Medical Malpractice and Compensation

Statistics on medical errors are skewed due to underreporting and careful charting by medical personnel who are taught to chart "defensively." That is, they chart with litigation in mind. Countless medication and other errors are made, and some are charted as if given or done correctly. Many serious errors are minimized in the charted account, or written in ways that shamelessly scapegoat fault to the patient or others.

A common example of scapegoating is to label a patient as having "anxiety," effectively discrediting both his judgment and recount of what was said or done during his medical care. This "diagnosis" is often added to patients' files when they display annoyance or anger with a physician.

Laws are in place to protect "Incident Reports" from discovery. Incident reports document every detail of errors and accidents. Such laws were intended to encourage whoever made the error to give a complete and truthful account of what happened in an effort to learn how the incident came about. This knowledge helps in deciding how to make improvements or other changes to the appropriate systems or behaviors, thereby reducing the probability of it recurring. Incident reports are barred from discovery because of their potential value in eliminating the errors if protected, and the potential for falsification of the facts if they were available to be used in litigation.

Identifying knowledgeable parties who can reveal this protected information through deposition can indicate which people, equipment or supplies may have contributed to the victim's injury.

Your right to compensation for malpractice, as well as the amount, will be determined by a number of laws and factors. Some of these are:

• Statutes of limitations. You claim must be filed within a specified time limit, determined by the type of claim, age of claimant, and other factors. An attorney can tell you which factors apply to your claim.

• Plaintiff's degree of fault. Was the injured party in any part responsible for the injury he suffered (e.g., giving false medical history or withholding medical history facts)? You must have contributed 50% or less to the cause of the injury to be eligible to file a malpractice claim.

• Joint and several liability. Where there are multiple defendants, these liabilities are taken into consideration, making all parties responsible for the full amount in the event any or all of the others are unable to satisfy the judgment. It is critical to identify any possible contributor to the malpractice event to increase your chances of receiving your compensation award.

• Limits on claim. There is no cap on the amount of a malpractice claim. However, South Carolina has a Patient Compensation Fund that, if the practitioner is found liable and is a member of this fund, will have an additional impact on the outcome of your compensation.

• Other legal considerations. These include periodic payments, payments from other sources (e.g., insurance), immunity, and many other laws and contributing factors.

With so many variables determining whether you qualify to file a claim, see an attorney early for an evaluation. Please visit the website of McWhirter, Bellinger & Associates, P.A. for more information

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