“Medical malpractice” is the term used for the cases of negligence that arise in connection with the diagnosis or treatment of medical conditions in human beings. In a dog bite case, the victim’s initial injuries can be misdiagnosed or not diagnosed at all. For example, a person who was bitten on the head in a case handled by Attorney Kenneth M. Phillips, the author of dogbitelaw.com, turned out to have an undiagnosed traumatic brain injury which caused her to suffer terrible consequences, including the loss of memory, inability to work, personality changes, and extreme emotional distress. The failure to recognize this brain injury was negligence.
As a variety of negligence, medical malpractice is a tort that can be redressed through our court system. Any person who is injured in the USA as a result of negligence has the right to compensation from the party who was negligent. The amount of compensation includes reimbursement for medical bills and other out of pocket costs, plus money for pain, suffering, disability and other intangible losses.
There are limitations, however, and also practical boundaries in medical malpractice cases. The proof of medical negligence requires a high degree of proof of a very specialized kind. Compensation must always equal the victim’s losses, but because of tort reform there are people who are allowed to inflict major losses on others without having to pay the full measure of damages, and doctors as well as hospitals and other entities in the medical field are among those who are so privileged. If a plumber or a twenty-something who works as a clerk in a store injures you, they must pay the full amount, but if a doctor injures you, they pay up to a certain limit but after that don’t have to pay anything.
Additionally, tort reform added a special requirement to medical malpractice cases, namely the prerequisite that you must notify the doctor that you are going to make the claim prior to actually making it. Attorneys who handle these cases for victims are aware that the effect of the advance notice is to give the doctor time to (illegally) change his records and begin talking to witnesses before the victim can do so. If the notice is not given, however, one is not allowed to proceed with the case. So when it is given, the victim frequently has to play against a loaded deck of cards, so to speak.
There is an interplay between medical malpractice and dog bite injuries that also results from tort reform. If a dog bite victim’s scarring is the result of both the wounds inflicted by the dog, and the failure to treat the wounds in a thorough manner consistent with the standard of care applicable to that particular injury, the defendant in the dog bite case can attempt to avoid paying part of the compensation on the ground that he should only be required to pay his fair share of the value of the injury. In other words, if the dog owner’s attorney can convince the jury that half the blame for the terrible scarring should fall on the doctor who treated the wounded victim, then the defense will ask the jury to conclude that the victim should only receive half of his compensation from the dog owner. Prior to tort reform, the law was that the dog owner who was legally liable for sending the victim to the hospital in the first place would have to pay all of the victim’s damages because the latter would not have been in the hospital exposed to such risk were it not for being attacked by the dog.
Generally speaking, therefore, medical malpractice cases are among the most difficult cases to win. They are procedurally complicated, the proof is expensive to gather, the win rate is lower, and the compensation is limited. If a dog bite case presents issues relating to medical malpractice, those issues have to be given serious consideration or the victim might not be adequately compensated.