If there's two words no one in Connecticut wishes to hear from his or her doctor, or the physician treating a loved one, they are: "I'm sorry." That is because those words are usually followed by some form of bad news, possibly even the worst news possible. Sometimes, for people in such situations, everything after such a statement becomes a blur of emotions and non-rational reaction. The apology, however, is also standard practice by medical professionals when it comes to unexpected or unwanted outcomes of treatment.
Previous posts here have discussed the concept of "contributory" and "comparative" negligence as defenses to damages caused by another person's negligence. To refresh, the idea is that if both parties were negligent, the amount that a plaintiff can recover can be reduced or eliminated altogether, depending on the percentage of fault. While this may seem more likely to occur in cases like motor vehicle accidents or slip and falls cases, Connecticut law makes it clear that such defenses are available to defendants in medical malpractice cases as well.
In a typical negligence case, the plaintiff must show his injuries were caused by someone to who owed the victim a legal duty and that the defendant breached that duty by not acting as a reasonable person would under similar circumstances. A medical malpractice case is similar to a typical negligence case in many ways, but one big difference applies to the reasonable person standard. Because medical training is so specialized, a medical provider's reasonableness is judged not against the typical person, but to the standards of his or her profession.
This blog has discussed several aspects of medical malpractice cases in Connecticut. We've touched upon some of the filing requirements, and several of the aspects of informed consent in the context of pursuing damages for injuries that occur due to the negligence of health care professionals. But once a case has been tried, and a verdict has been returned for a plaintiff, what happens next?
A few weeks ago, we discussed the concept of "informed consent" with regards to medical malpractice cases in Connecticut. Basically, medical professionals have a duty to ensure that patients understand the risks and benefits of a certain course of medical treatment, that they are aware of feasible alternatives and that they consent to going forward with the treatment. But what does this mean, in practice, to a person who has been injured and is attempting to recover for his or her medical expenses and other losses due to a lack of informed consent? One of the main important concepts in consent-based medical malpractice cases is "materiality." When a patient is informed about a medical treatment or procedure, he or she must be given all information regarding the material risks of the treatment. In this context, "material" information is that information which a reasonably prudent person would take into account when deciding whether to submit to the treatment. Note that this is an objective, rather than subjective standard. This means that materiality is not based upon what this particular patient may have thought, but what a hypothetical reasonable person would have found important. The second important idea in malpractice cases based upon lack of informed consent is that of "proximate cause." Under Connecticut law, this means that a person injured by a medical treatment must show that if disclosure of material risks had been made, a reasonable person would not have consented to the treatment. Again, the state of mind of the particular patient involved is not the standard, but rather whether a hypothetical reasonable patient would have found the risk significant enough to mot submit to the treatment.
We've recently discussed various issues that can be relevant in bringing medical malpractice cases in Connecticut. These include some of the procedural requirements, as well as how such cases differ from other negligence cases, and on what factors a court may rely to determine whether a case merits being judged according to those differences. We've touched on the fact that medical professionals have a standard of care that they must meet when treating patients. This week, we'll take a look at a related, but different, duty the law imposes on medical professionals: that of informed consent.
About a month ago we discussed the basic elements required for a claim in Connecticut to be considered medical malpractice rather than a traditional negligence or other tort claim. You may remember that we identified three prongs that arise from the state's case law that, if present, require a suit to be handled under the Connecticut medical malpractice law. These are: that the defendant is sued in his or her capacity as a medical professional, that the negligence is of a medical nature and is part of the doctor-patient relationship and that the harm alleged involved medical judgment and was substantially related to medical treatment or diagnosis.
The last time this space discussed medical malpractice we touched on the difference between the standards that are used in a traditional negligence case and those used in medical malpractice actions. You may recall it has to do with the "reasonable person" standard used in the former cases, and the reasonable professional exercising the accepted standard of care in the latter. While this may make sense in theory, how, in practice does one know which standard to apply?
We've previously discussed in this space that many medical malpractice suits in Connecticut are based on the concept of negligence. Negligence is a legal concept that comes down to us from the common law, which has its origins in England a long time ago. Suffice to say the basic idea of negligence has changed through the years and is a bit more well-defined now that many states have codified what it means and the methods of showing it in court. But, while medical malpractice cases may often rest on a negligence theory, there are some differences that should be understood.
Mistakes made by medical professionals can have devastating consequences. Despite their years of training, doctors and other people in the health care industry make errors that can harm their patients. In such situations, patients harmed by a medical professional's error may want to take legal action. First of all, however, the state of Connecticut requires that anyone filing a medical malpractice claim based upon negligence submit a 'good faith certificate' along with the initial petition.