Medical malpractice occurs when medical professionals breach the "standard of care" required of their profession. A medical professional has the obligation to "possess and utilize the care, skills, and knowledge ordinarily possessed and used by other medical professionals engaged in a similar practice in the same or similar localities." Thus the standard of care is a standard that depends up the training and skill of the medical professionals in the locality or similar locality. Cities can differ from rural areas,and the standard varies if the professional is a general practitioner or a specialist.
Medical malpractice is not necessarily a bad outcome, such as an operation that produced problems or death, medical procedures that resulted in injury, or even an accident during surgery. Malpractice is also not the professional's bad behavior such as failure to say he/she is sorry.
Proof of medical malpractice must be provided by other medical professionals, clearly stating that the standard of care was breached. To prove medical malpractice also, there have to be damages.
Damages
I often have people who want to sue, but there are no damages. Damages include any cost to the victim caused by the breach. Without damages, a lawsuit cannot be sustained and will be dismissed. Damages could include emotional damages, but usually unless the emotional damage is outrageous, there must be corresponding physical damage to prove emotional damage. If a doctor makes a mistake, but then rectifies the mistake and no damage occurs, there can be no malpractice.
What a malpractice lawsuit cannot do is to change hospital policies or cause the doctor to lose his license to practice medicine. There must be damages that the victim can be compensated for. If a victim cannot be compensated, then there are no damages.
Contingency Fees and Frivolous Cases
Most medical malpractice cases are handled on a contingency fee basis. That is, the attorney gets paid a percentage if he wins the malpractice case. Thus, not all cases of alleged malpractice may be accepted by attorneys. Without funding upfront, an attorney must invest a significant amount of his own funds to win a case. Thus, unless the attorney feels that there is a good chance of winning the case, he/she will not usually accept a case. Because these cases require medical experts to review the evidence and testify and the extensive production of evidence, the attorney can easily have $50,000-$100,000 invested in the case without a guaranteed payoff. Additionally, Iowa is not necessarily a good state to win personal injury cases. Iowans are generally good, honest, hardworking people who don't necessarily want their neighbors to receive big payouts without a good reason (unlike some other states that can produce big lawsuit payouts). Thus jurors in iowa medical malpractice cases frequently refuse to find malpractice and if they do, often refuse big payouts. Most malpractice claims for these reasons will never go to trial, and most will be rejected by attorneys. Frivolous cases will not normally be handled by attorneys because of the negative return in their investment in the case. However, if an attorney believes that there are significant damages and the standard of care was clearly breached, he/she may take the case.
Informed Consent: The cornerstone of American medical law is "informed consent". "Every human being of adult years and sound mind has the right to determine what shall be done with his own body. Schloendorff v. Society of New York Hospital, 211 N.Y. 125, 126; 105 N.E. 92, 93 (1914). Informed consent is the principle that absent extenuating circumstances, a patient has the right to exercise control over his/her own body by making informed decisions concerning whether to submit to particular medical procedures. A doctor has the duty to disclose to the patient all material risks involved in a procedure. Pauscher v. Iowa Methodist Medical Center, 408 N.W.2d 355 (Iowa 1987). Under Iowa's patient rule standard, the duty to disclose is limited not only to reasonably foreseeable risks, but also to material risks. Petty v. U.S., 740 F.2d 1428 (Iowa 1984). The duty to disclose under the patient rule standard is measured by the patient's need to have access to all information material to making a truly informed and intelligent decision concerning the proposed medical procedure. This is true in elective and nonelective medical procedures. The duty to disclose is not satisfied by medical judgment, but is viewed from the patient's view. Pauscher.
Iowa's informed consent statute is under Iowa Code section 147.137. Under the code, consent in writing meeting the code requirements is presumed that informed consent was given by the doctor. To meet the requirements, the consent must:
1. Set forth in general terms the nature and purpose fo the procedure or procedures, together with known risks, if any, of death, brain damage, quadriplegia, paraplegia, the loss or loss of function of any organ or limb, or disfiguring scars associated with the proceudre, with the probability of each such risk if reasonably determined.
2. Acknowledges that the disclosure of that information has been made and that all questions asked about the procedure or procedures have been answered in a satisfactory manner.
3. Is signed by the patient for whom the procedure is to be performed, or if the patient lacks legal capacity to consent, by the person who has legal authority to consent on behalf of that patient in those circumstances.
Exceptions to the Iowa Informed Consent Statute:
1. Emergencies
2. Unanticipated conditions during surgery
3. Therapeutic privilege (disclosure would pose serious threat to the patient's health)
4. Waiver by patient of disclosure.
Incompetency is not an exception, since there is a right for substituted judgment on the incompetent's behalf. Morgan v. Olds, 417 N.W.2d 232 (Iowa App.1987). Failure to obtain the consent of a surrogate decision maker, breaches the doctor's duty and the doctor is liable for damages. However, only the patient can recover because the duty is owed to the patient. Morgan.
Minors. Consent must be obtained from the parent or legal guardian.
Guardians. Guardians need prior court approval to authorize elective procedures other than routine examinations, move to a more restrictive environment, or withdrawal of life sustaining procedures.
Surrogate decision makers when the patient lacks capacity for consent.
1. Family members
2. Legal Guardians.
3. Persons designated under the Iowa Life-Sustaining Procedures Act (Iowa Code section 144A.7)
4. Attorney in fact under durable power of attorney for health care. (Iowa Code section 144B).
5. Substitute Decision-Making Board (Iowa Code section 135.28).
The difference between medical treatment and negligence or battery is a patient's knowing and voluntary consent to the treatment after disclosure of the risks and alternatives involved in the treatment or in avoiding the treatment. Negligence in medical malpractice is grounded on whether the patient actually consented to treatment without sufficient disclosure of the risks or alternatives to treatment. Moser v. Stallings, 387 N.W.2d 599 (Iowa 1986). If a doctor performs a procedure without obtaining informed consent, the doctor commits battery for which the patient may recover. Morgan v. Olds, 417 N.W.2d 232 (Iowa App. 1987).
Statute of Limitations
Medical malpractice must be filed within 2 years of reasonable discovery of the act resulting in the injury. All actions, though, must be filed within 6 years of the wrongful act or omission. Minors have special exceptions- must file suit within 2 years of the date of injury or by his/her 10th birthday, whichever is later. If mentally ill, the limitation is 1 year from end of the disability. Iowa Code section 614.1(9) (2009).
There is a two prong test- when the patient was aware of the injury and aware of the cause in fact. Rathje v. Mercy Hospital, 745 N.W.2d 443 (Iowa 2008). This issue is when the patient knew or should have known through diligence when the injury occurred or the cause of the injury. This is fact specific and not a matter of law. There is a duty to make a reasonable inquiry to determine the defendant if there is an abnormal death, so the statute of limitations is not tolled merely because the defendant is unknown.Buechel v. Five Star Quality Care, Inc., 745 N.W.2d 732 (Iowa 2008).
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