Medical Malpractice is a legal cause of action that allows a person to recover money damages when another person breaches a duty of care owed to them, which results in injury. In Medical Malpractice, a party is simply asserting that they were injured because a medical practitioner breached a standard of care which resulted in injury. To prevail on a medical negligence claim, one must prove:

  1. A duty requiring the defendant to conform to a certain standard of care;
  2. Breach of that Duty;
  3. A causal connection between the breach and injury; and
  4. Damages

However, there are two separate types of negligence claims brought against medical professionals: (1) medical malpractice, and (2) informed consent.

Medical Malpractice is traditionally what people think of when people think of a medical negligence claim. Medical Malpractice claims allege that a person was injured by a physician or other practitioner by improperly providing some affirmative act of care, or by the negligent omission of care. On the other hand, an Informed Consent claim alleges that the physician failed to disclose information to the patient, and discuss material risks and dangers inherently or potentially involved with the treatment in question. It also alleges that the unrevealed risks actually materialize, causing injury to the patient, and a reasonable person would have decided against the therapy had the risks been disclosed. Ohio Adopts what is known as the reasonable patient standard. This standard requires a physician to provide any information to which a reasonable patient would attach significance in deciding whether to undergo the treatment.

However, there are a number of issues that will arise in these claims. What would a reasonable person attach significance to? Can it be proven that this particular patient would have made a different decision if they were properly informed? What happens if the patient is unconscious, or for some other reason is unable to make the decision of whether to undergo the treatment? What medical staff and professionals have a duty to make these disclosures? The answers to these questions can change whether a person may recover damages for the injury in question.


Res Ipsa Loquitor

Some injuries cannot have occurred unless someone acted negligently. Thus, the doctrine of Res Ipsa Loquitor allows for an inference of negligence-based off the type of injury suffered. This is a presumption that the party was in fact negligent. It is used when there is a gap in the evidence so that a traditional negligence claim cannot be proven, but the injury was caused by a person or object within the exclusive control of the medical professional.

Res Ipsa Loquitor can be a bit easier to understand when there is an example. For instance, assumed a patient undergoes surgery, and afterward a foreign object is left inside of that patient, like a surgical towel. The patient may not be able to prove exactly how the towel was left inside of their body, who was responsible for taking it back out, or any other particular circumstances going on in the surgery leading to this injury. However, Res Ipsa Loquitor solves these evidentiary concerns, as the injury in question would not have occurred if the defendant would have met the necessary standard of care to that patient. Thus, though the patient is unable to prove many things about the incident, they will still be able to recover damages for the injury that they suffered.


Statute of Limitations and Statutes of Repose

There are also time restrictions on when a medical negligence claim may be filed. These restrictions are imposed through what is known as a statute of limitations. A statute of limitations refers to the amount of time that a person has to file their case. If a party files a case after that set amount of time has run, the courts will not hear the claim, and the claim is thrown out. In Ohio, this is governed by R.C. 2305.113(A) which provides that a medical negligence claim must be commenced within one year of when the cause of action accrued. This language is trickier than it appears on its face—when does a cause of action accrue? The cause of action accrues, and the statute of limitations begins to run when the patient discovers or should have discovered, that they have suffered an injury, or when the physician-patient relationship for that condition terminates. Thus, in Ohio, a person has one year after either of these occur to file their claim.

However, Statutes of Repose also serve as a time bar to these claims. This is a similar concept to a statute of limitations. However, a statute of repose is based not on the discovery of the injury but is measured from the date of the last culpable act or omission of the medical provider. Statutes of Repose provide a longer time frame than a statute of limitations, and in Ohio, the statute of repose bars claims that are filed four years after the last culpable act of the medical provider. The reasoning behind this is that a standard statute of limitations could potentially never bar a claim as it will not bar a claim until a year after the discovery of the injury. Thus, there is potentially no cutoff date for a medical practitioner’s liability. As a result, a statute of repose serves to protect physicians so that claims are barred unless brought within four years of the conduct giving rise to the claim.


Negligence Per Se

Negligence per se is a variation on typical negligence and medical negligence claims. Negligence per se suits are brought when a person violates a statute that was designed to set a standard of care, causing an injury. However, the party bringing the suit must prove that they are within the class of people that the statute was designed to protect. For example, a statute prohibiting drivers from driving their cars on the sidewalk is designed to protect pedestrians walking on the sidewalk. In a negligence per se case involving a physician, for a party to prevail on their claim, they must show that there was a statute violated by the physician and that they, the patient, were within the class of persons that the law was designed to protect.

When such a statute was violated, negligence per se can make it easier for an injured per se to recover on their medical negligence claim. However, there are numerous defenses, exceptions, and issues that will arise in these cases.


Recovery of Damages

Once medical negligence has been proven, there are issues that arise with the actual recovery of damages. The general rule in tort cases like a medical negligence claim is that the measure of damages is the amount of money that will compensate and make the plaintiff whole again. In bringing or litigating these claims, it is important to understand the types of damages involved in these cases, and what the differences in them are. Firstly, economic damages refer to the damages that reimburse a victim for the harm that they suffered financially from the malpractice. This is typically easy to quantify and will look at things like lost wages, medical bills, or lost profit. Noneconomic damages on the other hand, while recoverable, can be more difficult to prove. For example, pain and suffering are one type of non-economic damage that may be recovered. It is easy to see how difficult it may be to quantify an exact dollar amount to represent another person’s pain and suffering. Additionally, there are limits on the amount of non-economic damages that may be awarded. In Ohio, R.C. 2323.43 limits noneconomic damages to the lesser of $250,000 or three times the amount of economic damages awarded. In other situations, the cap may be $500,000. Which cap the court chooses will be dependent on the injury suffered, and is likely to be a heavily litigated issue.

Another type of recoverable damages is called punitive damages. Punitive damages seek to deter and punish intentional and blameworthy affirmative acts on the part of the physician. However, negligence does not have an intent element, so punitive damages are typically not awarded in medical negligence claims. However, they may be awarded when there is a showing of actual malice. So, for example, if a doctor tries to avoid medical records to avoid liability for their negligence, punitive damages may also be awarded to the victim.


Robinson v. Bates

In Robinson v. Bates, a 2006 Ohio Supreme Court case, the Supreme Court imposed a limit on recoverability of damages for medical negligence claims. Before this case, a party could submit all of their medical bills to the jury when the jury decides on the amount of damages to award. However, the jury would not be informed of what the hospital actually received as payment for these medical bills. For example, a party incurring a $10,000 bill at a hospital will often have their insurance company pay the bill, and that insurance actually will pay less than the full amount listed. For purposes of this example, assume the insurance company pays $9,000 and the hospital accepts this as full payment. This poses the question: what is the required amount of money to make the victim whole again? Is it the $9,000 actually paid, or the $10,000 bill that was actually rendered?

The amount of damages to award is a question for the jury, and before Robinson, a party could introduce the full amount of the bill, regardless of what was actually paid. This higher number could be then used in the jury’s determination in how much to award to a victim in damages. The ruling in Robinson still allows the bill’s amount to be submitted to the jury for calculation of damages, but now requires that the jury also be told of how much was actually paid. Thus, juries are now looking at smaller numbers when making their determinations in how much to compensate a victim. While this may seem insignificant in the example provided, this change could have a much more significant impact when the damages are higher, say if the medical bill was $150,000 and an insurance company only paid $20,000.

Were you injured while receiving medical care, or are you a medical provider facing such a claim?  The attorneys at Katz, Pryor & DiCuccio, LLP can help, and the initial consultation is always free.  Please contact us at (614) 363-3500 or to schedule your consultation now.



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