How to Sue a Doctor for Pain and Suffering
If you recently experienced either physical or mental suffering as a result of a doctor’s negligence, you may be able to file a medical malpractice case with an experienced attorney. There are several specific things you will need in order to do so.
In this article, we’re taking a closer look at how to sue a doctor for pain and suffering.
How to Sue a Doctor for Pain and Suffering
When Americans interface with the healthcare system, they have a reasonable expectation that doctors will work hard to help them get well. If nothing else, physicians should at least “do no harm” as the Hippocratic oath suggests.
Unfortunately, this isn’t always the case. Sometimes, doctors fail to fulfill their medical duties, engage in patient abuse, or even engage in outright negligence, causing extreme harm to the people they serve. This can result in a number of negative consequences for victims, including pain and suffering, personal injury, or even wrongful death.
While the HHS does make it possible to complain about a doctor who has mistreated you, there are other options. You can sue the doctor in civil court. However, your case must meet certain basic requirements in order to succeed.
Here’s how to sue a doctor for pain and suffering.
Basic Requirements for a Successful Case
1. A doctor-patient relationship exists
You must be able to demonstrate that you had a direct relationship with the doctor you intend to sue. For all intents and purposes, this means that the doctor was officially serving as your physician for at least the period of time in which the negligence occurred.
You cannot sue a physician for acts that occur outside of a professional doctor-patient relationship. This includes overhearing a physician giving someone else advice and/or witnessing negligence that happens to someone other than you or the person you intend to represent.
There are two main exceptions to this standard: if you are a parent suing on behalf of a child, or if you are suing for the wrongful death of a spouse. The courts will still ask you to prove that the doctor served the patient in question.
2. Some form of negligence occurred
Having an unpleasant treatment experience is not necessarily proof of incompetence, even if your treatment fails. For example, you cannot sue a doctor because you experienced an expected level of pain after major abdominal surgery.
On the other hand, you may have a case if the physician’s incompetence results in a botched surgery that results in long-term pain.
The key to determining if the doctor behaved negligently is in whether or not they followed all known medical standards of care. This is loosely defined as the level of care physicians with the same level of experience and training are expected to provide. For example, most people would reasonably expect a surgeon to wash their hands thoroughly before entering the operating room.
Generally, the only way to prove a doctor failed to adhere to medical standards of care is to bring in an expert witness. This may be another doctor, a medical investigator, or some other person in a position of authority.
3. Negligence led to pain and suffering
It isn’t enough to prove that the doctor behaved in a way that was incompetent or somehow negligent. You also need to prove that the incompetence directly resulted in the pain and suffering for which you are suing.
Proving this link is rarely ever cut and dry, especially if the patient in the case was already suffering from one or more illnesses. It can be very hard, even for experts, to identify whether the pain and suffering is a result of the illness or of something the physician did.
Here’s an example: a patient with lung cancer undergoes surgery to remove a large tumor. The doctor successfully removes it, but in the process, the patient suffers from a pulmonary embolism (blood clot in the lung). This is an unfortunate side effect of chemotherapy, and there is no proof of wrongdoing. The doctor cannot be sued because it was the chemotherapy that caused the clot rather than negligence.
4. You experienced some form of loss
When you sue a doctor, you are suing for “damages,” – compensation that makes up for the loss you experienced as a result of their negligence. If they fail in their duty of care, yet you experience absolutely no consequence or loss (other than annoyance and frustration), you probably do not have a case. The courts can only enforce damages in the event of actual loss.
This article specifically discusses pain and suffering; this does qualify as a form of loss for which you may be able to receive damages. However, other types of loss often occur in medical malpractice cases. These include incurred medical bills, loss of income, loss of enjoyment, loss of consortium, and emotional distress.
Reasons for Medical Malpractice Cases
Not sure if you have a case? Patients sue doctors for pain and suffering in a variety of situations; each leads to a loss in a slightly different manner. The best way to determine your chances of success is by consulting with an attorney.
Still, there is merit in understanding which scenarios often lead to medical malpractice with pain and suffering. This can help you identify potential red flags while also giving you a place to start reviewing the evidence.
There are several common reasons to explore a medical malpractice case …
Failure to diagnose
When a physician incorrectly diagnosed you or fails to diagnose you at all. If other competent doctors would have discovered the diagnosis in routine investigations, you may have a case.
Delayed diagnosis
When a doctor delays diagnosis, either willfully or unintentionally (e.g., failing to run the right tests), leading to poor outcomes or direct patient harm. There must be a reasonable expectation that other doctors would have diagnosed you faster.
Improper treatment
When a doctor delivers treatment in a way that puts the patient at risk (e.g., botching a spinal surgery, leading to permanent paralysis). There must be evidence that they failed to use skill or care.
Failure to seek informed consent
When a doctor fails to inform you of the risks of treatment and/or treats you without your consent e.g., a doctor prescribes you opiates without warning you of the risk for addiction).
Failure or refusal to follow an Advanced Medical Directive (AMD)
If you sign an AMD that indicates you should not be resuscitated, yet the doctor revives you anyway. This is especially true if you are left with disabling symptoms like pain or intense suffering.
Keep in mind that negligence, harm, and loss can happen in other scenarios, too. These examples are only intended to help you better understand malpractice. In fact, the only foolproof way to ensure you are making the right decision, whether you opt to move forward with your case or not, is to connect with a lawyer.
Conclusion
Now that you know how to sue a doctor for pain and suffering, you can determine whether or not you have a potential medical malpractice case. If you’re not sure, consider contacting a lawyer for guidance.
Medical malpractice cases often involve a complex process in which you must follow very carefully. An experienced attorney will be able to help you through the process, answer questions, and form your case.
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