Personal injuries produced by medical malpractice

Medical Malpractice

I mention medical malpractice only briefly because medical malpractice although a type of personal injury is so complicated that it would require its own book to explain completely. Also, there are major differences in medical malpractice laws among the states.

Medical malpractice is, in its most simple form, negligence committed by a medical professional in the course of medical treatment. This can be a doctor, nurse, psychiatrist, psychologist or just about any other type of health care provider. In a medical malpractice action, the plaintiff sues a medical professional for injuries which were caused by the negligence of the medical professional during medical treatment.

As you might be aware, there is a lot of controversy in many states over medical malpractice. Doctors often complain that they have to pay too much for medical malpractice insurance. Insurance companies complain that there are too many lawsuits and that juries give too much money and that greedy injury lawyers file frivolous cases. As with any issue, there are many sides to the story and the situation is not as simple as the insurance companies or the doctors or the injury lawyers would like you to believe. There are many complex factors which control the costs of malpractice insurance. Also, there are some bad injury lawyers who file bad cases. But for the most part, medical malpractice actions are legitimately filed by injured people who deserve reasonable compensation for their injuries.

Medical malpractice cases require the use of expensive experts. It is not unusual for the costs of a medical malpractice case to reach $20,000 to $100,000 or more. Because of this, to suggest that injury lawyers commonly file frivolous medical malpractice cases knowing that they will have to risk large amounts of money in costs does not make a much sense as some talking heads believe.

Intentional Injuries

Intentional torts are torts that are not caused by negligence. They are not accidents. Unlike negligence torts, where the perpetrator does not intend to cause personal injuries, with intentional torts the perpetrator does intend to cause personal injuries.

The most common types of intentional torts causing personal injuries are assault, battery and intentional infliction of emotional distress.

Many people are unaware of the technical difference between assault and battery. Under the traditional definition, assault occurs when someone puts another in fear of imminent personal harm. With assault, there need not be any contact between the perpetrator and the victim. For example, if someone raises a fist to threaten someone else and the threatened person believes that he is about to be hit, this is an assault.

Battery, on the other hand, is an unwanted harmful or offensive contact. So, if you hit someone who did not welcome the hitting, you have committed a battery. Not matter how hard or softly you hit that person. Also, the contact need not be harmful to constitute a battery, but need only be offensive.

If you pat your buddy on the back and he does not mind, this is not a battery. But, if you knock a tray out of a waiter’s hand because he made you angry, this may not be harmful but it is offensive; and it may therefore be battery.

Battery can occur in a host of other situations as well. For example, rape is a form of battery.

Another example of battery involves surgery. If a surgeon does not fully inform a patient about the risks of a surgery and the patient consents to the surgery based on intentionally false information given by the doctor, the doctor may have committed battery by doing the surgery if the patient would not have consented if he or she had known all of the true facts about the surgery.

For example, suppose a surgeon has developed a new type of surgical procedure to treat knees. The doctor has never done the procedure before but is eager to try it out because he or she is certain it will work very well. The doctor lies to the patient and tells the patient that the procedure is common, that he or she has performed it hundreds of times and it has a very high success rate. In reality, the procedure has been criticized by other doctors and has never been performed by anyone. The patient agrees to the surgery based on the false information given by the doctor. The surgery causes the patient to lose complete use of her knee, whereas without the surgery, she would have been able to continue walking with a cane.

If the patient would not have agreed to have the surgery if she had known it had never been performed and/or that other doctors had criticized it, then the doctor has probably committed a battery. Today, many states have gotten rid of the distinction between assault and battery in their criminal systems, tort systems or both. Instead, they use only one of the two terms, usually “assault,” to refer to both torts. So, in many states, an assault is called an assault whether it is technically either an assault or a battery.

There is an important issue that you should be aware of with regard to intentional torts. Many insurance policies automobile, homeowner and other types of liability insurance policies exclude coverage for intentional acts. The idea is that insurance is meant to cover liability for accidents. Of course, this means that victims of intentional acts are unlikely to receive any compensation for their injuries if the defendant does not have assets.

To overcome this problem, some states have government administered compensation funds for victims of crimes (most intentional torts are also crimes). These funds typically pay for the medical bills and lost wages of victims, but do not usually pay for pain and suffering, so they are only a partial replacement for the lack of insurance. It is sometimes possible to get around an intentional acts exclusion by alleging that the defendant’s conduct was grossly negligent rather than intentional.

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