Contract / Warranty Breaches
Doctors rarely promise certain results from treatments or procedures. In some cases they do, and the failure to produce the promised results may be cause action for breach of contract or breach of warranty. If a patient is not satisfied with the results of a procedure and the health care professional had guaranteed or warranted a certain result, the patient may attempt to recover under a theory of breach of warranty.
Many states have passed legislation making it more difficult to bring and prevail in medical malpractice actions. Health care professionals, hospitals and facilities are protected by legal limits called "caps" on the amount of damages and attorneys' fees that can be awarded in malpractice actions in most states. Some states have state laws providing a set time-frame within which a patient must file a malpractice suit in court.
Certificate of Merit
In order for a plaintiff to file a certificate of merit, the plaintiff will first have to have an expert, usually another health care professional, review any relevant medical records and certify that the plaintiff's health care provider deviated from acceptable medical practices, which resulted in injury to the plaintiff. The plaintiff's attorney will then file the certificate of merit, which confirms the attorney has consulted with a medical expert and that the plaintiff's action does have merit.
If a case where a hospital employee commits malpractice, the hospital itself may be held liable. An employer may be held responsible for the negligent acts of its employee if the employee was acting within the scope of his or her employment when the negligent act and/or omission occurred. This is very important to plaintiffs in medical malpractice cases, as it helps ensure there will be a financially responsible party to compensate an injured patient.
If a doctor or other health care professional is an independent contractor, and commits malpractice while treating a patient in a hospital, the hospital cannot be held liable for the doctor's negligence. However, the hospital can be held responsible for its own negligence, for example, in granting attending privileges to an incompetent or unlicensed health care professional.
The Role of the Health Care Provider
Health care providers themselves, rather than a representative, nurse, or other related health care professional, are the best choice to speak to patients about informed consent. In discussing the matter with a patient, the health care provider should cover:
1. The patient's diagnosis, if it is known;
2. The nature and purpose of the proposed treatment or procedure, as well as
the possibility of
the procedure's success;
3. The benefits and/or risks of such proposed treatment and/or procedure;
4. The alternatives to the proposed treatment and/or procedure;
5. Alternatives to the treatment and/or procedure should be discussed regardless of the financial cost and regardless of whether they will likely be covered by the patient's health insurance;
6. The risks and benefits of an alternative treatment and/or procedure;
7. The risks and/or benefits of not receiving or undergoing any treatment and/or procedure.
A health care provider should also be sure patients understand what they're hearing. The patient, or the patient's legal guardian consenting to the treatment on the patient's behalf, must sign and date the informed consent documents, and must also be given a copy of the informed consent documents once they are signed and dated. A copy of such documents should also be placed in the patient's file.
A health care provider is required to inform a patient about risks, benefits, and alternative treatments. Patients also cooperate in the informed consent process. Patients must listen to the health care professional and should ask questions of him/her if they do not completely understand what is being explained or if they would like further detailed information.
Patients have the right to be fully informed of any information on all treatments and/or procedures to which they are subjected. Failure to provide such information can subject the health care providers to legal liability. If you feel you may have a claim based on the lack of informed consent, contact one of our experienced medical malpractice attorneys at once.
Medical malpractice is not limited to medical doctors only. It applies also to nurses, dentists, osteopaths, health care facilities, and others providing health care services, such as nursing homes.
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