What is Medical Malpractice?

Words in magnifying glass -Malpractice Professional negligence

Why Are Medical Malpractice Cases So Difficult?

 Finding a reputable medical malpractice lawyer in Georgia can be a challenging process due to the complexity of both the medical and legal aspects of medical negligence cases. In this blog post, we will explore why it can be so difficult to find the right lawyer, while also covering the different types of medical malpractice and how to navigate the legal process in Georgia.

What is Medical Malpractice?

Medical malpractice occurs when a healthcare professional, such as a doctor, nurse, or surgeon, fails to meet the standard of care, causing harm or injury to a patient. A standard of care refers to the level of care that a reasonably competent healthcare professional is expected to provide in a similar situation. When a medical provider deviates from this standard and causes harm, this is considered malpractice, or medical negligence.

Common types of medical malpractice include:

Misdiagnosis or Delayed Diagnosis

 Misdiagnosis is one of the most frequent and devastating forms of medical malpractice. It occurs when a doctor fails to diagnose a condition correctly or completely overlooks a diagnosis, leading to delayed or improper treatment. In some cases, this can result in a patient’s condition worsening or even becoming fatal.

Surgical Errors

 Surgical errors can be catastrophic and include mistakes such as performing the wrong procedure, damaging surrounding organs or tissue, or leaving surgical instruments inside a patient’s body. Such errors are often avoidable and may violate of the standard of care.

Medication Errors

 Medication errors occur when a healthcare provider prescribes the wrong medication, the wrong dosage, or fails to account for a patient’s allergies or medical history. These mistakes can lead to severe health complications, including permanent injury or death. This this type of error is very common in hospital and nursing home settings where medication reconciliation is not done properly.  It may also be the result of malpractice by a pharmacist.

Birth Injuries

 Birth injuries involve harm done to the mother or child during prenatal care or labor and delivery. Common causes of birth injuries include improper handling of the baby, failure to monitor the baby’s health, or delayed intervention during a difficult delivery. Birth injuries can lead to long-term medical conditions or even death.

These are just a few examples of the broad range of situations that can give rise to medical malpractice claims. However, to successfully pursue a claim, patients must navigate the complex legal and medical landscape that governs malpractice law.

Why is Finding a Medical Malpractice Lawyer So Challenging?

While the idea of pursuing a medical malpractice lawsuit might seem straightforward—after all, if you’ve been harmed by negligence, you deserve compensation—medical malpractice cases are some of the most complex and difficult types of personal injury cases. Here are some key reasons why:

Medical Expertise

One of the primary reasons why medical malpractice cases are so difficult is that they require extensive medical knowledge. Lawyers who handle these cases must not only be skilled in legal strategy but also understand the medical procedures and concepts involved. Some personal injury lawyers may not have the expertise needed to handle complex medical malpractice cases effectively.

Expense

The financial cost associated with medical malpractice cases is another reason why these cases are so challenging. Expert witnesses, depositions, investigations, and the collection of medical records all contribute to the cost of a malpractice case. Hiring qualified medical experts to testify can be extremely expensive—some experts charge as much as $2,000 per hour to review medical records.

Additionally, the cost of gathering evidence, consulting specialists, and possibly hiring additional investigators can create significant upfront expenses for a malpractice lawsuit. Many law firms take these cases on a contingency basis, meaning they only get paid if the plaintiff wins the case. However, even contingency-fee law firms often require substantial financial investment at the beginning of the case to cover expert fees and other expenses.

Strict Legal Requirements

Georgia, like most states, has strict laws and requirements when it comes to medical malpractice claims. One of the most critical requirements is the statute of limitations. In Georgia, medical malpractice claims must be filed within two years of the alleged incident. This timeline can be complicated.  For example, in misdiagnosis cases, “[t]he misdiagnosis itself is the injury and not the subsequent discovery of the proper diagnosis.” Kaminer v. Canas, 653 S.E.2d 691 (Ga. 2007).  This could result in a state of limitations expiring or being almost expired before a patient even knows there was a misdiagnosis. 

In order to pursue a medical malpractice claim in Georgia, the plaintiff must provide an affidavit from a qualified medical expert. Ga. Code 9-11-9.1. This expert must testify under oath that the healthcare provider’s actions deviated from the standard of care, which often requires a highly specialized understanding of the medical field in question. This expert testimony is crucial in proving that the provider’s actions directly resulted in the patient’s injury or harm. If this affidavit is not submitted or is found to be insufficient, the case can be dismissed outright.

Georgia Rule of Evidence 702 has very specific requirements for experts in malpractice cases. For example, in a case involving surgical errors, the lawyer must work with an expert surgeon who has significant experience in the type of surgery involved to establish that the procedure was improperly performed. This requires careful selection of experts, making the process not only legally difficult but also scientifically complicated. 

Strict procedural rules, such as adhering to tight deadlines, submitting the right documents, and ensuring that expert testimony is presented correctly, can further complicate the process for someone unfamiliar with legal technicalities.

Complex and Time Consuming Legal Process

Medical malpractice cases are notoriously difficult to win, primarily due to the burden of proof required. The plaintiff (the patient) must demonstrate that the healthcare provider was negligent and that this negligence directly caused harm. This is not always a straightforward process and involves presenting substantial evidence.

Proving negligence in medical malpractice often requires expert testimony, medical records, depositions from witnesses, and potentially multiple rounds of litigation. The burden of proof is on the patient, but unlike a car wreck case or slip and fall case, that burden can only be met by presenting expert testimony that satisfies the judge.  Ga. Code. 24-7-702 (“Rule 702’). 

The legal process can be lengthy and drawn out. Lawsuits may drag on for months or even years, with multiple motions, pre-trial hearings, and discovery phases. This protracted timeline can be exhausting for patients and families seeking justice, adding a layer of frustration to an already challenging experience.

Limited Availability of Lawyers Specializing in Medical Malpractice

Due to the technical nature of medical malpractice law and the high stakes involved, many lawyers hesitate to take on such cases. A typical medical malpractice claim is lengthy, resource-intensive, and expensive, as it often involves hiring expert witnesses, conducting thorough investigations, and preparing for potentially long court battles.

For this reason, there are fewer lawyers who specialize in medical malpractice, particularly those who are willing and able to take on complex cases. Finding a lawyer who is both qualified and willing to invest the time, resources, and expertise necessary for a successful outcome can be a major challenge.

Moreover, lawyers who handle medical malpractice cases must have a deep understanding of medical terminology and procedures. They also need to be familiar with Georgia’s unique laws surrounding malpractice claims. This specialized knowledge means that not all personal injury lawyers can handle medical malpractice cases—adding to the difficulty of finding the right legal representation.

How to Navigate the Legal Process.

Given the complexity of medical malpractice cases, it’s crucial to approach the legal process carefully and strategically. Here are some steps to consider when navigating this difficult terrain:

Consult with a specialized attorney

 It’s essential to consult with a lawyer who has experience specifically in medical malpractice. Such a lawyer will have the knowledge of medical terminology, procedures, and Georgia’s malpractice laws needed to build a strong case. They will also be able to guide you through the intricate legal process.

Gather all relevant medical records

 In a medical malpractice case, documentation is critical. The more organized and thorough your medical records are, the better. Ensure that you have all records related to your treatment, including hospital records, test results, prescriptions, and communication with healthcare providers. These documents will form the foundation of your case.

Consult medical experts

 Medical experts are vital to any malpractice case. A reputable malpractice lawyer will have access to a network of experts who can provide testimony on whether the standard of care was breached. This testimony can make or break your case, so choosing the right experts is crucial.

Be prepared for a lengthy process

 Medical malpractice cases can take years to resolve, so it’s important to be patient and persistent. You may face multiple legal challenges along the way, and your lawyer will need to prepare for long, complex proceedings. Patience and determination are key to navigating the process successfully.

Conclusion

The process of finding a reputable medical malpractice lawyer in Georgia can be daunting, but with the right approach, it is possible to find an attorney who can help you navigate the complex medical and legal terrain. Medical malpractice cases are difficult not only because of the technical legal requirements but also because of the medical expertise needed and the significant financial resources involved.

Nursing Home Abuse and Injury Cases in Georgia

Elderly abuse from negligent nursing home in Georgia.

A national, privately-owned nursing home chain advertised its services with glossy brochures, showing its smiling staff serving 5-star dinners to happy residents in immaculate dining halls.  Pictures of nurses out of central casting were seen providing “concierge” medical care to healthy residents in beautiful bedrooms.  The goal, of course, was to induce residents and their families to believe that top-notch service was provided.  Both private insurance and taxpayer-funded Medicare was happily accepted. 

In reality, residents who were unable to feed or care for themselves routinely went without adequate nutrition and basic healthcare. In one instance, a diabetic patient died because he was not given a snack by a poorly trained and overworked nursing assistant.  A subsequent lawsuit by Williams Elleby Howard & Easter attorneys revealed the chain had a pattern of staffing shortages and inadequately trained staff that repeatedly resulted in substandard care.  After fighting hard to obtain internal records, the chain was required to turn over emails and memos that showed the profit motive behind these staffing shortages. 

“[R]esearch findings consistently show higher staffing levels are related to higher quality of care,” However, “under current government prospective payment systems, nursing homes make choices on how to allocate their resources. About 70% of nursing homes are for-profit facilities with an orientation to maximizing profits for owners and shareholders.”  

Failure to Meet Nurse Staffing Standards: A Litigation Case Study of a Large US Nursing Home Chain .

Providing substandard care including minimum staffing for residents, especially to increase profits, is illegal. 

Under federal regulations, nursing homes are required to:

  • Provide nursing care to all residents on a 24-hour basis in accordance with resident care plans.
  • Have a “licensed nurse to serve as a charge nurse on each tour of duty… and licensed nurses have the specific competencies and skill sets necessary to care for residents’ needs, as identified through resident assessments, and described in the plan of care.”
  • The facility must meet or exceed a minimum of 3.48 hours per resident day for total nurse staffing including a minimum of 0.55 hours per resident day for registered nurses 2.45 hours per resident day for nurse aides; and
  • aides must be “able to demonstrate competency in skills and techniques necessary to care for residents’ needs, as identified through resident assessments, and described in the plan of care.”

Code of Federal Regulations, 42 C.F.R. § 483.35.

A good way to research whether a nursing home has a history of poor staffing or other problems is to look on the Medicare’s “nursing home compare” website.  Medicare.Gov   This site provides information on nursing homes by location and includes comparisons on the quality of care and staffing. 

In many states, including Georgia, a nursing home that hurts someone by failing to follow regulations is liable for negligence and negligence per se.  For example, in 2006, the Georgia Court of Appeals specifically held that violations of nursing home staffing regulations allowed a resident’s family to sue for harm that resulted from the violations because “It is obvious that as a resident of the nursing home owned by [Defendant, Plaintiff’s] father belonged to the class of persons for whom these statutes and regulations were intended to protect, and that the injuries set forth in the complaint… were among those these same statutes and regulations were designed to prevent.”    McLain v. Mariner Health Care, Inc., 279 Ga. App. 410, 413, 631 S.E.2d 435, 438 (2006).

Some of the most important questions to ask when looking at a potential nursing home negligence or malpractice case are:

  • Did the harm result from a violation of a federal or state regulation;
  • Was there a pattern of such violations;
  • Was there a profit motivation behind the violations?

Nursing home cases can be complex and difficult to prove. Having an experienced lawyer who knows the federal and state regulations is important so that victims can understand their legal rights and options.

The experienced medical malpractice attorneys at Williams Elleby Howard & Easter, handle negligent nursing home cases throughout the State of Georgia. If you would like to discuss your case, call today to schedule a free consultation at 833-534-2542.

If you or a loved one has been harmed because a nursing home failed to properly staff and provide proper care, Attorney Marc Howard along with the Williams Elleby Howard & Easter team, can help you understand your personal injury claim and work to get you the compensation you deserve.

Medical Malpractice Misdiagnosis

Female patient in a hospital bed holdong her face.

Misdiagnosis Medical Malpractice Lawsuits in Georgia

Although not every case of misdiagnosis in Georgia leads to injury or a medical malpractice lawsuit, the impact of serious injuries resulting from misdiagnosis is significant. In 2023, joint researchers from the Johns Hopkins School of Medicine and Harvard Medical School  determined that annual misdiagnoses in the United States resulting in serious injury ranged from 598,000 to 1,023,000 patients.  Newman-Toker DE, Nassery N, Schaffer AC, et al Burden of serious harms from diagnostic error in the USA BMJ Quality & Safety 2024;33:109-120. The study defined “serious” as any case involving permanent injury (morbidity) or death (mortality). 

Additionally, the National Academies of Sciences, Engineering, and Medicine (NASEM) published a consensus report which emphasized the urgent need for change to address diagnostic errors, which pose a major challenge to healthcare quality. The Committee defined a misdiagnosis as “the failure to

  • (a) establish an accurate and timely explanation of the patient’s health problem(s) or
  • (b) communicate that explanation to the patient.”

NASEM, 2015, Improving Diagnosis in Health Care. Washington, DC: The National Academies Press.  

Should I File a Lawsuit for Misdiagnosis?

When injured patients and their attorneys are considering whether to file a medical malpractice lawsuit based on a misdiagnosis or delayed diagnosis, several critical questions come into play:

  1. Accuracy and Timeliness of Diagnosis:
  • Was the initial diagnosis accurate and timely? A misdiagnosis occurs when a healthcare provider fails to establish an accurate and timely explanation of the patient’s health problem.
  • Evaluating the accuracy and timing of the diagnosis is crucial in determining whether there was negligence or error.
  1. Harm Caused by Misdiagnosis:
  • Did the misdiagnosis result in serious harm that could have been avoided? Patients must demonstrate that the harm they suffered directly resulted from the misdiagnosis.
  • This harm can include permanent injury (morbidity) or even death (mortality).
  1. Expert Testimony and Support:
  • Can all aspects of the case be supported with testimony from medical experts? Expert opinions play a significant role in medical malpractice lawsuits.
  • Expert witnesses can provide insights into whether the misdiagnosis fell below the standard of care and caused harm.
  1. Justification for Legal Action
  • Are the injuries severe enough to warrant pursuing a medical malpractice lawsuit? Legal proceedings can be expensive and time-consuming, especially when they involve medical malpractice.
  • Weighing the severity of injuries against the costs involved is essential when deciding whether to proceed with legal action.

Seeking Compensation for Misdiagnosis in Georgia Requires the Help of an Experienced Medical Malpractice Attorney

Imagine these scenarios: A pregnant woman is told everything is normal at a prenatal appointment, but she is showing signs of premature labor.  A brain infection is thought to be cancer, subjecting the patient to dangerous radiation therapy that makes the infection worse and causes brain damage.  Critical imaging showing internal bleeding is not communicated in a timely manner, resulting in the patient’s death.  These are all examples of medical misdiagnoses cases that resulted in tragic outcomes and, eventually, medical malpractice lawsuits filed by Williams Elleby Howard & Easter.

When a misdiagnosis results from negligence, Georgia laws provide a remedy for the victim. Like most states, Georgia requires every licensed treater to exercise “reasonable care and skill” when treating a patient.  Ga. Code § 51-1-27.  In limited circumstances involving patients admitted through an Emergency Department (“ED” or “ER”), a treater is immune from malpractice claims unless the treater is guilty of “gross negligence,” which is a failure to exercise even slight care.  Ga. Code § 51-1-29.5 .

The duty to exercise care when treating patients applies to anyone providing treatment for compensation including medical doctors, nurse practitioners, physicians’ assistants, laboratories, chiropractors, and physical therapists.  In the case of a failure to communicate a condition to a patient, there can also be claims against staff at hospitals, doctor’s offices, and laboratories.

Proving Harm in Misdiagnosis Cases

Even if a negligent misdiagnosis occurred, Georgia law also requires a patient to prove that the misdiagnosis “caused or contributed to cause … harm.  In the legal world, we refer to this concept as “proximate causation.” To meet this burden, a medical malpractice plaintiff must present expert testimony.” Harvard v. John D. Archbold Mem’l Hosp., Inc., 365 Ga. App. 171, 174, 877 S.E.2d 816, 819 (2022).   For instance, in 2022, the Court of Appeals of the State of Georgia reviewed a case involving a stroke victim who did not get timely treatment due to delayed lab work and CT scan results.  However, the patient’s expert witness could not testify that the delay made a difference “to a reasonable degree of medical certainty,” or more likely than not.   So, the Court held that the case could not proceed to trial.  Harvard, 365 Ga. App. at 176.  

Moreover, injured patients and their attorneys must assess the economic viability of filing a medical malpractice lawsuit. At its core, the question is whether the damages resulting from malpractice outweigh the substantial financial costs associated with legal proceedings. Most medical malpractice lawsuits require more than $100,000.00 in expenses to pursue. These expenses encompass things like expert witness fees, filing fees, record retrieval fees, medical illustration and animation fees, deposition fees, and more. Additionally, the patient’s attorney invests countless hours in the case. Therefore, evaluating whether the case justifies the financial and time commitments becomes crucial for both the patient and their legal representative.

The Time Limit for Bringing a Misdiagnosis Lawsuit in Georgia

In misdiagnosis cases, understanding the time frame for filing a lawsuit is crucial.  In Georgia, nearly all medical malpractice cases adhere to a 2-year statute of limitations, requiring patients to file a lawsuit within 2 years from the date of negligence.  Ga. Code § 9-3-71. The Supreme Court of Georgia emphasizes that, “except in the most extreme circumstances,” the statute of limitations begins to run “immediately upon the misdiagnosis.”  However, there’s an exception: if the misdiagnosis results in a “new injury” such as a pre-cancerous mole progressing to metastatic cancer.  Amu v. Barnes, 283 Ga. 549, 551, 662 S.E.2d 113, 116 (2008). Since a patient might not know about the misdiagnosis initially, the clock could start ticking before they realize the need to investigate potential malpractice.  Like any malpractice case, seeking advice from a qualified attorney promptly is advisable.

Misdiagnosis Medical Malpractice Attorneys in Georgia

Medical malpractice cases can be complex and difficult to prove. This is especially true when it comes to misdiagnosis cases. Even though these claims can be difficult to win, victims of harm should still understand their legal rights and options.

The experienced medical malpractice attorneys at Williams Elleby Howard & Easter, handle misdiagnosis medical malpractice cases throughout the State of Georgia. If you would like to discuss your case, call today to schedule a free consultation at 833-534-2542.

If you or a loved one has been harmed because a doctor failed to properly diagnose an illness, Williams Elleby Howard & Easter, can help you understand your misdiagnosis claim and work to get you the compensation you deserve.