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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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.
What does causation mean in a medical malpractice claim?
Establishing causation is a key element in a successful medical malpractice case, since the legal definition of malpractice requires a link between fault and injury. If you can't prove that your injuries or damages are the result of a healthcare provider's negligence, you won't be eligible for compensation.
Cause in Fact or Actual Cause
Cause in fact or actual cause is a type of causation in which the plaintiff's injuries are viewed as a foreseeable result of the defendant's actions. This is sometimes called the "but for" test: the patient would not have been injured but for the healthcare provider's malpractice.
Proving cause in fact or actual cause is often difficult. For example, the elderly, children, and people with compromised immune systems are more at risk for hospital acquired infections than other people. Even if all members of their healthcare team take reasonable precautions to prevent infection, patients may still become ill. Or, if the infection occurs less than 48 hours after being admitted to the hospital, it may be due to a completely unrelated cause.
Proximate cause considers whether it's possible that other factors may have contributed to the plaintiff's injury. Proximate cause may become a factor in a malpractice claim when the patient suffers from a serious illness that could have worsened even if the doctor or healthcare provider had followed standard medical practices to the letter.
For example, proximate cause might be an issue in a malpractice claim if you're seeking compensation for a delayed cancer diagnosis or a mistake in the administration of chemotherapy drugs. It's not enough to simply prove that the provider made a mistake in handling your medical care. You must demonstrate that this mistake affected the outcome of your case. If your cancer was already advanced or of a difficult type to treat, the defendant may argue that deviations from care can't be linked to your current condition.
Res Ipsa Loquitur
The legal doctrine known as res ipsa loquitur, which comes from a Latin phrase meaning “the thing speaks for itself,” applies when a patient's injury is one that wouldn't normally occur without negligence. For example, if a patient suffers injuries from having a surgical tool or sponge left inside after a procedure was performed, this type of error would not have happened if proper protocols were followed.
Proving Causation With Expert Witnesses
Proving causation in a medical malpractice case can be quite complicated. Typically, you'll need to have several expert witnesses testify on your behalf. These experts should have training in a medical specialty related to your condition and be able to offer insight into diagnosis, treatment, and how errors would affect patient outcomes. If you were treated by a team of providers, experts may be needed to establish that the defendant is the provider who made the mistake constituting the basis of your claim.
The Value of Experienced Legal Representation
Winning a malpractice case requires you to successfully prove that the defendant, while acting in a professional capacity as a healthcare provider, caused injury or other damages to you as the result of violating the medical standard of care for treating your condition. If you can prove these elements, you'll be awarded compensation for:
- The cost of medical care related to the malpractice injury, as well as any applicable future medical needs
- Lost wages during your recovery and any applicable loss of future earning potential
- Pain and suffering
Malpractice cases are generally settled out of court, but insurance companies are known for being more interested in protecting their bottom line than in offering adequate compensation. To protect your right to a fair settlement, hiring a skilled medical malpractice attorney is a must.
The attorneys at Neblett, Beard & Arsenault are dedicated to assisting Louisiana residents who've been the victims of medical malpractice obtain the compensation they're legally entitled to receive. Call to schedule a free, no-obligation initial consultation.
What determines the standard of care for medical malpractice claims?
In a malpractice case, establishing the standard of care is a crucial part of proving negligence. For a doctor or care provider to be negligent, he must have deviated from the expected action of a reasonable professional in his position.
Defining the Standard of Care
The standard of care refers to the actions that should have been taken by a provider in the defendant's field of expertise, given the patient's symptoms at the time of treatment. The standard of care is sometimes referred to as the customary practices of the average physician.
Some examples of conduct that would be consistent with the standard of care include:
- Checking for potential drug interactions before prescribing a new medication
- Discontinuing medication if the patient reports dangerous side effects
- Obtaining informed consent for a risky experimental treatment
- Taking precautions to prevent falls in patients who complain of dizziness or fainting spells
- Ordering an MRI or a CT scan to check for bruising or bleeding in the brain after a patient reports symptoms that could indicate a concussion
- Ordering a biopsy of a suspicious mole or skin growth
- Following up on abnormal lab test results
- Monitoring a surgical wound for signs of infection throughout the recovery period
- Referring a patient who expresses thoughts of self-harm or suicide for a full psychiatric evaluation
- Referring a patient to a different care provider if the patient's condition is outside the doctor’s area of professional expertise
In a malpractice case, expert testimony is used to establish the standard of care. This means, doctors or care providers practicing in the same specialty will testify as to what tests should have been ordered, how a procedure should have been performed, or how complications should have been addressed. In cases where there is a difference of opinion among members of the medical community, several different experts will likely be called to testify on both sides.
Accounting for Complications in Standard Medical Treatment
When determining if you have a valid malpractice case, it's important to keep in mind that the term standard of care recognizes that even a well-trained doctor or care provider who does everything by the book can't guarantee a perfect outcome. Complications and poor outcomes are sometimes unavoidable given the limitations of modern medicine. A case only qualifies as malpractice if the defendant's action or lack of action is the cause of the plaintiff's condition.
Protecting Your Right to Compensation
To receive compensation in a malpractice case, you must establish the following four key elements:
- The defendant owed you a duty of care while acting in a professional capacity as a healthcare provider.
- The defendant violated the standard of care when treating your condition.
- You have suffered an injury resulting in compensable expenses.
- Your injury was caused by the defendant's violation of the standard of care.
If you can prove these elements, you're entitled to compensation for the following expenses:
- Medical care related to the malpractice injury
- Anticipated future medical needs, if your injury has left you permanently disabled
- Loss of wages from the time you were unable to work due to your injury
- Loss of future earning potential, if your injury has left you permanently disabled
- Pain and suffering
If the malpractice resulted in a patient's death, eligible family members can file a malpractice claim seeking compensation for medical expenses up to the time of death, funeral and burial costs, loss of the decedent's future earnings, and loss of future companionship with their loved one.
Although the vast majority of malpractice cases are settled out of court, insurance companies are typically more interested in protecting their bottom line than in providing injured patients with adequate compensation. To protect your rights, hiring a skilled medical malpractice attorney is essential.
Neblett, Beard & Arsenault's legal team is committed to helping Louisiana residents who've been the victims of medical malpractice receive the maximum compensation they're entitled to under the law. Contact us online or call us directly at 318.541.8188 to schedule a free, no-obligation initial case review.
What are the most common types of medical malpractice?
Although the majority of people who seek medical care receive the appropriate treatment and experience no complications, medical malpractice continues to be a significant public health issue. The most common types of medical malpractice are errors in diagnosis, medication errors, surgical errors, and pregnancy or childbirth errors.
Errors in Diagnosis
Obtaining an accurate diagnosis for a patient isn't always an easy task. Many medical conditions can have symptoms that overlap or that aren't always present in every patient. Poorly trained doctors or providers who don’t order the appropriate diagnostic tests can cause harm to patients by providing an incorrect diagnosis.
The most commonly misdiagnosed conditions are:
- Heart attack
- Heart disease
- Blood clot
- Tumors or masses inside the body
Diagnosis errors are usually caught at a later date, often when the patient doesn't respond to the prescribed treatment or seeks a second option. The length of delay in obtaining a correct diagnosis plays a key role in determining the patient's eligibility for compensation, since longer delays are more likely to limit a patient's options for treatment.
Americans are taking more prescription drugs than ever before, so it's not surprising that medication errors are a common form of medical malpractice. Examples of this type of error include:
- Giving a patient the wrong medication
- Failing to dispense the appropriate medication at the correct time
- Giving an incorrect dosage
- Failing to notice a harmful drug interaction
Surgical errors that may constitute the basis of a malpractice claim include:
- Performing the wrong operation
- Performing an unneeded operation
- Failing to obtain informed consent before the procedure
- Damaging a nerve during surgery
- Failing to control bleeding
- Leaving medical sponges or surgical instruments inside the patient
- Giving the patient an incorrect dose of anesthesia
- Failing to move the patient periodically during surgery to avoid putting too much pressure on certain parts of the body
- Giving the patient an infection by failing to follow proper sanitation procedures
- Knowingly using defective equipment
Surgical errors can occur even during routine procedures. However, spinal surgery and gastrointestinal surgery are associated with the highest numbers of surgical errors.
Pregnancy and Childbirth Errors
Although modern medicine has made pregnancy and childbirth fairly safe, there are many complications that can occur during this time. When a doctor isn't mindful of potential complications, both the mother and her child can suffer harm. Examples of pregnancy and childbirth related malpractice include:
- Misdiagnosis of placental abnormalities
- Failure to monitor or recognize the signs of gestational diabetes
- Failure to stop an excessively long labor
- Surgical errors during a C-section delivery
- Nerve injuries to the baby during delivery
Next to general surgeons, OB/GYN physicians have the highest number of malpractice claims per year.
Proving a Malpractice Case
Experiencing a bad outcome is not proof of medical malpractice. To win your malpractice claim, you must establish the following four key elements:
- Duty. The healthcare provider had a duty of care or doctor/patient relationship with you.
- Breach of Duty. The provider failed to deliver care that is consistent with recognized medical treatment standards for your condition.
- Damages. Your condition worsened or you experienced other medical complications.
- Causation. Your damages are directly related to the provider's conduct and not attributed to some other cause.
A malpractice settlement typically includes funds for medical costs, lost wages, and pain and suffering. Cases involving disabled children often result in the highest settlements, due to the anticipated cost of their future medical needs.
Since malpractice law is so complex, retaining legal representation is the best way to ensure that your rights are protected. Your attorney can line up the necessary documentation about your injury, locate relevant expert testimony, and negotiate with the insurer on your behalf. In many cases, a malpractice attorney will be able to settle the case without the time and expense of a court trial.
The experienced attorneys at Neblett, Beard & Arsenault are committed to helping Louisiana residents who've been the victims of medical negligence receive the compensation they need to move forward with their lives. Contact us today to schedule a free, no-obligation case review.
What is oncology malpractice, and how can I pursue a case against my oncologist?
Oncologists are doctors who specialize in the diagnosis and treatment of cancer. Most focus on one subtype of cancer such as pediatric oncology or gynecological oncology. Like other types of healthcare providers, oncologists can be sued for malpractice if they fail to follow the accepted standards for patient care.
Elements of a Successful Malpractice Case
If you believe your oncologist is guilty of malpractice, you must prove four separate elements to win your case:
- Duty. This is established simply by proving you had a doctor-patient relationship with the oncologist you are accusing of malpractice.
- Breach of Duty. When a doctor fails to abide by the appropriate standard of medical care, he is considered negligent. Determining the appropriate standard of care for your type of cancer will likely require testimony from several medical experts who can provide specific examples of mistakes your oncologist made.
- Causation. To win a malpractice claim, you must prove that your oncologist's breach of duty caused you harm. This might include requiring additional procedures to correct the mistake or limiting your future treatment options due to a delay in diagnosis.
- Damages. The term damages is used to refer to harm you’ve suffered as the result of the oncologist’s conduct. This can be physical pain, psychological trauma, or added medical costs.
A Bad Outcome Isn’t Necessarily Malpractice
Cancer treatment requires evaluating many different variables, and patients don’t always respond as desired. Even if you’ve received a poor prognosis, this doesn’t necessarily mean your oncologist is guilty of malpractice.
Malpractice requires specific deviations from the accepted standard of care for cancer treatment. Examples of errors that could form the basis of a malpractice claim include:
- Failing to diagnose cancer
- Misdiagnosing cancer as another less serious condition
- Mistaking a benign tumor for a malignant tumor
- Prescribing or administering the wrong medication
- Failing to monitor the success of a treatment with the appropriate lab results
- Misinterpreting the results of diagnostic tests such as a CT or PET scan
- Failing to perform comprehensive cancer surgery or obtaining clean margins during surgery
- Neglecting to make arrangements for appropriate follow-up care
- Failing to obtain informed consent for treatment
Proving Causation Depends on Your Type of Cancer
To win a malpractice claim, you must be able to establish that the oncologist’s conduct caused you to suffer harm. An error that is quickly corrected or doesn't affect your overall prognosis doesn't rise to the legal standard for malpractice.
However, some types of cancer are much more treatable than others. For example, pancreatic, liver, lung, and esophageal cancer all have fairly high mortality rates. Many patients who receive the best possible medical care may still not survive. In these cases, an oncologist's liability for a delay in diagnosis or mistreatment is substantially less that it would be for a patient diagnosed with a more treatable type of cancer.
For highly treatable types of cancer such as prostate, thyroid, or skin cancer, liability may depend on how advanced the cancer is. An error that occurs before a tumor has had a chance to grow or spread to other organs is less likely to affect the overall prognosis than one occurring when treatment options are more limited.
Protecting Your Legal Rights
In most cases, Louisiana law requires a malpractice claim to be filed within one year of the action forming the basis of the suit. If the error isn't discovered immediately, the deadline is extended to three years after the action that constitutes the malpractice claim. If a malpractice claim involves a child diagnosed with cancer, a parent or legal guardian must file the claim on his behalf. When a cancer patient has passed away, it's possible for a spouse, adult child, or parent to file a wrongful death malpractice claim.
The legal team at Neblett, Beard & Arsenault is dedicated to helping Louisiana residents who've suffered harm due to oncology malpractice receive the compensation they deserve. Contact us online or call 318.588.6303 to schedule a free, no-obligation case review.
What is psychiatric malpractice, and how do I pursue a case?
Psychiatrists play a vital role in helping patients who suffer from depression, anxiety, and other mental health conditions. However, when they cause harm by failing to provide appropriate care, they can be found liable for malpractice.
Types of Errors That Could Constitute Psychiatric Malpractice
The relationship between a patient and psychiatrist depends on a number of factors, including subjective ideas of personal comfort. Simply not liking your psychiatrist or believing that seeing another provider for your therapy would be more effective doesn't make your psychiatrist guilty of malpractice. The legal definition of malpractice requires your psychiatrist to provide substandard care that deviates from widely established guidelines from respected professional groups such as the American Psychiatric Association.
Some examples of conduct that could form the basis of a malpractice claim include:
- Neglecting to perform a suicide risk assessment for a depressed patient
- Diagnosing improperly
- Making medication errors
- Ignoring signs of serious side effects with mood altering medication
- Creating false memories of abuse or trauma
- Neglecting to make arrangements for appropriate follow-up care
- Starting treatment before obtaining informed consent
- Sharing private patient information without consent
- Taking advantage of a patient's trust by beginning an inappropriate sexual relationship
Types Of Compensation You Can Receive
A psychiatric malpractice claim can involve many different types of compensation. For example:
- Cost of medical care such as emergency room care following a suicide attempt due to improperly prescribed medication
- Loss of wages or future earning capacity, if the psychiatrist's conduct has limited your ability to earn a living
- Pain and suffering
Louisiana limits compensation in medical malpractice cases to $500,000, but this cap doesn't apply to medical expenses. Settlement amounts of over $100,000 are paid from the state's Patient Compensation Fund.
Building a Malpractice Case Against Your Psychiatrist
The following four separate elements must be proven in any malpractice claim:
- Duty. To be guilty of malpractice, the psychiatrist must have owed you a duty of care. This is proven by establishing evidence of a doctor-patient relationship through bills for past sessions or records of your appointment times.
- Breach of Duty. The term breach of duty refers to deviations from the accepted standard of care for a specific condition. In a malpractice case, several different experts may be called to testify as to what the best course of treatment would have been given the unique circumstances surrounding your case.
- Causation. A malpractice case requires that your psychiatrist’s conduct caused you direct physical or mental harm. In cases where an error was quickly discovered or the psychiatrist's actions didn't affect your overall prognosis, no malpractice has been committed.
- Damages. Damages are the specific harm you've suffered as a result of your psychiatrist’s conduct. Wages and medical expenses are called economic damages because they have a cost that can be verified with documentation. Pain and suffering is a category of non-economic damages.
Seeking Legal Representation For Your Malpractice Claim
Louisiana law typically requires you to file a malpractice claim within one year of the medical treatment that forms the basis of the suit. In cases where a care provider's error isn't immediately discovered, the deadline is extended to three years.
Most psychiatric malpractice suits involve the patient bringing the legal action, but sometimes another party is needed to begin the case. When an adult patient is determined to be not competent to bring legal action due to a mental disability or impairment, a third-party guardian can file on his behalf. Parents or legal guardians must file suits on behalf of children under 18, since minors have no legal standing in a court of law. In a malpractice case involving a patient who committed suicide, the wrongful death action is brought by the deceased person's next of kin—such as a spouse, adult child, or parent.
Since malpractice cases involve multiple complex issues, having access to skilled legal representation is a must. Neblett, Beard & Arsenault is committed to helping Louisiana residents who've suffered harm due to psychiatric malpractice receive the compensation they deserve. Contact us online or call us at 318.588.6303 to schedule a free, no-obligation initial consultation.
When is a dentist guilty of malpractice?
Many people overlook the importance of dental health until they experience a problem that affects the appearance of their smile or they’re in severe pain. If you believe a problem with your teeth and gums is the result of dental malpractice, you may be entitled to compensation.
Understanding Dental Malpractice
Good dental health is more than just a matter of having an attractive smile. Without proper dental care, patients can experience a number of complications. For example:
- Nutrition may suffer when a person can't chew solid foods properly.
- Speech may become difficult to understand.
- Severe pain can make it difficult to concentrate on daily activities.
- Bacteria in the mouth can travel throughout the body and cause serious or potentially life-threatening infections.
Medical malpractice lawsuits hold healthcare providers responsible when a patient suffers harm as the result of negligence in diagnosis or treatment. Although the majority of malpractice suits involve doctors and surgeons working in hospitals, dentists can also be held liable for malpractice in some circumstances.
Examples of situations that would be considered the basis of a dental malpractice claim include:
- Improper extraction of teeth
- Improper administration of anesthesia during oral surgery
- Failure to diagnose or treat gum disease or a similar oral health condition
- A delay in diagnosis of oral cancer
- Failing to refer a patient to the appropriate specialist
- Neglecting to supervise the actions of hygienists and other employees involved in patient care
- Poor sanitation for instruments resulting in infection to the teeth, gums, or jaw bone
- Injuries to the teeth, gums, or jaw bone from faulty root canals, crowns, and bridge prostheses
- Lack of informed consent before a procedure
Successfully Proving a Malpractice Claim
Only specific types of conduct meet the legal definition of medical malpractice. It's not enough that you're unhappy with the dentist's work or that you suffered a poor outcome from a procedure. To prove malpractice, you need to establish the following four elements:
- Duty. You were the dentist's patient, and he had a professional duty to treat you.
- Breach of Duty. The dentist failed to live up to the accepted standards of professional care.
- Damages. You suffered verifiable harm such as damage to the teeth and jaw bone.
- Causation. Your damages were the result of the dentist's failure to live up to the standard of care for your condition.
Expert testimony regarding the accepted standard of care for your condition will prove crucial in establishing damages and causation. Testimony is given as part of the discovery process, which will also include submitting medical records and documentation of expenses such as lost income.
Types of Dental Malpractice Compensation
Dental malpractice claims can include the following types of compensation:
- Medical expenses related to the harm you've suffered as the result of the dentist's actions
- Any applicable loss of wages if you missed work due to your injuries
- Pain and suffering, including the trauma of any permanent alterations in your appearance due to the dentist's work
Louisiana is unique in that it limits the total damages a plaintiff can receive to a maximum of $500,000. However, future medical expenses are not subject to this cap.
Statute of Limitations
Dental malpractice claims, like other malpractice suits, must abide by the state’s statute of limitations. Louisiana requires malpractice claims to be filed within one year of the date of the incident forming the basis of the case. If the plaintiff didn’t discover his injuries right away, the deadline is one year from the date of discovery or no more than three years after the incident itself.
Neblett, Beard & Arsenault Can Help
If you believe you've been the victim of dental malpractice, the legal team at Neblett, Beard & Arsenault can advocate for your right to compensation. Cases are accepted on a contingency fee basis, which means there is no upfront expense associated with retaining legal representation. Please call today to schedule a free, no-obligation initial consultation.
When is an eye doctor guilty of malpractice?
Your vision is essential for providing you with important information about the world, and a loss of vision can be devastating. You can suffer serious emotional damage as well as a disconnect with the world as you’ve known it. If your vision has been compromised because of an ophthalmologist’s negligence, you may be entitled to compensation through a medical malpractice claim.
Understanding Ophthalmology Malpractice
The eye is a tremendously complex organ that works much like a camera. When rays of incoming light are refracted or bent by the cornea through the pupil, the lens is responsible for making sure the rays are focused at the back of the eye in an area known as the retina. The image is initially upside down, but the retina converts this image into electrical impulses transmitted to the brain via the optic nerve. When the brain translates these impulses, the image is converted back into an upright position.
The field of ophthalmology includes many different specialties:
- Pediatric ophthalmology specialists treat children with genetic conditions that cause vision loss or impairment.
- Cornea and external disease specialists focus on treating patients with refractive errors through corneal transplants and other surgical procedures.
- Glaucoma specialists treat patients experiencing visual difficulty when the nerve connecting the eye to the brain has been damaged due to high eye pressure.
- Neuro-ophthalmology specialists treat issues that overlap with the field of neurology such as optic nerve problems, visual field loss, unexplained visual loss, double vision, and abnormal eye movements.
- Ophthalmic pathology specialists look at tissue from the eye and surrounding areas for signs of disease.
- Ophthalmic plastic surgery specialists perform eyelid surgery, orbital surgery, and lacrimal surgery to alter a patient's physical appearance.
Ophthalmology malpractice cases can involve any position in which an eye doctor's conduct causes an injury to the eye or harm to the patient's vision. For example:
- Failing to obtain informed consent before a risky surgical procedure
- Delaying a diagnosis or a failure to diagnose a condition that results in vision loss or impairment
- Delaying treatment or a failure to treat that results in vision loss or impairment
- Reusing a single-use instrument and creating a risk of infection
- Abandoning a patient
- Failing to stay current on best practices for treating specific conditions
- Neglecting to refer a patient to a qualified expert when the condition is outside the eye doctor’s training and experience
- Making medication errors such as giving the wrong medication or the wrong dosage of a glaucoma treatment
- Making surgical errors such as operating on the wrong eye when performing cataract surgery or LASIK eye surgery
Elements of a Successful Malpractice Claim
To win your ophthalmology practice claim, you need to establish four key points: duty, breach of duty, damages, and causation. Here is a brief explanation of each:
- Duty means that the plaintiff was under the care of the defendant.
- Breach of duty refers to the defendant's failure to provide medically appropriate care according to the accepted standards of ophthalmology.
- Damages are the injuries you suffered as the result of the defendant's conduct such as blurred vision or blindness.
- Causation refers to the direct cause and effect relationship between your condition and the ophthalmologist's conduct.
Of all these elements, establishing damages and causation are the most difficult. Testimony from other eye doctors with experience in treating patients with similar conditions to yours will prove vital in building a solid case.
Compensation for an Ophthalmology Malpractice Claim
An ophthalmology malpractice case can result in a sustainable settlement, since compensation is based on many different factors, including:
- Past medical expenses
- Anticipated future medical expenses
- Lost wages and/or estimated loss of future earning capacity
- Disability-related expenses such as cost of added household help
- Pain and suffering
- Loss of enjoyment of life due to vision loss
- Psychological trauma associated with vision loss
Seeking Legal Representation
Malpractice law is complex, so it's vital that you enlist the services of an experienced attorney who can advocate for your right to a fair settlement. Neblett, Beard & Arsenault’s legal team is devoted to helping Louisiana residents who've been the victim of ophthalmology malpractice receive the compensation they need to move forward with their lives.
How does informed consent affect a medical malpractice claim?
Since certain types of medical care carry the risk of serious side effects, healthcare providers are often required to obtain informed consent before proceeding with a treatment plan. If consent is not obtained and the patient suffers harm as a result, the doctor can be held liable for medical malpractice.
What Is Informed Consent?
Before a patient begins treatment for a serious illness such as cancer, his healthcare providers are required to obtain informed consent. This means, the patient must agree to the treatment after receiving all of the information necessary to make an educated decision.
The process of obtaining informed consent requires the following multiple steps:
- The doctor tells the patient about the risks and benefits of the treatment. He may also suggest websites or provide pamphlets the patient can use to learn more about the proposed course of treatment.
- The doctor explains the risks and benefits of alternative treatments, as well as the option of receiving no medical treatment at all.
- The doctor answers any questions the patient has.
- The patient discusses the treatment options with family, friends, or other trusted advisors.
- The patient shares his decision with the doctor and signs a form authorizing treatment to begin or a form indicating that the treatment is being refused.
A doctor can't simply ask the patient to sign a consent form without going through the other steps of this process. Without providing all of the information, the patient's consent is not valid.
If you've determined that you do not wish to receive the treatment that your healthcare provider recommends, you may be asked to sign an informed refusal reform. Your signature on this document indicates that you've considered the risks and benefits of the treatment and have opted not to follow your provider's medical advice.
When Is Informed Consent Not Required?
Informed consent is not required in every circumstance, including:
- If it’s an emergency situation. For example, if medical professionals are treating life-threatening injuries sustained in an auto accident, informed consent is not required. Emergency room care providers are expected to do whatever their training suggests is necessary to save the patient.
- If the patient is emotionally fragile. Doctors can provide vague information about risks to patients who are considered so emotionally fragile that they would likely refuse needed treatment. However, the doctor must be able to demonstrate a clear reason for not disclosing the risks.
- If a second medical problem is found. If a patient has already agreed to a surgical procedure and the doctor finds a second problem that can be fixed during the course of the first operation, informed consent is not required for the additional procedure.
When a Patient Cannot Give Consent
If the patient is unable to give consent because he is physically and/or mentally incapacitated, someone must give consent on his behalf. In most cases, this is a spouse or other family member. However, court-appointed guardians may also be used to provide consent for treatment.
Children under the age of 18 are not allowed to give consent for treatment, even in the case of a teen who fully understands the risks and benefits of a procedure. A parent or legal guardian must provide consent on his behalf.
How Does This Relate to Medical Malpractice?
A doctor can be sued for medical malpractice if informed consent is not obtained when required, and the patient would not have agreed to the treatment if he had been fully aware of the risk. However, patients can only sue for the malpractice if they suffered actual harm due to the doctor's conduct. This means you have no malpractice case if your doctor failed to obtain informed consent for a surgery that carried the risk of paralysis or nerve damage unless you experienced one or both of these complications.
If you have a claim for medical malpractice, you can seek damages for the cost of medical care related to the doctor's conduct, any applicable lost wages, and pain and suffering associated with your injuries. Neblett, Beard & Arsenault is dedicated to helping Louisiana residents who've been harmed by a healthcare provider's negligence receive the compensation they need to move forward with their lives. Contact us online or call 318.541.8188 to schedule a free, no-obligation case review.