What Happens When a Patient Suffers Personal Injury or Death During Medical Errors?


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Between 44,000 and 98,000 Americans die in hospital from preventable medical errors annually. That's according to the Institute of Medicine. There are two types of lawsuits that arise when medical negligence has played a role in the personal injury or death of a patient. These are wrongful death, and survivor action.

Wrongful Death

When a family files a wrongful death claim, they make the following argument:

  • The patient died due to medical error that could have been avoided
  • The patient and family members were very close
  • Family members have suffered compensable losses due to the death
  • The hospital or practitioner responsible for the error ought to compensate family members for all damages and losses stemming from the death.

In a wrongful death action, a family won't sue for personal injury inflicted on the deceased. However, members of the family can sue for damage caused to them as a result of losing their loved one. There are different wrongful death damages available depending on which state you are in. Typically the damages can include:

  • Funeral expenses
  • Compensation for the deceased's pain and suffering prior to death
  • Loss of financial support
  • Loss of emotional support
  • Loss of companionship and intimacy for spouses

Survivor Actions

When family members file a survivor claim, they make the following argument:

  • Their loved one died due to medical error that shouldn't have happened
  • The error led to pain and suffering for the patient prior to dying
  • If the patient had lived, he or she could've sued the doctor or hospital for personal injury suffered
  • The defendant shouldn't be able to escape liability because someone died
  • The defendant should be liable to pay damages to the deceased's estate

This claim is a little badly named since it's only available after someone has died. The idea is when the person suffers a personal injury, they may have the right to bring a lawsuit. That right shouldn't die with the deceased.

Loss of Chance

As a rule of thumb in medical malpractice cases, a patient cannot sue a doctor if that doctor made an error that caused the patient harm. However, this is a somewhat difficult rule to apply. For instance, if a patient has a cancerous tumor in the brain that is left untreated, the tumor will result in the patient's death. The doctor therefore performs surgery to remove the tumor but the patient only has a minimal chance of survival. During the surgery the surgeon makes an error and the patient dies.

Medical Malpractice Cases

Cases for medical malpractice will vary for each situation. Courts typically allow wrongful death malpractice cases that are based on "loss of chance." This means that if the patient had a chance of survival, a court will assume that the medical error shortened the patient's lifespan. If your loved one has suffered personal injury or death due to medical negligence, talk to a lawyer at Clore Law who will help with your claim. Call at 843-722-8070.

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Clore Law Group welcomes your questions about any issues concerning a serious personal injury, car accident, medical malpractice, nursing home neglect, or business tort. If you have a viable claim, we’ll explain the legal process. Since consultations are always free, there’s no cost in learning your legal options.