Health Care Justice
Medical Malpractice in Rutland
At Larson & Gallivan Law, we are interested in health care justice, not just “medical malpractice” cases. We believe that people in Vermont (including Vermonters, visitors, citizens, non-citizens, farmworkers, refugees, tourists, and every other human being) have the right to decent, humane, and appropriate medical care. Most of the time, we think Vermont doctors and hospitals do a pretty good job of providing care and helping people heal. We think most practitioners care for aging and dying with dignity and compassion, too. But sometimes they don’t. In those cases where the medical system has failed to live up to its duty to provide humane and appropriate health care, we want to represent those who are injured or killed by those failures. We want better and more just health care and our role is holding the system accountable to live up to its promises.
What is Medical Malpractice?
A medical malpractice claim is a lawsuit against a medical care provider for injury to the patient and the patient’s close family members (typically the patient’s spouse or partner and children). The truth is, doctors, make mistakes – even good doctors. Hospitals and offices cut corners sometimes, or overlook important safety precautions. The thing about medical care is that it’s too important to make obvious errors because people can be badly injured or killed. They could make a diagnostic error, deviate from the standard course of treatment for a condition, or directly injure a patient. This could leave the patient with a catastrophic injury or ruin them financially. There are four parts of a medical malpractice claim: duty, breach, causation, and damages.
- Medical Duty. The first part of a medical malpractice claim is called a “duty.” This means there was a rule for treatment that the medical provider is expected to follow. You can think of this as a “rule of the road.” For example, in birth injury cases, there is a duty on the hospital to have someone available who is able to intubate a baby who needs help breathing. There are thousands of rules like that, of course, some of which are obvious and some of which are not. “Don’t give a kind of antibiotic to someone who is allergic to that kind of antibiotic” is another rule. Other rules are important to specialty doctors, such as what treatment to give to a heart patient or what types of x-rays should be used to look for breast cancer. If you think about it, the whole medical field is a series of rules, and everyone in the medical system is responsible for knowing a certain set of those rules and applying them to patients.
We should be clear though that many of these rules are broad and require a doctor, nurse or specialist to use their training and experience to make a judgment call. This is called the range of acceptable practice. In some cases there is a broad range of acceptable practice. For a patient to have a medical malpractice claim, there must be a medical duty that can be identified.
Finally, in Vermont medical providers are required to follow one general rule: a medical provider must provide the care that a reasonably prudent medical provider in the same specialty and a similar geographical area would provide. This is a complicated “lawyer” way of saying that doctors have to follow rules, just like the rest of us.
- Breach of Medical Duty. The second part of a medical malpractice case is a breach of that medical duty. Basically, this just means that the doctor or practitioner didn’t follow the rule, or gave some medical treatment that was outside of the range of acceptable practice. In the examples above, if a hospital fails to have someone available to intubate a baby in need of an airway, that’s a breach of the medical duty. If a doctor prescribes a medication that the patient has a documented allergy to, that’s (probably – unless it was absolutely necessary) a breach of the medical duty, too. If a radiologist looks at a mammogram and should notice a lump that requires a biopsy but just isn’t paying attention, that’s a breach of the medical duty.
- Causation. The third part of a medical malpractice claim is called “causation” and it just means that the breach of the medical duty “caused” harm. Sometimes, a breach of the duty doesn’t cause harm. For example, if there’s nobody available to intubate a baby but the baby is breathing just fine, there’s no harm caused and so there’s no medical malpractice claim. More often, though, this part of the case is trickier than that. Often, injuries may be caused by different things – one of them a breach of the medical duty but it could also be caused by the underlying injury.
In almost all medical malpractice cases, we must hire medical experts to give reports on causation. This means going out of Vermont and hiring a medical professional to review medical records and literature to determine what the possible causes of an injury are and make sure that in this case the “cause” was the lack of good treatment, not something else. This can be a very expensive proposition, and it’s why we can only take cases where the damages are high.
- Damages. The final part of a medical malpractice claim is called damages. Damages means that the doctor’s failure to follow the treatment rules caused actual harm.
Most of the time, when a doctor makes a mistake it causes some kind of harm. But for lawyers who are looking at medical malpractice claims, including us at Larson & Gallivan Law, damages have to be very high before we can take the case. This is very frustrating because we sometimes see cases where patients were treated disrespectfully or carelessly but nothing went terribly wrong. For example, sometimes a doctor fails to diagnose a disease for a long time. Maybe the patient goes to the E.R. three times before getting the x-ray that shows that his foot is actually broken and needs a splint or cast. But the cast still works and eventually the foot heals. Is this a case of medical malpractice? Well it certainly sounds like it is (duty, breach and causation!) but the damages are not huge because the foot heals in the end. This isn’t a case we could take because damages are (comparatively) low.
This problem with only taking high-damage cases is very frustrating for us as lawyers. We don’t really want it to be all about money. But it’s very expensive to handle a medical malpractice case, and we usually pay experts tens of thousands of dollars (it usually costs us $100,000 to do a medical malpractice case) so we have to be very careful about cases we handle.
Medical Malpractice Attorney
How Common is Medical Malpractice in Vermont?
Vermont has a fairly low rate of medical malpractice claims, but a pretty high rate of medical accidents for our population. According to the National Practitioner Data Bank [https://www.npdb.hrsa.gov/analysistool/], Vermont reported 14 medical malpractice reports in 2019. This is down from a high of 57 in 1998. At first glance, this seems like a good trend – medical malpractice claims have gone down to almost a quarter of what they were 20 years ago! But the data is a little more complicated than that. Adverse Action Reports – disciplinary actions against medical care providers that did not necessarily lead to malpractice claims – for the same years were 81 in 2019 but only 30 in 2001. Over that time period, in other words, problems with medical care (adverse action reports) more than doubled while medical malpractice claims fell by three quarters. What’s going on here? While we don’t know for sure, it is safe to say that fewer people are filing lawsuits against doctors, nurses and medical facilities such as hospitals than they did not all that long ago, even though medical error reports have increased substantially.
Medical Malpractice in Vermont
Types of Medical Malpractice Cases
Medical malpractice claims can be brought against hospitals, physicians, or nurses. At Larson & Gallivan Law, we handle a wide variety of medical malpractice cases, including:
- Medication errors
- Misinterpretation of MRIs, X-rays, CT scans, etc.
- Surgical mistakes
- Emergency room errors
- Experimental medicine complications
- Failure to diagnose a heart attack, stroke, and other conditions
- Failure to diagnose lung, breast, prostate, cervical, or testicular cancers
- Failure to monitor patients on medications
- Birth trauma
- Cerebral palsy
Areas of surgical error include:
- The doctor fails to discuss alternative treatment options or warn of known risks of the procedure
- The doctor fails to take steps to avoid known risks of surgery
- The operation is performed on the wrong part of the patient’s body
- The surgical team leaves a foreign object (often a forceps or sponge) inside the patient’s body
- The anesthesiologist uses the wrong dose or type of anesthesia
- The nurses fail to watch vital signs such as oxygen levels and heart rate during and after the operation
- The surgeon nicks or cuts other internal organs while performing the operation
- The surgical team or hospital causes an infection by using unsterile surgical instruments or practices
- A hospital fails to provide safe postoperative (recovery) care
- The doctor fails to diagnose or recognize complications from the surgery
Health Care Justice
What You Can Expect In Your Medical Malpractice Case
There are a few things you should know about your medical malpractice case.
You can expect a long fight. Insurance companies for doctors and hospitals almost never settle the claim without filing a lawsuit. Unlike car crash cases, the hospital and the defense lawyers will fight every step of the way in every case, and are not even going to pretend to make a good-faith effort to treat you well.
Your medical malpractice claim will take two to three years to complete.
You need to bring your lawsuit within the timeframe of the statute of limitations. This statute is a little tricky in Vermont – call the lawyers at Larson & Gallivan Law for assistance.
You can expect to turn over all of your medical records to be reviewed by the doctor’s legal team.
You will have to give a “deposition” which is an interview under oath.
You’ll want the best medical malpractice lawyer you can get.
If you hire us at Larson & Gallivan, we will probably put together a team with at least one other law firm to handle your case. This is because it will take a number of lawyers and a lot of money to treat your case with the care it requires.
You should get a legal review of your case as quickly as possible because sometimes it takes as long as three months or more just to determine whether a medical malpractice case should be filed.
Consult a Rutland VT Medical Malpractice Attorney
If you believe a doctor’s negligence caused your injury or worsened your condition, contact us to schedule a consultation. We won’t charge you for the consultation, and we work on a contingency fee if we take your case. So don’t worry about the costs.
If you suspect you are a victim of medical malpractice, contact Larson & Gallivan Law to speak to a Rutland VT Medical Malpractice Attorney today.