Pursuing a Medical Malpractice Claim in Vermont

When we need medical treatment, we place our health in the hands of medical professionals. Doctors, surgeons, nurses, anesthesiologists, and other health-care providers all need years of specialized schooling and training. They are responsible not only for treating our conditions, but also ensuring that we stay safe during treatment.

But medical professionals can and sometimes do make mistakes. Those mistakes often have devastating consequences and can even result in death. People who were hurt through medical malpractice have the right to seek financial compensation.

Examples of medical malpractice

Patients can be harmed because of an action taken by a medical professional. One example would be prescribing the wrong medication or performing surgery on the wrong part of the body. But patients can also be harmed when a medical professional fails to take action – for example, failing to order a diagnostic test or failing to diagnose a fatal illness.

Examples of common medical malpractice cases include:

• Hospital injuries – People go to the hospital so they can get better. But mistakes or miscommunication can result in infections or physical injury.
• Surgical errors – Any type of surgery can be complicated. But when medical professionals make mistakes, patients can suffer serious harm. Examples of surgical errors include anesthesia errors, wrong site surgery, misuse of surgical tools and unnecessary surgery.
• Misdiagnosis – When a patient is experiencing troubling symptoms, a doctor is expected to order appropriate tests to make a proper diagnosis. When the actual illness or condition is not diagnosed correctly, the patient does not get needed treatment – and may get unnecessary treatment with its own side effects.
• Medication errors – Patients can receive the wrong medication or wrong dosage of medication. This can happen because of a doctor error or a mistake made by a pharmacist when filling a prescription. The patient does not get treated with the correct prescription and may suffer side effects.
• Birth injuries – Mistakes by medical professionals can result in harm to the baby or mother. The baby may be physically injured during labor or suffer an injury such as cerebral palsy or infections that have lifelong implications.

When is it medical malpractice?

When the condition of a patient does not improve, it is not always because a medical professional did something wrong. There are four legal elements that must be established in a successful medical malpractice claim:

• The medical professional owed a duty to the patient. This simply means that a doctor or other medical professional agreed to provide care for a patient. This can include covering patients for a colleague, providing care at a free clinic, or providing emergency care after an accident.
• The medical professional breached the standard of care. A “standard of care” generally refers to accepted practices a reasonable professional in a similar situation would have provided to a patient. Expert witnesses may be needed to explain standard of care to a jury and point out how it was not followed.
• The patient was injured as result of this breach. These injuries must be different from the injuries or illness that the patient already had. Evidence must be presented that clearly demonstrates the departure from the standard of care caused the injury.
• The patient suffered damages as a result of the injury. Examples of damages can include medical expenses for treating the injury, lost wages if a patient missed time from work, loss of future income, chronic pain and mental anguish.

In other words, not every medical mistake is medical malpractice. The law doesn’t expect doctors and nurses to be perfect. The law does, however, expect them to follow established standards of care, and provides recourse for patients injured by failure to meet those standards of care.

Proving medical malpractice

Medical professionals often deny doing anything wrong when a medical malpractice claim is filed. The burden of proof is on the plaintiff to show that malpractice was the cause of the adverse outcome. An experienced medical malpractice attorney can investigate and build a case that proves the legal elements of malpractice. A lawyer may use:

• Medical records – This includes documentation of diagnostic tests ordered, doctor’s notes, the treatment and/or medication that was recommended, surgery that was performed and the results of any follow-up examinations.
• Expert testimony – An experienced doctor with a similar specialization as the defendant can discuss how standards of care were not met and detail specific actions that should have been taken.
• Witness testimony – This includes the testimony of people who can provide information about something they observed.
• Demonstrative evidence – This is evidence jurors can see for themselves. Video, photos, X-rays, CT scans, MRIs, models and anatomical exhibits and computer animations can all be used to help jurors understand the procedures involved in the case.

Vermont law requires most malpractice lawsuits to include a “certificate of merit,” which is a statement that the injured patient (or their attorney) has consulted with a qualified medical expert who has described the applicable standard of care, indicated a reasonable likelihood that the defendant medical professional failed to meet that standard, and indicated a reasonable likelihood that the failure to meet the standard of care caused injury to the patient. In other words, to even move a malpractice claim forward, you need a medical expert to sign off on the basic merits of the case.

In Vermont, the statute of limitations for taking legal action after an injury caused by medical malpractice is generally three years from the date of the incident or two years from the date “the injury is or reasonably should have been discovered” – whichever came later. But a case cannot be filed later than seven years from the date of the incident, except for cases involving the discovery of a foreign object in the patient’s body. Ultimately, the legal time limit depends on the circumstances – only an experienced medical malpractice lawyer can advise you as to the applicable statute of limitations in your case.

This is why it is best to get legal advice as soon as possible if medical malpractice is suspected. It can take months to gather evidence, consult with relevant medical experts, and build a strong case. And the more time that goes by, the more likely it is that witnesses will forget important details and that evidence will be lost or even destroyed.

How much compensation can be recovered?

Because every case is different and there are so many factors that can affect the outcome, the amount of compensation that is recovered in a medical malpractice case can vary widely. An attorney will seek compensation for the damages suffered by the patient. These damages may include current and future medical expenses related to the injury or illness caused by the malpractice, lost income, lost future income, home modifications and pain and suffering.

Pajcic & Pajcic, which has an office in Grafton, has obtained results in medical malpractice cases in other locations that include:

Talk to a Vermont medical malpractice lawyer

If you or a loved one suffered serious health problems you suspect were related to medical malpractice, it’s important to talk to an experienced attorney. A lawyer can review the details of what happened and discuss your legal options. A lawyer can also answer any questions that you have. There is no cost for an initial consultation.