Generally speaking, medical malpractice claims are not more complicated if resulting from an elective procedure. Proving the standard of care is going to be the same process. At the same time, some jurisdictions have a different standard of care for emergency providers because those professionals have caused legislation to be passed on the rationale that they have less time to make decisions, and therefore, they shouldn’t be held to the same standard. That doesn’t apply in Louisiana. So, when it comes to an elective procedure, the same principles apply, whether or not they met the standard of care for their subspecialty applies whether it’s an elective procedure or something declared urgent or necessary.
If I Signed A Consent Form Before A Medical Procedure, Does That Mean I Can’t Win A Medical Malpractice Case?
Signing a consent form does not mean that you cannot win. Healthcare professionals attempt to put in a consent form everything from infection to death and include everything under the sun in terms of a recognized risk of a particular procedure. So, if you look at a consent form, many of them are boiler-plate style, and the practitioner or the nurse will write in some additional ones.
Again, that is driven by what a reasonable practitioner in that specialty says is a recognized risk. Often, some things are included in a consent form, and they’ve just gone too far, and it is not an identified risk of a particular procedure, but it’s a CYA situation on the part of the practitioner. In terms of lawyers, this is a very specialized area of the law in Louisiana. So only a few lawyers do it, meaning I’ll review many cases for medical malpractice. Those practitioners might think they have a good case, but some of them don’t realize the significance of a consent form. The reality is that they will throw the consent form in your face in terms of the defense. A lawyer should never downplay the significance of that.
In the consent form, when we talk about a recognized risk of a procedure, we speak about a procedure that is done appropriately. So when a procedure is done negligently, then the reasonable risk of these conditions doesn’t apply anymore because we’ve already established that you didn’t do the procedure as per the standard of care.
What Potential Damages Are Available Or Possible In A Medical Malpractice Case?
There is a statutory cap established in 1970 of $500,000 that has not gone up since then, which is unconstitutional, in my mind. A few years back, the Supreme Court declared our act unconstitutional on that basis, essentially saying that it deprives victims of medical malpractice of their constitutional right to be compensated and deprives them of their day in court. Even the actuaries for the insurance companies, medical practitioners, doctors, and hospitals came back with the finding that it was illogical.
For instance, I represented an oncologist who was the victim of malpractice at the hospital where she practiced, and her earnings were $400,000 a year; as a result of the medical negligence, she had significant scarring, she was in the hospital for months, her medical bills exceeded $800,000, she was out of work for a year-and-a-half but only one year of her time off of work was subsumed in the cap. She did not receive full compensation for her injuries, but the only thing above the cap that you can receive are Past and Future Meds. The statute says you can recover future medical expenses that can be part of a judgment up to the decision date. Those are collectible above the cap and then future medical expenses incurred after judgment or a settlement. Those are paid as they accrue. Sometimes the patient’s compensation fund will enter into a global settlement of those future medical expenses based on a life care plan or something of that nature.
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