A medical specialist is a type of doctor that has advanced training in a particular field of medicine. For example, a cardiologist is a doctor who specializes in the treatment of heart abnormalities and diseases.
Seeking medical attention from a particular specialist can be helpful in curing a specific medical condition quicker. However, there are several medical malpractice risks that a patient may face when getting treatment from a medical specialist, including:
- Proving medical malpractice caused a patient’s injuries may be more difficult when a specialist is involved because they have a higher duty of care;
- This can also make proving a legal claim more costly since it will likely involve paying for special expert witnesses; and
- Oftentimes, a patient is referred to a specialist by their general practitioner. Thus, some cases will require a patient to sue both doctors. In other cases, it may be more difficult to determine which physician owed a duty of care (e.g., meeting with a referred specialist one-time can make these cases more complicated).
As such, you may want to consult a local personal injury lawyer if you believe you have a claim against a specialist for medical malpractice. Your lawyer can help you determine whom to hold responsible for your injuries and can discuss your potential options for legal recourse.
Who May Be Sued for Medical Malpractice?
There are a number of different parties who may be held liable in a medical malpractice lawsuit; the most obvious of these parties being the doctor who directly caused the patient’s injury. However, doctors and medical specialists are not the only parties who may be held legally responsible for a patient’s injuries.
Some other types of parties that may be sued for medical malpractice include the medical staff who was involved in the patient’s treatment or surgery (e.g., surgeons, nurses, interns, etc.), administrative personnel who work at a medical facility, and the health organization itself (e.g., a hospital).
How to Establish a Claim For Medical Malpractice Against a Specialist
In order to initiate a medical malpractice lawsuit, a patient should begin by taking the following steps:
- First, they should contact the medical specialist who caused the harm before they file their claim. The medical specialist may be able to fix their errors for free and without the need for court intervention.
- If the medical specialist either cannot or refuses to fix the situation, then the patient should proceed by contacting the proper medical licensing board. Though the board cannot provide remedies or damages to an injured patient, they can discipline the specialist.
- Next, the patient should check the statute of limitations for medical malpractice lawsuits in their state. If the time has expired, then the patient may already be barred from bringing their claim. If not, then the patient should move on to the next step.
- Some states may require a patient to get a “certificate of merit” prior to initiating a medical malpractice lawsuit. However, a patient should strive to get one regardless, to give extra support to their claim. They can do this by contacting another physician or “expert” who specializes in the same field as the doctor who caused their injury.
- Consult an attorney to determine whether the opposing party is willing to settle outside of a court. This may be in the best interest of both parties since medical malpractice trials can be costly and time-consuming.
- Finally, if the only two options remaining are to either drop the case or go to trial, the patient should discuss their best course of action with their attorney. In the event that the patient decides to go to trial, then the next set of steps will vary based on the laws of the jurisdiction hearing the case and the facts of a particular claim.
What is the Acceptable Standard of Care for a Medical Specialist?
Depending on the jurisdiction, the standard duty of care required of medical specialists tends to be higher than what is required of general practitioners. This is due to the fact that they have special training in their areas of expertise. In other words, medical specialists are supposed to be trained experts on the type of medical field they studied at medical school and in which they now practice.
Some types of doctors that may be considered medical specialists include orthopedic surgeons, pathologists, pediatricians, dermatologists, and psychiatrists.
The basic definition for the acceptable standard of care for a medical specialist is as follows: they have a duty to their patients to offer treatment with the same level of skill, care, and expertise that is typically required of all other specialists in their field.
For instance, if the majority of dermatologists in a given jurisdiction treat a pimple by using a specific acne cream, then a dermatologist who examines and treats a patient’s pimple using that exact same cream will have met the acceptable standard of care for medical specialists in their field and the community.
If, however, a medical specialist violates the required standard of care, then they may be held liable for any resulting injuries that they caused to their patient.
What Damages Are Available in a Medical Specialist Malpractice Claim?
Be sure to remember that a plaintiff can only recover remedies and/or damages for medical malpractice claims if they suffered actual damages due to their physician’s conduct. Some legal remedies and/or damages that an injured patient may be able to recover include the following:
Special or economic damages: Special or economic damages are damages used to reimburse a plaintiff for costs incurred as a result of their injuries. In other words, the parties will be able to calculate such damages.
- For instance, hospital bills, medical expenses, medical device costs, lost wages, loss of earning capacity, and other out-of-pocket expenses can all be included in the tally to determine the amount of an award.
- General or non-economic damages: General or non-economic damages refer to costs that are often difficult to quantify, such as emotional distress or mental anguish, pain and suffering, reputational damages, loss of quality of life, and so forth.
- Punitive damages: Punitive damages are only permitted in some states for medical malpractice claims. They are usually reserved for extreme cases in which a physician’s conduct was so outrageous it deserves punishment. States that do allow a plaintiff to collect such damages usually place a limit (e.g., three times the amount of actual damages) on the amount that the plaintiff can recover.
- Other remedies: Other remedies that the court may issue include revoking or suspending a specialist’s medical license, shutting down an entire medical facility, ordering a medical organization or doctor’s office to update or amend their health and safety policies, and requiring health organizations to implement new privacy, health, and/or safety measures.
What are the Possible Defenses for a Medical Malpractice Claim?
There are a number of legal defenses that a defendant may potentially be able to raise against a claim for medical malpractice. Some of these defenses include:
Assumption of risk: Depending on the facts of a case, a defendant can potentially argue that a plaintiff assumed the risk that led to their injuries. For example, if the plaintiff knew they were allergic to certain medications, did not inform their physician, and took the medication regardless, then the plaintiff’s actions may act as a defense for the defendant if they can prove that the plaintiff assumed the risk.
Statute of limitations expired: A statute of limitations is a law that sets how long a plaintiff has to take legal action against a defendant. While many states impose a two-year statute of limitations for medical malpractice claims, the time frame can vary from state to state. After the statute of limitations has expired, a plaintiff will be barred from bringing a lawsuit and thus cannot seek any remedies from a defendant for their injuries.
However, it should be noted that a defendant must raise this as an actual defense. In other words, it is not enough that the time period has simply expired. Rather, the defendant has to put the court on notice of the expiration date. If properly raised, the defendant can assert this defense to have the case against them dismissed.
Contributory negligence: In general, there are three main legal theories of negligence that states follow and apply to their medical malpractice lawsuits: contributory, modified comparative, and pure comparative negligence. In states that apply the rules for contributory negligence, the plaintiff will be barred from recovering damages if they are even 1% at fault for their injuries.
In contrast, a plaintiff will still be allowed to recover damages if they are 99% at fault for their injuries in states that follow a pure comparative negligence theory. This defense will help to reduce the amount of damages that a defendant owes. As for a jurisdiction that follows modified comparative negligence, the plaintiff will not be able to recover if they are 51% or more at fault for their injuries.
Lack of proof or fault: If the plaintiff fails to establish proof or that the defendant is the individual responsible for causing their injuries, then the defendant may argue that they did not satisfy the full requirements necessary to hold them liable for damages.
Additionally, there may be other defenses available to the defendant, but these will be contingent on the facts of an individual case and the laws of a particular state. This also means that some of the defenses listed above may not be raised against every claim. Thus, defendants to medical malpractice lawsuits should contact a local personal injury lawyer to discuss what defenses they may be able to assert in their own case.
Should You Consult an Attorney for a Medical Malpractice Claim Against a Specialist?
Medical malpractice claims can be complicated cases to handle in general, but are even more so when they are filed against a specialist. Between highly technical medical jargon, complex state laws, and having to hire qualified medical expert witnesses, the amount of legal work involved in these lawsuits can be a lot to juggle without the help of a personal injury lawyer.
Therefore, if you believe you have been injured by a medical specialist and would like to file a medical malpractice claim against them, you should contact a local personal injury attorney as soon as possible. Your attorney can assist you in filing your claim as well as can help you with collecting evidence and preparing your case.
Additionally, your attorney can explain how the laws in your jurisdiction may affect the outcome of your case, can discuss the potential remedies you may recover if your case is successful, and can represent you on the matter in court.
Jose Rivera, J.D.
Managing Editor
Editor
Last Updated: Nov 24, 2020
