Kahn Gauthier Swick is investigating legal actions on behalf of patients who were harmed by medical malpractice, and their families. Medical malpractice encompasses all negligence by medical care providers that causes harm to the patient. A legal action seeking to recover for medical malpractice will be filed against the physicians or other medical care providers, such as nurses or radiologists, who were negligent. The medical facility where the patient was treated may also be named as a defendant. This can happen when the negligent personnel worked for the medical facility (rather than being independent contractors, as some physician groups are), or when the medical facility itself was negligent, as, for example, if the facility failed to have processes in place to assure patient safety.

Medical malpractice takes an enormous toll on American families. A 1999 study by the Institute of Medicine, which is part of the National Academy of Sciences, estimated that each year between 44,000 and 98,000 hospital patients in the U.S. die from medical malpractice. While some critics have challenged these figures, other authorities stress that this study involved only deaths to hospitalized patients and did not cover deaths from medical malpractice committed in outpatient surgery or in the course of patients' treatment by their physicians in office visits and all other outpatient settings.

These figures reveal medical malpractice to be one of the leading causes of death in the United States, ranking somewhere in the range of unintentional injuries (5th with 98,000 deaths), diabetes (6th with 68,000 deaths), influenza and pneumonia (7th with 64,000 deaths), and Alzheimer's disease (8th with 45,000 deaths). (These figures are from official 1999 mortality tables, updated in October 2001.) More people die each year as a result of medical errors than from motor vehicle accidents or breast cancer, each of which claim 43,000 Americans annually.

Total national costs (lost income, lost household production, disability and health care costs) of preventable medical adverse events are estimated to be between $17 billion and $29 billion, of which health care costs represent over one-half.

Examples of Medical Malpractice

Medical malpractice can occur in a large array of settings:

--when a physician fails to properly diagnose the patient's condition, or delays in making the correct diagnosis.
--when a physician fails to properly treat the patient's condition.
--when a laboratory technician fails to properly conduct a test.
--when a physician erroneously interprets an X-ray.
--when a nurse or the hospital pharmacy gives the patient the wrong drug, or the wrong strength of the right drug.
--when a physician or the hospital staff fails to take precautions against foreseeable complications.
--when a physician fails to get the patient's informed consent for the medical treatment.
--when a physician prescribes a drug to which the patient is allergic, without first checking for such an allergy.
--when a medical facility fails to provide proper nursing care.

Proving Medical Malpractice

Not every doctor's decision that leads to a bad result is malpractice. Malpractice exists when (1) the doctor failed to act in accordance with the applicable standard of care, and (2) the patient suffered harm. There is no malpractice when the physician made a reasonable medical judgment that simply turned out to be wrong. Nor is there malpractice when the physician made an error but the patient, fortunately, was not harmed by that mistake.

Establishing the applicable standard of care, then, is crucial in a medical malpractice action. This is done through the testimony of medical experts. Historically, under the "locality rule," a general practitioner was required only to use the skill and care that is ordinarily used by reasonably well-qualified physicians in the locality, or similar localities, in which he or she practices. But today the trend is toward abolishing this rule in favor of a national standard of practice. Medical specialists, on the other hand, are always held to the nationally-accepted standard of practice for specialists in that field of medicine.

Research shows that the vast majority of patients harmed by medical malpractice don't protect their legal rights by seeking financial compensation for their injuries. A report from the Harvard School of Public Health (the Harvard Medical Practice Study) found that only one in eight patients harmed by medical negligence ever files a legal action, and only one in sixteen recovers any damages.

Medication Errors

The Institute of Medicine report described above estimates that fully half of adverse reactions to medicines are the result of medical errors. Medication errors, occurring either in or out of the hospital, are estimated to account for over 7,000 deaths annually.

Name confusion is among the most common causes of drug-related errors. A recent example: the sound-alike names for the antiepileptic drug Lamictal and the antifungal drug Lamisil. The volume of dispensing errors involving these two drugs prompted the manufacturer of Lamictal, Glaxo Wellcome, to launch a campaign warning pharmacists of the potential confusion. The possible consequences of prescribing the wrong drug are grave: Epileptic patients receiving Lamisil by mistake could experience continuous seizures. Patients erroneously receiving the antiepileptic drug Lamictal might experience a serious rash, blood pressure changes, or other side effects.

Errors also have occurred in prescribing the arthritis drug Celebrex, the anticonvulsant Cerebyx, and the antidepressant Celexa. There have been well over 100 reports of confusion among the three drugs.