Our Medical Malpractice Attorney FAQsGet Help Now
Who is responsible for the surgical error that left me injured? Can I sue my doctor’s employer as well as my doctor for medical malpractice? What can I do if a loved one died due to a medical error? You have many questions following a medical error that left you ill or disabled, but you may not feel ready to talk to anyone about your situation just yet. Browse through our section of medical malpractice Frequently Asked Questions to learn more before picking up the phone to call.
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What signs indicate I might be a victim of medical malpractice?
When you seek medical treatment, you never imagine that your healthcare provider might end up causing you serious harm. However, medical malpractice is much more common than you might expect. In fact, medical errors are said to be the third leading cause of death in the United States.
9 Signs That Suggest You're a Victim of Medical Malpractice
Some cases of medical malpractice are immediately obvious such as having surgery performed on the wrong body part. However, most malpractice cases involve errors that are harder to prove. If you have concerns about the care you've received, the following signs indicate you may have a valid malpractice claim:
- The doctor fails to order common diagnostic tests. Every medical condition has a list of specific symptoms and diagnostic tests that should be used to make a correct diagnosis. For example, if a patient has a change in bowel habits, blood in stools, abdominal pain, and unexplained weight loss, and colon cancer is suspected, a doctor should order a colonoscopy. A doctor who doesn't follow this standard of care may be guilty of malpractice.
- Your diagnosis is based solely on the results of one test. Generally speaking, a condition shouldn't be diagnosed based solely on the results of a single test. Results can be incorrectly interpreted or samples can be contaminated. Your doctor should confirm the results with other means before making an assessment.
- Your diagnosis is significantly delayed. It's unreasonable to expect your doctor to immediately know what's wrong with you, but alarm bells should go off if it takes several months to find a correct diagnosis. If this delay limits your treatment options, you may have a valid medical malpractice case.
- Your condition doesn't improve with treatment. Modern medicine can't work miracles, but a condition that doesn't improve despite ongoing medical care may suggest that your doctor has incorrectly diagnosed you or that appropriate treatment protocols aren't being followed. Both of these errors could constitute a malpractice claim.
- You're experiencing many complications. All medical treatment comes with some element of risk, but complications that are unexpected or more serious than anticipated warrant further investigation.
- Your healthcare provider doesn't explain treatment or answer your questions. Even though you didn't go to medical school, the doctor should explain your treatment options and answer questions related to your care before any procedures are performed. This is called obtaining informed consent.
- Your healthcare provider doesn't follow up. If you don't hear from a physician's office after a diagnosis, procedure, or treatment, this can constitute a form of malpractice. Doctors have a duty to follow up with patients as part of their medical care.
- You've received conflicting opinions. Whenever you have doubts about your medical care, it's a good idea to get a second opinion. If the second doctor's opinion is dramatically different, this is a good indication of potential malpractice.
- You were told there was a mistake in your care. Most doctors are extremely reluctant to admit liability, but some may inform patients of errors that can't easily be hidden and offer immediate compensation. If this happens, you should consult with an attorney to see if the offer is in line with the harm you have suffered.
Types of Available Compensation
A medical malpractice claim should include compensation for the following types of damages:
- Medical expenses necessary to address the effects of the error such as added surgery or prescription drug costs
- Future medical expenses, if you've been left permanently disabled due to the error
- Lost wages from any time you were unable to work due to the error
- Loss of future earning potential, if you now have a disability that will prevent you from working
- Pain and suffering
Seeking Legal Assistance
Malpractice law can be quite complex, and insurance companies will often offer settlements that are far less than what's appropriate for the harm you've suffered. An experienced medical malpractice attorney can advocate for your interests and help you receive the compensation you deserve.
Neblett, Beard & Arsenault's legal team is committed to protecting Louisiana residents who've been harmed by medical malpractice. Contact us online or call us directly at 318.588.6303 to schedule your free consultation.
When I sign a consent form prior to surgery, do I waive my rights to pursue a malpractice lawsuit?
Every operation carries an element of risk, even when the procedure is considered routine. Because of this, doctors require patients to sign a consent form before surgery.
The consent form limits your legal right to sue for surgical complications causing injury, but it does not necessarily prevent you from having a valid medical malpractice claim.
Understanding Informed Consent
Informed consent refers to the understanding that patients have the right to make educated decisions about the medical care they receive. While they can rely on the doctor's training and expertise, they still have the freedom to decide what care is best suited for their needs.
All surgeries carry the risk of complications such as infection. These complications can occur even when the surgeon does everything correctly. It is up to you to decide if the benefits of the surgery outweigh the potential risks.
Before you have surgery, you'll be asked to sign a consent form. Signing a consent form indicates:
- You know what procedure you are having the surgeon perform.
- You were told of the possible risks associated with the surgery.
- Your doctor discussed any available alternative treatments or procedures.
- You had a chance to ask questions before the surgery.
When the patient is a child, the parent gives consent. Informed consent is not required for emergency procedures, regardless of the patient's age.
When You May Have a Malpractice Claim
Signing a consent form does not give your surgeon total freedom from litigation. You may still have a medical malpractice claim if the surgeon failed to meet the medical standard of care for your condition.
Some examples of errors that could constitute a valid medical malpractice case include:
- You were the victim of a wrong site, wrong procedure, or wrong patient surgery.
- You suffered complications from a retained surgical sponge or surgical instrument.
- The surgeon punctured a nerve or organ.
- An improper incision nicked or cut an artery.
- The surgery was performed incorrectly due to the surgeon's lack of training or experience.
You may also be able to proceed with a malpractice case if the consent form was not worded properly. As a legal document, the form must contain specific information and phrasing to be considered valid.
Elements Necessary to Prove a Medical Malpractice Claim
You must be able to establish four key elements to win any medical malpractice case, including one that involves surgical errors:
- The existence of a doctor-patient relationship
- A deviation from the standard of care that constitutes negligence
- Injuries resulting from the negligent care
- Specific financial damages resulting from the injuries
Malpractice claims rely heavily on the testimony of expert witnesses who are professionals with education and experience in a specific area related to your case. These include surgeons who can talk about the accepted standard of care for your condition, as well as experts who can quantify your future financial needs as they relate to the injuries you've suffered.
The majority of medical malpractice claims are eventually settled out of court, with compensation based on negotiations between the malpractice insurer and your attorney.
Your settlement will include compensation for:
- Medical expenses related to treating any injuries caused by surgical errors
- Anticipated future medical needs, if you've been left permanently disabled
- Lost wages, if you had to miss work due to extra time in the hospital or a lengthy recovery process
- Loss of future earning potential, if applicable
- Pain and suffering, which includes both physical pain and emotional trauma
Malpractice cases are often accepted on a contingency fee basis, which means your attorney agrees to accept a percentage of the final settlement as a fee for his legal services instead of requiring upfront payment. You'll need to consider the contingency fee when deciding if a settlement is adequate for your needs.
How Neblett, Beard & Arsenault Can Help
Neblett, Beard & Arsenault has extensive experience assisting Louisiana residents in obtaining malpractice compensation related to surgical errors. Our attorneys can advocate for your interests throughout the settlement process, leaving you free to focus on recovering from your injuries. To learn more, please contact us online or call us directly at 318.588.6303 for a free consultation.
Do I have a malpractice claim if I was exposed to harmful radiation from an X-ray or a CT scan?
X-rays and CT scans are generally considered safe and effective, but serious harm can result if the risks of radiation exposure are not minimized. If you've suffered injuries due to radiation exposure, you may be eligible for compensation for medical expenses, lost wages, and pain and suffering in either a medical malpractice or product liability case.
Injuries Caused by Radiation Exposure
X-rays and CT scans allow doctors to get a better view of your bones or internal organs before diagnosing an illness or injury. However, the radiation used to perform these tests does carry a degree of risk.
Potential injuries linked to radiation exposure include:
- Organ and tissue damage
- Fetal abnormalities
The dangers of radiation exposure are increased when several tests are performed in a relatively short time period. CT scans carry a higher risk than X-rays because they use higher doses of radiation.
Responsibility for Radiology Equipment
In a hospital or imaging center, the person in charge of ensuring that the radiology equipment is used correctly and that patients receive the right dosage of radiation is called a medical physicist. Medical physicists are certified by The American Board of Radiology in one of three subspecialties: diagnostic medical physics, nuclear medical physics, or therapeutic medical physics.
Frequency of Radiation Overexposure
There is no federal agency that tracks radiation exposure related to X-rays and CT scans performed on the general public. However, the federal government funds a testing service known as the Imaging and Radiation Oncology Core (IROC) that must inspect any radiation center seeking federal funding for clinical trials. In 2008, IROC found almost 30% of hospitals undergoing inspection were not able to properly irradiate a test dummy. This statistic alone suggests a legitimate cause for concern.
Proving a Malpractice Case
Some examples of conduct that might be considered malpractice include:
- The doctor neglected to minimize the risk of radiation exposure by using ultrasound or other non-radiation diagnostic tests before ordering the X-ray or CT scan.
- The radiation dose wasn't properly calibrated for your body size.
- You weren't provided with a protective lead apron to shield the parts of the body the doctor didn't need to see.
- Your doctor recommended tests with unnecessarily high risk and minimal benefit such as a whole-body CT scan.
- Your doctor was sending patients to an imaging center he had a financial affiliation with—which could be a conflict of interest.
- You were pregnant at the time, and your doctor didn't inform you of the risks to the fetus associated with radiation exposure.
Malpractice claims involving radiation exposure can be difficult to prove. Tissue or organ damage and cancer related to medical radiation don’t appear until several years after exposure. Miscarriage or fetal abnormalities will be apparent much sooner, but these effects can also have a number of other causes.
Finding relevant expert witnesses to testify is essential in proving a causal link between your injuries and the radiation exposure. This testimony can also help establish negligence, which means that your doctor failed to follow the accepted standard of care for your condition.
Product Liability Claims
If your injuries are due to equipment failure or improper calibration, this non-medical cause wouldn't be considered malpractice. However, you may be able to seek compensation from the manufacturer or servicer of the equipment as part of a product liability claim.
Product liability law requires companies to be held legally responsible for the harm people suffer due to faulty manufacturing or design errors in a product. Failing to warn of the dangers associated with a product can also be considered evidence of negligence in a product liability claim.
Contact Neblett, Beard & Arsenault to Evaluate Your Options
If you've suffered harm that you believe was caused by exposure to excessive medical radiation, Neblett, Beard & Arsenault can help. Our attorneys have extensive experience assisting Louisiana residents in settling both medical malpractice and product liability claims. Cases are accepted on a contingency fee basis, so there is no upfront cost for obtaining quality legal representation. To learn more, please contact us online or call us directly at 318.588.6303 for a free consultation.
When am I entitled to damages from gastric bypass malpractice?
Gastric bypass is a type of bariatric surgery used to help obese patients reach a healthy body weight. Roux-en-Y laparoscopic gastric bypass, the most commonly performed type of gastric bypass in the United States, is considered one of the most difficult procedures to perform laparoscopically. If you've experienced complications following gastric bypass, you may be eligible to file a medical malpractice claim.
About Gastric Bypass
Gastric bypass involves dividing the stomach into a small upper pouch and a larger lower "remnant" pouch before connecting both pouches to the small intestine. The surgery promotes weight loss by reducing the functional volume of the stomach.
When gastric bypass is effective, patients typically lose 70 to 80% of their excess body weight within the first year. However, it is common for patients to regain 10 to 20% of this weight in the first five years after surgery. Results will vary based on specific diet and exercise habits.
By promoting long-term weight loss, gastric bypass can help improve obesity-related medical problems such as type 2 diabetes, obstructive sleep apnea, gastroesophageal reflux disease, and lower back pain.
Risks Associated With Gastric Bypass
All surgical procedures involve some degree of risk. The most common risks associated with gastric bypass include:
- Infection. Abdominal infections can result from incisions on the abdomen or inside of it. This can happen due to faulty technique, contaminated medical devices, and other errors.
- Anastomotic ulcer. The operation requires the doctor to create a connection between the stomach and bowel called the anastomosis. Ulcers can occur in this connection due to factors such as restricted blood supply or bacteria.
- Anastomotic leakage. If the anastomosis isn't sealed, it can release fluid from the gastrointestinal tract into the abdomen.
- Anastomotic stricture. When the anastomosis creates too much scar tissue, this can make it difficult for certain foods or liquids to pass through the body.
- Nutritional deficiencies. Gastric bypass surgery often impedes the body's ability to absorb calcium, iron, and other necessary nutrients.
Fatalities can result if complications aren't promptly identified and treated.
Poor Results Aren't Necessarily Malpractice
The most important thing to remember about gastric bypass surgery is that a poor result doesn't necessarily mean your doctor is guilty of malpractice. Patients often hope for a dramatic and rapid weight loss, but weight loss takes time even if all goes well during the surgery.
Medical malpractice involves the following four specific elements:
- Duty. The doctor was providing care to the patient in a professional capacity.
- Breach of duty. The doctor's actions constitute a deviation from the standard of care for the patient's condition.
- Damages. The patient suffered specific harm.
- Causation. The patient's damages were caused by the doctor's actions and can't be attributed to other factors.
Specific examples of actions that might constitute malpractice during gastric bypass surgery include:
- The doctor recommended you as a candidate for surgery despite knowing your history of heart disease, lung disease, or other chronic health problems that would increase your risk of complications.
- The doctor failed to obtain your informed consent for the procedure.
- The doctor performed the surgery incorrectly, resulting in digestive fluids and food leaking into your abdomen.
- The doctor failed to monitor you for infection and other complications after the surgery.
- You complained of pain, fever, or other symptoms of complications, and the doctor didn't perform the necessary tests to diagnose the cause of your condition in a timely manner.
Complications caused by your own failure to follow your doctor's orders and the post-surgical dietary requirements are not considered malpractice.
A malpractice claim is a type of civil action awarding you compensation for the specific damages you've suffered. For gastric bypass malpractice, this can include:
- Medical expenses related to treating complications such as the cost of additional surgery and hospital stays
- Lost wages from the time you were unable to work because of your condition
- Pain and suffering, including physical discomfort and the emotional impact of gastric bypass complications
To learn more, contact us online or call us today at 318.588.6303 to schedule a free, no-obligation consultation with the medical malpractice attorneys at Neblett, Beard & Arsenault.
When can C-section complications be the basis of a malpractice claim?
Over a third of babies born in the United States are delivered via cesarean section. Although the majority of these births happen without incident, complications that cause harm to the mother and/or her baby may be the basis of a medical malpractice claim.
Possible C-Section Complications for the Mother
C-sections are considered a form of major abdominal surgery. Even a C-section that goes smoothly requires the mother to spend three to four days in the hospital and four to six weeks recovering at home.
Some complications that can occur during a C-section include:
- Anesthesia errors. When too little anesthesia is administered, the mother can suffer extreme pain and emotional trauma. When too much anesthesia is administered, she can experience dangerously low blood pressure.
- Infections. Improperly sterilized tools, poor sanitation in the operating room, or objects left inside the patient can result in infections that require antibiotics and an extended hospital stay.
- Injury to other organs. A doctor who is rushing or inattentive could accidentally damage the bladder or other nearby organs when performing the procedure.
- Blood clots. The risk of blood clots is higher with a C-section than a vaginal delivery, especially if the doctor doesn't use blood thinning medication and get the mother up walking around as soon as possible.
- Blood loss. If the doctor cuts into the uterus accidentally, hemorrhaging can occur.
- Unplanned hysterectomy. If a doctor severs an artery, an unplanned hysterectomy may be done to save the mother's life. This can end her chance of having additional children.
- Wrongful death. If the mother isn't monitored and complications aren't addressed immediately, death can occur as a result of the surgery.
Possible C-Section Complications for the Baby
Mothers aren't the only ones who can be harmed by C-section complications. Issues that can affect the baby include:
- Lacerations, abrasions, and scarring. Lacerations or abrasions can occur if the doctor cuts too deeply. Scarring can result if the cuts require stitches.
- Developmental disabilities. If a C-section is delayed, the baby may be deprived of oxygen. Oxygen deprivation can cause cerebral palsy or other developmental disabilities. These conditions can result in the need for lifelong medical care.
- Premature birth complications. If the doctor is incorrect about the gestational age or the risks associated with allowing a pregnancy to continue, the baby can have undeveloped organs due to premature birth.
- Wrongful death. In rare cases, C-section complications can result in a stillborn baby or baby who dies shortly after birth.
Defining Medical Malpractice
Experiencing complications from a C-section doesn't necessarily mean that a doctor is guilty of malpractice. Complications can sometimes occur regardless of the doctor's skill. However, a doctor who deviates from the accepted standard of care for your condition can be found guilty of medical malpractice. Performing the surgery unnecessarily, cutting too deeply, improperly sterilizing tools, leaving surgical objects inside the body, or failing to monitor vital signs are just a few of the specific errors that could form the basis of your claim.
A malpractice claim for C-section complications can include the following types of compensation:
- Medical expenses related to treating complications for both mother and baby
- Anticipated future medical expenses, if the baby has been left permanently disabled or the mother will need additional surgeries to correct the doctor's error
- Lost wages if the mother was forced to miss additional work due to C-section complications
- Loss of future earning potential, if the baby has suffered a permanently disabling injury
- Pain and suffering, including both physical and emotional trauma
- Funeral and burial expenses, if the mother and/or baby died from the procedure
Seeking Legal Representation
An experienced malpractice attorney can advocate for both mother and baby in a C-section malpractice case. Your attorney can gather evidence, locate experts to testify on your behalf, and negotiate with the hospital's insurance company for the highest possible compensation.
Call today to schedule a free, no-obligation consultation with Neblett, Beard & Arsenault's dedicated legal team.
Can I sue for malpractice if I was denied medical treatment?
Doctors have a professional duty to provide care to ill or injured patients, but they are not obligated to provide treatment in every circumstance. Whether or not a refusal to treat can form the basis of a valid malpractice claim depends on several different factors.
Emergency Room Denial of Care
In the United States, people who visit emergency rooms must be provided with the care necessary to stabilize an emergency medical condition regardless of their health insurance status or ability to pay. This is outlined in the Emergency Medical Treatment and Active Labor Act (EMTALA).
The definition of an emergency medical condition is quite broad but includes conditions that if left untreated would:
- Place the person's health in jeopardy or risk harm to the unborn child of a pregnant woman
- Cause serious impairment to the person's bodily functions
- Cause serious dysfunction of a bodily organ or part
The emergency room is allowed to deny care if the doctor has examined you and determined that your condition is not a medical emergency.
The term patient abandonment is used to refer to the improper termination of a doctor-patient relationship. To qualify as patient abandonment, the following statements must be true:
- A doctor-patient relationship has been established through previous medical treatment.
- The doctor refused to provide care when the patient was still in need of medical attention.
- The refusal to provide care was so abrupt, the patient did not have time to find an alternative healthcare provider.
- Being without medical care caused the patient to suffer an injury or worsening of a medical condition.
Doctors are allowed to terminate a patient relationship for a number of reasons, including:
- The doctor has insufficient skills or training to treat the patient's condition.
- There are insufficient supplies or resources to provide the necessary treatment.
- There are ethical or legal conflicts in treatment.
- The patient refuses to comply with treatment recommendations.
- The patient engaged in improper behavior, such as making inappropriate sexual advances, verbally abusing the doctor, or being physically aggressive.
- The patient violates the doctor's policies regarding cancelled appointments.
If a doctor wants to terminate the relationship for one of these reasons, he must provide written notice and an explanation of why care will no longer be provided after a specific date. A recommendation to a new physician and prompt transfer of medical records are also required.
Under certain circumstances, the following actions can also be considered patient abandonment:
- The facility fails to provide care due to inadequate staffing.
- The medical staff neglects to contact a patient who has missed a vital follow-up appointment.
- The support staff fails to communicate an urgent question from the patient to the doctor.
- An appointment is scheduled so far in the future that a patient suffers preventable harm due to a worsening of a preexisting condition.
Filing a Medical Malpractice Claim
If you believe you have been improperly denied medical treatment, Louisiana law requires to you file a medical malpractice claim within one year of the offense.
Medical malpractice settlements include compensation for:
- Medical expenses related to treating the condition caused by the malpractice
- Anticipated future medical needs, if you've been left permanently disabled as the result of the malpractice
- Lost wages for any time you were unable to work due to a malpractice-related injury
- Loss of future earning potential due to a malpractice-related disability
- Pain and suffering, including both physical discomfort and emotional trauma
How Neblett, Beard & Arsenault Can Help
Although it's true that the vast majority of malpractice claims are eventually settled out of court, it would be a mistake to attempt to resolve a malpractice claim without legal representation. The malpractice insurer's goal is to continue to generate a profit, which often means offering a settlement that's below the level of compensation you deserve.
The experienced legal team at Neblett, Beard & Arsenault can advocate for your interests throughout the process of resolving your claim. Contact us online or call us directly at 318.588.6303 today to schedule a free, no-obligation consultation.
Can chiropractors be liable for medical malpractice?
Chiropractic care can help reduce pain and improve quality of life when done correctly. However, mistakes in chiropractic care can result in injuries that may form the basis of a medical malpractice claim.
About Chiropractic Malpractice
A chiropractor treats misalignments of the joints through targeted manipulation. Chiropractic care is considered a type of alternative medicine and is often sought as an alternative to drugs or surgery. A chiropractor must have an undergraduate degree in an approved area before completing a four-year doctorate degree in chiropractic care. A license is also required for the state in which the chiropractor wants to practice.
Some of the ailments commonly helped by chiropractic care include back pain, whiplash, osteoarthritis, athletic injuries, and fibromyalgia. However, improperly performed adjustments on a patient can result in a range of painful symptoms that affect one's ability to perform the activities of daily living. For example:
- Frequent headaches
- Worsening of chronic pain
- Facial paralysis
- Bladder paralysis
- Bowel paralysis
- Pinched arteries
- Nerve damage
- Spinal stenosis
- Disc herniation
- Muscle weakness
Cervical neck manipulation or cracking the neck is thought to be the riskiest procedure for a chiropractor to perform. However, adverse effects can be experienced with any type of adjustment.
A poor outcome does not necessarily mean malpractice has occurred. To meet the legal standard, the chiropractor needs to have provided negligent care. Examples of mistakes that could form the basis of a chiropractic malpractice claim include:
- Ignoring risk factors that indicate a particular treatment is not safe for a patient, such as performing spinal manipulation on someone with osteoarthritis or a patient taking blood thinning medication
- Performing procedures not authorized by one's professional license
- Failing to obtain informed consent for treatment
- Neglecting to refer a patient for specialized medical treatment when symptoms indicate a condition not helped by chiropractic care
To have a valid malpractice claim, you must be able to establish four key elements:
- The existence of a doctor-patient relationship
- A deviation from the standard of care that constitutes negligence
- Injuries resulting from the negligent care
- Specific damages that resulted from the injuries
One common difficulty in proving chiropractic malpractice is that you must be able to establish your symptoms are caused by the chiropractor's actions. In many cases, poor chiropractic care worsens a preexisting condition or causes symptoms that overlap with many ailments that could be attributed to other factors. You will likely need to rely on expert testimony to pinpoint the cause of your injury.
Another challenge in proving a chiropractic malpractice claim is that a chiropractor's work is judged based on the standard of what a reasonably competent chiropractor would do in the same circumstances. A chiropractor does not have the specialized training of a primary care physician, so he can't be expected to diagnose medical conditions that are outside the realm of what a chiropractor normally sees. This is why it's recommended that you seek a diagnosis from a primary care physician before beginning chiropractic care to treat a specific ailment.
A medical malpractice claim for chiropractic care can include:
- Medical expenses related to treating the symptoms or injury caused by your chiropractor
- Anticipated future medical needs, if you've been left permanently disabled
- Lost wages, if your chiropractic injury kept you from working
- Loss of future earning potential, if your injury will prevent you from working in the future
- Pain and suffering
Chiropractors, like other medical professionals, generally carry malpractice insurance to provide benefits to patients who have suffered harm due to negligent care.
The Value of Experienced Legal Representation
Malpractice law is very complex, and insurance companies are typically in no hurry to admit liability for your injuries. To protect yourself, it's vital that you seek skilled legal representation. An attorney can assess the true value of your case, line up evidence to support your claim, and negotiate with the insurance company on your behalf.
Neblett, Beard & Arsenault has extensive experience assisting Louisiana residents in obtaining the malpractice compensation they deserve. Contact us online or call us directly at 318.588.6303 today to schedule a free, no-obligation consultation.
When is failure to diagnose a stroke a form of medical malpractice?
When someone is suffering from a stroke, every second counts. Even a short delay in diagnosis can mean the difference between a full recovery and a permanent disability. If you or someone you love suffered a delay in diagnosis after experiencing a stroke, you may be entitled to medical malpractice compensation.
A stroke is a medical emergency that occurs when blood flow to an area of the brain is cut off. A lack of blood flow prevents oxygen from reaching brain cells, causing them to die.
A stroke can be caused by:
- A blocked artery (ischemic stroke)
- The leaking or bursting of a blood vessel (hemorrhagic stroke)
- Temporary disruption of blood flow to the brain (transient ischemic attack)
Strokes are the fifth leading cause of death in the United States. When victims survive, two-thirds are left with permanent disabilities related to memory and muscle control. The level of impairment a victim experiences depends on what area of the brain is affected and how quickly medical treatment is received.
Symptoms of a stroke usually occur without warning and are most severe when the stroke first happens. Symptoms of a stroke vary depending on what part of the brain is damaged but can include:
- Sudden and severe headache that is worse when you change positions, bend, or cough
- Changes in hearing, taste, touch, or the ability to feel pressure or temperature
- Clumsiness, lack of coordination, and/or trouble walking
- Difficulty writing and reading
- Difficulty speaking or understanding others
- Loss of control over bladder or bowels
- Weakness, numbness, or tingling on one side of the body
- Personality or mood changes
Diagnosing a Stroke
A stroke can be diagnosed with a physical examination, as well as several different diagnostic tests. These may include:
- CT or MRI of the brain
- Echocardiogram to see if the stroke might have been caused by a blood clot from the heart
- Angiogram of the head to check for blocked or bleeding blood vessels
- Carotid duplex ultrasound to see if the carotid arteries in your neck have narrowed
- Magnetic resonance angiography (MRA) or CT angiography to check for abnormal blood vessels in the brain
Strokes are most likely to be misdiagnosed when the victim reports mild or vague symptoms. A stroke can be misdiagnosed as:
- Normal age-related cognitive difficulties
- Migraine headache
- Diabetic hypoglycemia
- Food poisoning
Proving Medical Malpractice
A medical mistake is not necessarily malpractice. Failure to diagnose a stroke rises to the level of malpractice if you can prove the following:
- Duty. The defendant owed you a duty of care because he was acting as your healthcare provider.
- Breach of duty. The defendant failed to meet the required duty of care by deviating from the accepted medical standards for diagnosing a stroke.
- Damages. You suffered a stroke-related disability such as trouble speaking or partial paralysis.
- Causation. Your stroke-related disability would not have occurred if you had been able to receive a prompt diagnosis and the necessary medical treatment.
Causation is typically the most difficult element to prove in a stroke-related malpractice claim. You will need to produce multiple medical experts who can testify that your condition is related to a failure to diagnose the stroke in a timely manner.
Protecting Your Right to Compensation
A malpractice claim can include compensation for medical expenses, lost wages, and pain and suffering. If the case involves a victim who died from failure to diagnose a stroke, the surviving family members can seek compensation for medical expenses up to the time of death, loss of future income, pain and suffering up to the time of death, and loss of the companionship of the deceased.
The best way to protect your right to compensation for stroke-related medical malpractice is to retain an experienced malpractice attorney who can advocate for your needs throughout the settlement process. Neblett, Beard & Arsenault's legal team is dedicated to helping Louisiana residents receive the malpractice compensation they need to move forward with their lives after being harmed by a healthcare provider's negligence. Contact us online or call us directly at 318.541.8188 to schedule a free, no-obligation case review.
When is misdiagnosis a form of medical malpractice?
Misdiagnosis is a common basis for medical malpractice claims. However, it's important to keep in mind that a misdiagnosis doesn't necessarily mean your doctor is guilty of malpractice.
How Misdiagnosis Occurs
Despite all the advances in modern medicine, healthcare providers are still human. Errors in diagnosis can be made for many different reasons. Common risk factors for misdiagnosis include:
- The patient is a child or someone who has cognitive delays that affect his ability to accurately describe symptoms.
- The condition involves vague symptoms such as a stomach ache, sore throat, or a headache—indicating many different potential health problems.
- The patient suffers from a rare condition that the typical healthcare provider has little or no experience with.
- The communication between the doctor and the lab conducting the diagnostic tests is inadequate.
Common examples of conditions that are misdiagnosed include:
- Asthma misdiagnosed as recurrent bronchitis
- Benign tumor misdiagnosed as cancerous
- Celiac disease misdiagnosed as irritable bowel syndrome
- Heart attack misdiagnosed as a panic attack or severe indigestion
- Staph infection misdiagnosed as the flu
- Stroke misdiagnosed as a migraine
- Thyroid condition misdiagnosed as depression
Misdiagnosis can also refer to a delay in diagnosis. This can include having symptoms dismissed as the result of an overactive imagination when they were in fact signs of a serious medical issue.
Establishing A Malpractice Claim
A misdiagnosis doesn't always qualify as medical malpractice. To establish a successful malpractice claim, you must be able to prove that the misdiagnosis was the result of negligence and caused direct harm. If the error was one that a reasonable physician would have made given the circumstances, there is no evidence of negligence. If the error was quickly caught and did not affect your treatment options, there are no damages to seek compensation for.
The process of determining if a misdiagnosis rises to the level of negligence generally relies heavily on expert testimony. Healthcare providers specializing in the patient's condition will testify as to the appropriate standard of care given the symptoms that were present. Testimony from experts often focuses on differential diagnosis, which is a tool that doctors use to continually rule out different diseases until they find the correct cause of a patient's condition. It's a form of medical detective work, using the following steps:
- List the patient's symptoms.
- Conduct various diagnostic tests.
- Make a list of potential medical conditions that could be causing the patient's symptoms.
- Use test results and medical knowledge to eliminate or rule out causes of the symptoms until the correct diagnosis is made. The most serious or potentially life-threatening causes should be ruled out first before less serious conditions are considered.
Establishing harm requires showing that you suffered damages as the result of the physician's conduct. You may show evidence that the misdiagnosis caused you to experience one of the following:
- Increased risk of complications
- Decreased your risk of survival
- Required you to undergo more aggressive treatment than would have been necessary if your condition was diagnosed earlier
- Made you undergo needless but potentially harmful procedures such as chemotherapy or radiation
Protecting Your Right To Compensation
If you are successfully able to establish all of the elements necessary for a malpractice claim, you can seek compensation for:
- Medical care related to the malpractice injury such as additional surgical procedures, hospital stays, medication, and therapy
- Anticipated future medical needs, if the malpractice injury left you permanently disabled
- Lost wages for the time you were unable to work due to your injury
- Any applicable loss of future earning potential
- Pain and suffering
Since malpractice law can be quite complex, the best way to protect your right to compensation is to hire an experienced medical malpractice attorney who can gather evidence and negotiate on your behalf to ensure that you receive the highest possible settlement. The legal team at Neblett, Beard & Arsenault is committed to helping Louisiana residents advocate for their right to malpractice compensation after suffering harm related to a misdiagnosis. Contact us online or call us directly at 318.541.8188 to schedule a free, no-obligation initial case review.
Why are experts crucial to a malpractice case?
Expert testimony plays a vital role in the success of any medical malpractice case. Since there is a great deal of technical information involved in deciding whether a healthcare provider's conduct qualifies as negligent, courts rely on expert testimony to interpret the facts of a case.
How To Win A Medical Malpractice Claim
Experiencing a bad outcome from your medical care does not necessarily mean that you've been a victim of malpractice. To receive compensation for your injuries, you must prove your healthcare provider caused your injuries as the result of violating the standard of care for treating your condition.
Using Expert Testimony To Establish Standard Of Care
The primary role of an expert witness in a medical malpractice case is to establish the standard of care. This is a term that refers to what a reasonable provider with similar skill and experience would have done to care for the patient.
Some issues an expert may be asked to establish include:
- Which symptoms should be looked at when diagnosing a particular medical condition
- What diagnostic tests should be ordered when a patient seeks treatment with a specific set of symptoms
- How to correctly interpret test results
- If a lack of a diagnosis is reasonable based on the patient's symptoms
- If the patient's symptoms could have been reasonably misdiagnosed as another medical condition
- Whether the time between receiving a diagnosis and beginning treatment was reasonable
- What were the risks and benefits associated with a specific medication or course of treatment, given the patient's history
- What method should be used to perform a surgical procedure
- How a patient would be monitored for complications
Proving Causation With Expert Witnesses
To show causation, you must establish that your injuries are the result of the provider's negligence. In cases where surgical tools are left inside a patient or surgery is performed on the wrong body part, establishing causation is straightforward. In cases involving a serious illness such as lung cancer or complications from labor and delivery, establishing causation is much more complicated. Expert witnesses can also be vital in proving cases where there is some debate as to causation.
Qualifications For Expert Witnesses
An expert witness doesn't have to be a doctor who has treated you directly. However, not all healthcare providers qualify as expert witnesses. To be a suitable expert witness, you need to consider the provider's:
- Academic experience
- Board certification
- Expertise in a specific field of medicine
- Familiarity with protocols for your medical condition
- Experience in malpractice law
- Past experience serving as a witness
Since advances in medicine are being made every day, note that it's possible to encounter experts who disagree about a particular issue. Each side is allowed to submit his expert testimony for the court to consider.
Consequences For False Or Misleading Testimony
Expert witnesses once received absolute immunity from civil litigation related to their testimony. However, this is no longer the case. An expert who provides false or misleading testimony can also be subject to action from the state licensing board or discipline by professional medical associations.
Finding An Expert Witness
When you retain an attorney for your medical malpractice case, he will locate appropriate experts on your behalf. Experienced medical malpractice attorneys have developed networks of experts they can call who are suited to testify on a specific aspect of your case. Your attorney will also handle the fee for the expert's time and expenses, which will be reimbursed from the settlement you receive as part of your contingency fee agreement.
Neblett, Beard & Arsenault Can Help
As a victim of medical malpractice, you're entitled to compensation for:
- Medical care related to your malpractice injury
- Cost of any future medical needs related to your injury
- Lost wages during your recovery
- Any applicable loss of future earning potential
- Pain and suffering
The attorneys at Neblett, Beard & Arsenault are committed to helping Louisiana residents advocate for their right to malpractice compensation after being victimized by a healthcare provider's negligence. Contact us online or call us directly at 318.541.8188 to schedule a free, no-obligation initial consultation.