Orthopedics (sometimes spelled “orthopaedics”) refers to a specialized branch of medicine that is concerned with correcting medical conditions that may affect a person’s muscles, joints, or bones.
An orthopedist, or an orthopedic surgeon, is a medical professional specializing in orthopedics. Their primary goal is to treat, diagnose, and prevent orthopedic afflictions. They accomplish these tasks by using both surgical and nonsurgical procedures. They can treat injuries and may be able to prevent them.
Some common examples of orthopedic treatments and procedures include:
- Hip or knee replacements
- Sports injuries
- Bone tumors
- Osteoporosis
- Arthritis
- Some types of back pain or spine-related issues
- Musculoskeletal trauma
- Acute injuries and congenital disorders affecting joints, bones, or muscles
- Concussions
- Chronic degenerative conditions
- Stress fractures
- Dislocations
- Injury to the muscle
- Tendon tears or ruptures
Orthopedic malpractice occurs when an orthopedist falls below the professional standard of care when treating, diagnosing, or managing a patient, resulting in an injury to that patient. If they are not done properly, orthopedic treatments, especially those involving surgery, can cause a patient’s injury to become worse. In such a scenario, the patient may be able to sue for medical or orthopedic malpractice. This allows them to recover any damages and losses caused by the negligent actions that occurred during the procedure.
What Types of Injuries Can be Caused by Orthopedic Malpractice?
Orthopedic malpractice can cause many different types of injuries. Some examples of injuries that can lead to long-term or permanent damage include:
- Failing to diagnose an orthopedic medical problem accurately
- Ignoring proper medical procedures regarding cleanliness and sanitation
- Operating on the wrong body part (e.g., left leg instead of right leg)
- Performing a particular surgery on the wrong patient
- Performing the wrong kind of orthopedic surgery on a patient
- Leaving surgical instruments or medical sponges inside a patient
- Failing to recognize medical issues that arise post-surgery
Additionally, administrative issues may also qualify as orthopedic malpractice. An example of this is where an orthopedist performs surgery without a valid medical license or if an injury resulted due to a clerical error made with regard to a patient’s hospital records.
Who Can be Held Liable for Orthopedic Malpractice?
There are multiple parties who can be held liable in orthopedic malpractice cases. The facts of a case will usually dictate exactly who can be held legally responsible (it depends, of course, on who made a mistake). Sometimes, it is the orthopedic surgeon who causes the patient’s injuries. For instance, if an orthopedic surgeon leaves a surgical instrument inside a patient during surgery, then the patient can sue the surgeon for orthopedic malpractice.
Doctors and surgeons are not the only parties who can be held legally responsible. Nurses, other medical staff, and hospital organizations can be held accountable as well. For instance, if a hospital consistently loses patient records or a hospital staff constantly makes mistakes diagnosing patients because of widespread clerical errors, then the hospital itself may be liable for orthopedic malpractice.
In some cases, a mix of different actors might all be involved in the malpractice (for example, those who carried out a surgery together), or there may be a “chain” of malpractice occurring in the healthcare institution. There may be systemic violations, often due to issues with institutional policies or overall operational issues. In such cases, a number of parties can all be held liable for a single person’s injury.
Finally, if an orthopedic surgeon knew or should have known that a particular implant brand or medical device causes serious harm to patients, they may be held liable. The manufacturer of the defective implant products or medical device can also be sued, but such a case will most likely be based on a claim for defective design or some other cause of action under products liability law, not medical malpractice.
However, an injury claim can often involve multiple legal theories or concepts. To address all of the many complex possibilities typically requires the assistance of a malpractice lawyer to achieve the best possible resolution.
What Does the Plaintiff Have to Prove in a Malpractice Case?
Malpractice is a type of negligence. A person is considered negligent if they acted carelessly given the specific circumstances surrounding the situation.
To prove a case of negligence, the plaintiff has to establish four things:
- That the defendant owed the plaintiff a duty of care, this is easy to establish. All doctors owe their patients a duty to be careful when treating them.
- That the defendant breached their duty. This is where difficulty can arise – the plaintiff might have to do a good deal of investigation to find out how the doctor breached their duty.
- That the defendant’s improper action or inaction led to an injury, this is usually determined by answering the following question: but for the doctor’s action or inaction, would the injury have occurred?
- That the plaintiff did in fact suffer an injury that is compensable by monetary damages
What are the Legal Remedies and Consequences Involved in an Orthopedic Malpractice Claim?
The most common form of damages that plaintiffs in orthopedic malpractice claims receive are monetary damage awards. This money is meant to reimburse the plaintiff for costs related to their injuries. For example, the plaintiff may need the money to pay off hospital bills, surgery expenses, pharmaceutical costs, lost wages if they could not work for a time after the orthopedic injury, and so on. In some states, they may also receive damages for pain and suffering.
Other legal consequences may include suspending or revoking the orthopedist’s medical license and mandating that a medical facility improve their record keeping policies or health and safety procedures.
One final thing to keep in mind about remedies for malpractice claims is that the majority of states have statutes that limit the amount of damages that can be awarded. Many states impose damage caps that max out at around $250,000. Other states have much higher limitations. For instance, damages for medical malpractice in Wisconsin are capped at $750,000. There are also a handful of states that do not impose damage caps at all.
If you are unsure about the malpractice laws in your area, you may need to contact an attorney. A malpractice attorney will be able to explain your legal rights under the current laws and statutes in your area. It’s best to seek legal help from a professional if you have any questions or inquiries, for even if you believe you are aware of the laws of your state, they do change from time to time, and you need the most up-to-date information.
Are There Any Legal Defenses That Might Apply to a Malpractice Case?
As in any injury claim, the defendant party may attempt to raise defenses if they apply to their case. In an orthopedic malpractice claim, the party being sued may attempt to raise defenses such as:
- Lack of proof: If any of the elements needed to prove malpractice are not met, it might be raised as a defense
- Consent: Depending on the situation, if the patient fully consented to the process involved, that is a defense
- Contributory negligence: If the patient somehow contributed to their own injury, it might be raised as a defense in the lawsuit. An example of this is when the patient is specifically instructed to follow certain instructions in preparation for the procedure but knowingly disregards these preparatory steps.
Various other defenses may apply. These will depend on state law and the facts and circumstances surrounding each case.
Do I Need a Lawyer for Help with an Orthopedic Malpractice Claim?
Suing orthopedic doctors or hospitals for malpractice often requires comprehensive law knowledge and familiarity with state court procedures. Thus, if you intend to sue your orthopedic surgeon for malpractice, then you may want to consider hiring a local personal injury lawyer before you proceed.
An experienced personal injury lawyer can answer any questions you have about your case, help you gather necessary evidence, and discuss the potential remedies you can recover if your case is successful. Your lawyer can also guide through each step of your case and can represent you in court. Your attorney can also help you negotiate a favorable settlement.
