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New Jersey Medical Malpractice: Has It Happened To You?

Healthcare workers are essential, and they provide much-needed treatment for painful conditions and even save lives. But just like any profession, medical professionals make mistakes. Because of the nature of the work, a doctor or nurse’s wrong choice can negatively affect your mental and physical health. Worst-case scenario, it may cause permanent injuries or even lead to death, and you may be entitled to compensation as a victim of medical malpractice. 

However, determining medical malpractice can be confusing for patients because not every healthcare provider’s mistake is considered malpractice. Our legal guide will give you a better understanding of medical malpractice and things to be aware of as a patient. 

Types of Medical Malpractice

Doctor covering face looking at xrayImproper Diagnosis: If a doctor gets a diagnosis wrong, it might be medical malpractice, depending on the circumstances. For example, if a woman goes to the doctor with a lump in her breast and is told it’s benign, only to find out later it was cancerous all along, she would likely have grounds for a medical malpractice suit. The inverse is also true. If someone is told they have a malignant tumor and undergoes an invasive procedure and is later told they never had cancer, it may be considered malpractice. 

In an instance that made international news, Minnesota woman Linda McDougal had a double mastectomy. This major surgery sometimes takes months to recover from entirely. She was told she had an aggressive form of breast cancer, but two days after surgery, McDougal found out the hospital mixed up patients and that she never had cancer. She later sued the hospital for pain and suffering. 

Failure to Diagnose: Even though you trust your doctor, you may feel you aren’t taken seriously when describing a problem. Let’s say you go to a medical professional with back pain, and they give you a muscle relaxant and send you on your way. Then, you find out you actually have a spinal cord abscess, a rare condition that causes neurological complications. You may suffer because the doctor did not diagnose you properly. If the doctor doesn’t do further testing and long-term damage results, it may be malpractice. 

Another example: You go to the emergency room with a terrible headache and receive a migraine diagnosis and are then sent home with medication to treat it. The hospital team missed that you have a ruptured aneurysm, a medical emergency that needs immediate treatment, and only has a 50% survival rate. If you go home and die because of the failure to diagnose, your family may have grounds to sue for medical malpractice.  

Medication Errors: Researchers estimate 7,000 to 9,000 people in the U.S. die every year from medication errors. If you’re a hospital patient and a nurse or pharmacy technician gives you medicine, you probably take it without a second thought. Same for filling a prescription at a pharmacy — we assume nothing will go wrong. It’s normal to trust our doctors, but millions of people are affected by medication errors every year. It’s hard to understand how these mistakes happen, but there are a few common causes. 

  • Illegible handwriting: It’s a long-running joke that doctors have awful handwriting, but it can have real-world consequences. If someone cannot read a prescription or instructions from a doctor, they may inadvertently make an error. Some nurses or technicians may be afraid to bother a doctor for clarification, leading to medication errors. 
  • Dosage errors: Whether due to an automated dispenser causing errors or a healthcare worker not double checking before giving medication, dosing errors are widespread. Taking too much or too little medicine or taking it at the wrong frequency can profoundly affect your health.
  • Wrong drug: There are thousands of prescription medications on the market today, and many of them have nearly identical names. Take acetohexamide (used to treat diabetes) and acetazolamide (used to treat altitude sickness). Or sulfadiazine (an antibiotic) and sulfasalazine (an ulcerative colitis medication). It’s easy to make a mistake, especially when many medical professionals are overwhelmed and pressed for time.

Concentrated Surgical team operating a patient in an operation theater.Surgical Mistakes: About 51.4 million surgeries are performed in the United States every year, and roughly 4,000 will have surgical mistakes. This may sound like a low percentage, but it’s worth considering that the medical field calls these mistakes “never events” because they should never, ever happen. Common surgical mistakes include leaving a foreign object inside a patient after surgery, performing the wrong surgery, and operating on the wrong part of the body. Another instance that can be unbearably painful and cause severe distress for patients is anesthesia error, which involves a general anesthetic not working as it should.  

Injuries at Birth: Childbirth is a powerful, positive experience, but for some women, it can be traumatic. Birth-related malpractice occurs when there is damage to the mother or child due to negligence. Pregnant women are frequently diagnosed with preeclampsia (high blood pressure). If a doctor doesn’t monitor the condition properly, it can lead to seizures, strokes, or even death. When a baby is injured during labor or delivery and can be traced back to a medical professional’s choices, it may also count as medical malpractice.  

Differential Diagnosis: When you go to a doctor with symptoms, they should do everything in their power to figure out what’s wrong. This is called differential diagnosis, and it means that medical professionals have a responsibility to be diligent in their approach. For example, if you go to a doctor and complain of a cough and fever, a doctor may send you home and say that you have a cold. But the doctor needs to make sure it isn’t something more serious, like COVID-19 or bronchitis, before giving an official diagnosis. A medical professional should take every step to rule out other conditions, perform multiple tests if needed, and make sure the conclusion they arrive at is the right one. 

Nursing Negligence: If you’ve ever been admitted to a hospital, you likely spent more time with nurses than physicians, as nurses usually care for patients directly. If you need medication or have pain, you may be instructed to page a nurse to your room. Common types of nurse negligence include not calling in the attending physician when necessary, administering the wrong dosage of medicine, or failing to monitor a patient properly. 

How To Know If It’s Medical Malpractice

desk with a gavel and stethoscope and a clipboard showing medical malpracticeAfter having a negative experience at a doctor’s office or hospital, you may wonder whether what happened amounts to medical malpractice. Before deciding whether to proceed and pursue legal action, there are a few questions you can ask to determine whether you have experienced medical malpractice.

Was it negligent behavior? To start, the medical professional must have acted negligently. If they make a decision that another doctor would not have made in an identical situation, you could have a malpractice case. But a simple mistake may not be enough to be considered malpractice. You must prove that the medical standard of care was not met and that the medical professional made decisions that a competent provider would not make.  

In New Jersey, a plaintiff also has to obtain an affidavit of merit or a statement from a medical expert in the same field as the healthcare professional, affirming that the care received doesn’t meet the standard of care expected of doctors. This is an attempt to reduce lawsuits by making it more difficult to file a medical malpractice suit. The exception to this rule is if the behavior was so egregious that an average person would be able to tell that wrongdoing occurred without any input from an expert. 

Were you negatively affected? If a medical professional’s actions don’t lead to physical, emotional, or mental harm, you will have a more challenging time proving that it’s medical malpractice. It varies case-to-case, but many require testimony from unbiased medical experts to explain the damage caused. If you’re already injured, and a doctor acts negligently but doesn’t worsen your existing condition, you would likely not qualify for a medical malpractice lawsuit.

What damage was caused? When pursuing a medical malpractice claim, the court will look at what damage was caused. Physical harm, out-of-pocket medical expenses, and loss of ability to work can all be cause for monetary damages. If you cannot prove that you have tangible losses from the medical malpractice, it may be more difficult — but not impossible — to litigate. 

While physical harm can be revealed in medical tests and examinations, emotional distress is harder to prove. A New Jersey state appeals court recently ruled that someone must show evidence of emotional distress with testimony from a doctor or mental health expert. An unpleasant medical experience can affect you mentally, but that does not necessarily mean you will be eligible for a medical malpractice suit if that is the only negative outcome. 

Recent Examples of Medical Malpractice 

Let’s look at recent examples of medical malpractice to see what qualifies and how medical providers have been held accountable. 

Medical Malpractice at Johns Hopkins Hospital: In 2014, Johns Hopkins Hospital paid $190 million to 7,000 women who were the victims of OB/GYN Dr. Nikita A. Levy after it was revealed that Levy secretly recorded his patients. Levy died by suicide days after his behavior was exposed, but the hospital was still sued by patients who alleged that they failed to monitor the doctor correctly. 

Medical Malpractice at West Suburban Medical Center: A Chicago woman was awarded $101 million after suing the hospital where she gave birth. In 2014, a pregnant patient Tequila Snow visited West Suburban Medical Center, worried about decreased fetal movement. Even though she asked to be monitored, the hospital did not pay attention to the baby’s concerning oxygen levels and only intervened six hours after being admitted. Because of the delay, her son was left with severe lifelong injuries.

A Landmark Medical Malpractice Case-McCourt v. Abernathy: In 1988, Wendy McCourt visited her doctor after being injured while working with horses. He treated her for a pulled muscle and sent her home. She later developed difficulty breathing and went to the emergency room, where she was given Motrin and Tylenol, followed by oral antibiotics. McCourt’s condition quickly deteriorated, and she was moved to an intensive care unit and diagnosed with sepsis. She died five days after being admitted to the hospital. Her husband sued the doctors involved in her care, and the case eventually went to the Supreme Court of South Carolina. The judge’s instructions to the jury are illuminating. Here’s an excerpt:

Medicine is an inexact science, and generally qualified physicians may differ as to what constitutes a preferable course of treatment. Such differences due to preference…do not amount to malpractice. […] Our law says that a physician is not an insurer of health, and a physician is not required to guarantee results. He undertakes only to meet the standard of skill possessed generally by others practicing in his field under similar circumstances.

The case was settled for $2.5 million, and the court found that the doctors involved failed to order diagnostic tests or appreciate the seriousness of McCourt’s issue until it was too late. The jury instructions above show the high bar that most states have for medical malpractice cases. 

Because it is often difficult to prove malpractice, it’s important to consult with legal experts about the best way to move forward. If you think you’ve experienced medical malpractice, reach out to an experienced medical malpractice lawyer as soon as you can. 

Under New Jersey law, you have two years from the time of malpractice to file a lawsuit. There are exceptions to this rule. For example, if children were involved or if you didn’t discover or realize the impacts of the malpractice until much later. But, talking to a qualified attorney sooner rather than later is a must when deciding whether to take legal action after medical malpractice happens. At D’Arcy Johnson Day, we specialize in medical malpractice. Call us toll-free at (866) 327-2952 or contact us online.

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