Halifax lawyer John McKiggan, author of Health Scare, argues that the reasons for poor outcomes in medical procedures are often kept hidden. McKiggan cites the 2004 Canadian Adverse Events Study that found that 70,000 of the 185,000 adverse effects suffered annually by hospital patients are potentially preventable. Between 9,250 and 23,750 patients die annually from preventable errors, involving doctors and other health practitioners.
About three-quarters of mediations result in a satisfactory outcome, often within a day, but mediation is not legally binding until a written agreement is signed and the case can proceed to court. The NHS Litigation Authority launched a mediation service in 2014 for cases that have reached the compensation stage (contact the trust involved directly for more information). The Tutu Foundation also offers a mediation service (tutufoundationuk.org, tel 01865 514830).
Doctor's surgeries also have a legal duty to provide an acceptable level of care to their patients. This will take into consideration issues such as waiting times, diagnoses and administration. If the surgery fails to reach the standards reasonably expected of the medical profession, and this directly harms their patients, the doctor's surgery will have been negligent.
In the example above, emotional stress would include the plaintiff’s embarrassment or depression as a result of disfigurement. Likewise, the plaintiff would be compensated if the jury finds that the plaintiff has suffered a permanent loss of function or impairment from the jaw bone injury. The jury would also be permitted to consider the loss of ability of enjoy life’s pleasures such as eating or even kissing. Note that this requires proof of what the plaintiff did and what they enjoyed before the injury. A jury can also consider the expected length of the plaintiff’s life, lifestyle habits, and whether the plaintiff was generally healthy before the incident to determine how much to award.
A doctor-patient relationship existed. You must show that you had a physician-patient relationship with the doctor you are suing -- this means you hired the doctor and the doctor agreed to be hired. For example, you can't sue a doctor you overheard giving advice at a cocktail party. If a doctor began seeing you and treating you, it is easy to prove a physician-patient relationship existed. Questions of whether or not the relationship exists most frequently arise where a consulting physician did not treat you directly.
Previously, a New York appeals court had also ruled that a couple was allowed to sue a fertility clinic for emotional distress after the clinic implanted the female plaintiff’s embryo in another woman, and although neither of the plaintiffs suffered physical injuries, the appeals court ruled that the couple had suffered substantial emotional injury due to the defendants’ breach of their duty of care.
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Damages for pain and suffering, including mental anguish, date back to Roman delicts, which is equivalent to today's tort system. The basic Roman delicts were iniuria (injury to person) and damnum iniuria datum (damage to property, including slaves). Under iniuria, the wronged party had to show that the tortfeasor acted willfully and intentionally to recover damages. The action was based on the plaintiff's "sense of outrage" and not on actual economic loss. Therefore the plaintiff could be compensated for "pain or distress of mind or body" in addition to any pecuniary damages. Whereas iniuria required a showing of ill will, damnum iniuria datum only required a showing of negligence. Eventually, Roman law evolved into only compensating for pain and suffering where the tort was intentional and only providing pecuniary damages in the sole case of negligence.
Thank you for your response. I guess what it comes down to if I want to see any money out of this is to first spend the money at a doctor (as I mentioned I hate hospitals, and E.R services are the only ones who bill you after the fact.) I just don't understand why one would have to pay a professional to examine something and tell me what I already know, that no bones were broken and I'll just be sore for awhile. The company has video of my being hit by this equipment, a couple employees saw it. I documented the bruising after. Why do I need someone to tell me "you'll be alright, it'll just be sore for awhile," to justify what happened to me that day, did happen, and it was in no fault of my own? The fact that it happened, was witnessed & recorded, & I have photos of the bruising, isn't enough for me to win in small claims court?
Bringing a medical malpractice claim is not a thing to be taken lightly. Malpractice lawsuits are expensive, time consuming, and can open you up to public inspection. And, unlike most other types of personal injury claims, case trends show a tendency toward favoring doctors and other care providers, not injured plaintiffs. Settlement, too, is far more difficult in a malpractice case due to a doctor’s ability to refuse to settle, regardless of whether his or her insurance company wants to pay. Simply put, even the most winnable malpractice case is still an uphill battle with little or no guarantee of success. Should you sue your doctor for malpractice? Perhaps, but consider what follows before you do.