either be blamed in their quality of employer of the doctor that committed such an act, or it can be the only responsible one for cases where the damage is provoked by improper work conditions, old machines or broken medical tools, expired meds and substances, hospital-acquired infections etc.
  2. The manufacturer of medical equipment/ medication: for any possible technical flaw that could create damage to the patient
  3. Those that provide services for medical units: if any of the services leads to damage to a patient
  4. The provider of professional indemnity insurance of the doctor/medical unit: they have the legal obligation to close an insurance contract with a specialized firm, and they shall be accountable for the damages caused by the policyholders during the medical act

What can a victim of medical malpractice do?

It might be difficult to establish if we, or someone we care for was the victim of a medical malpractice case. The evolution of technology and modern medical practices have led to the improvement of treatments and medical practice in order to assure the healing of the patient, but sometimes the negative result cannot be avoided. More so, not all the unpleasant consequences are caused due to negligence. Unfortunately, there are many situations in which the actions of medical staff (or the lack of them) lead to the harm, or even death of the patient, and in these situations the guilty must be held accountable. According to the law, the victim of a medical error has the right to obtain material and moral compensation for the damages they suffered. In order to be compensated, the injured party must formulate a civil action or a criminal complaint against the doctor that made the mistake. In court it must be proven – with the help of the forensic expertise – that the mistake of the doctor cause the patient’s injury.

Are there any exceptions that are not considered negligence?

There are a few exceptions when the medical workers can’t be held responsible for malpractice even though the patient has sustained any kind of damage. It is not considered a case of malpractice if:

  1. The healthcare professional is acting in good faith, respecting the level of their medical competencies.
  2. The healthcare professional is acting above their medical competencies during an emergency. This constitutes an exception in the case where those that would have the needed level of experience are not available, and the medical staff that tends for the patient acts in good faith.
  3. When the injury appears: due to the lack of adequate equipment, unforeseen complications, nosocomial infections, adverse effects, the lack of medical science in that moment – these wear the name of objective errors
  4. The healthcare professional cannot be held accountable for the misdiagnosis if the imperfect techniques do not allow an objective right diagnosis.

For a strong case, the patient must prove the following:

  1. There has been a violation of the health standard. The law recognizes the existence of several medical practices as being appropriate and universally acclaimed by all healthcare professionals – these form the health standard. The patient has the right to treatment that respects the health standard, and any infringements or violation of the standard can mean an act of negligence.
  2. An injury was caused by negligence - For a medical malpractice claim to be valid, it is not sufficient that a healthcare professional simply violated the standard of care. The patient must also prove he or she sustained an injury that would not have occurred in the absence of negligence. An unfavorable outcome by itself is not malpractice. The patient must prove that the negligence caused the injury. If there is an injury without negligence or negligence that did not cause an injury, there is no case.
  3. The injury resulted in significant damages for a case to be viable, the patient must show that significant damages resulted from an injury received due to the medical negligence. Most times the injury resulted in physical ailments (disability, loss of income, unusual pain, suffering and hardship), mental suffering (anxiety, depression) or significant past and future medical bills.

Types of legal advice for medical malpractice

Legal assistance for the victims

Our office formulates for the victims petitions to start lawsuits and criminal complaints against the liable doctors or hospitals, assists and represents the victims of medical malpractice in civil and criminal lawsuits, in order to obtain the just damages.

Legal advice for doctors

We offer legal assistance in civil and criminal lawsuits to doctors and dentist that are accused of making some mistakes during the exercise of the medical profession. We also offer preventive legal advice in order to protect them from possible medical malpractice lawsuits.

Legal advice for private medical units

We offer continuous preventive legal consultancy to hospitals and private clinics, for the protection of the juridical person, as well as for the collaborator medical staff or employees, also services of representation in civil and criminal lawsuits started by the clinic’s patients.

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