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Medical Errors: More Common Than You Think

MISDIAGNOSES: PART OF A WIDER PROBLEM

Recently, a friend of mine who had been suffering from a bad cough for months finally got a CT scan. She had been told she had bronchitis, and that it was just taking a while to clear up, but she was not convinced. The radiologist who read the CT scan however, reported that it showed “no abnormalities” and therefore seemed to corroborate this diagnosis. Not satisfied, my friend went to a pulmonologist to determine if her cough could be from something else. The pulmonologist looked at the CT scan and immediately found abnormalities and the reason for my friend’s cough and its failure to improve. In other words, the radiologist erred, and had my friend not persisted in her belief that something was wrong, that error would have resulted in great harm.

Some people are not so fortunate. Sometimes an initial misdiagnosis can have lasting catastrophic consequences. Take the case of a patient who was diagnosed with asthma but who in fact had systemic lupus erythematosus, a chronic autoimmune disease that requires a much different treatment protocol. The patient was prescribed medicine for asthma, including inhalers and oral steroids, which not only did not help her true condition, but which caused her harm. Because all of her medical records and testing concluded that she had “asthma,” it took years for doctors to completely abandon this diagnosis and start over again with a wholly new diagnosis of and treatment plan for Lupus. During these years, the patient lost valuable time in treating the disease, and took medications that led to life-long complications.

It would be comforting to think that these examples are anomalies, but they are not. Medical errors such as these occur routinely. Some, as in the first example, are caught before any harm occurs. Some, as in the second example, are not realized until the consequences have had a terrible impact. So what can be done?

GEORGIA MEDICAL MALPRACTICE LAWSUITS

Medical malpractice is defined in the Georgia Code at Title 9, Chapter 3:

As used in this article, the terms “action for medical malpractice” means any claim for damages resulting from the death of or injury to any person arising out of:

  1. Health, medical, dental, or surgical service, diagnosis, prescription, treatment, or care rendered by a person authorized by law to perform such service or by any person acting under the supervision and control of the lawfully authorized person; or
  2. Care or service rendered by any public or private hospital, nursing home, clinic, hospital authority, facility or institution, or by any officer, agent, or employee thereof acting within the scope of his employment.

Important in any action for medical malpractice is the concept of “standard of care.” The standard of care is a generally accepted set of norms and practices used by medical professionals to treat patients suffering from a condition or disease; the standard of care varies depending on the patient’s age, health and locale.

When a medical professional or institution violates a standard of care, as in the cases cited above, a medical malpractice action may be brought to recover damages for the harm caused. The action also alerts the community to that practitioner’s or institution’s violation, and in many cases may lead to an investigation of the practitioner’s or institution’s license.

STATUTE OF LIMITATIONS v. STATUTE OF REPOSE

Georgia has the typical two year statute of limitations for bringing a medical malpractice lawsuit, meaning that the action must be filed within two years from the date of injury or death. It is important to remember that the date of injury or death is not necessarily the same as the date of the treatment that allegedly caused it; i.e. the injury caused by the incorrect reading of an x-ray or CT scan may not manifest for months or even years (think of a tumor, or a chronic condition that worsens over time). A statute of limitations begins to run whenever the injury or death occurs.

A statute of repose is an extra limitation placed on medical malpractice actions in Georgia. It runs 5 years from the date of the act that caused the injury or death. In the above example, the statute of repose would begin to run from the date that the radiologist misread the CT scan, and end 5 years from that date, regardless of when the injury manifested. There is an exception for foreign objects left in someone after surgery; in those cases, the statute of repose begins to run upon discovery of the object and runs for one year from that date.

MEDICAL EXPERT AFFADIVIT

Georgia also requires what is called a medical expert affidavit when filing a medical malpractice lawsuit. As the title suggests, a complaint for medical malpractice must be accompanied by an affidavit from a medical expert regarding the negligence which caused the alleged harm.

DAMAGES

There are three types of damages that can be recovered in medical malpractice actions. Compensatory damages are sought for medical expenses, lost wages (past wages and lost future earnings potential), rehabilitation expenses, etc.; they are generally things which are concrete out-of-pocket expenses. Non-economic damages are sought for pain and suffering, loss of consortium, etc.; they are generally things which are intangible, emotional losses. Punitive damages are what the name suggests: sought as a punishment for willful misconduct, malice or fraud on the part of a defendant.

Non-economic damages had been capped, but in 2010 the Georgia Supreme Court found the caps to be unconstitutional. Punitive damages are limited to $250,000, except when actual malice is shown in product liability cases. O.C.G.A. 51-12-5.1.

CONTACT YOUR ATTORNEY

If you or someone you know has suffered harm due to the actions or inactions of a medical professional or institution, contact Dave Thomas at The Thomas Law Firm for a free consultation regarding your legal rights.

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