It is shockingly common to suffer a brain injury due to a catastrophic accident or a traumatic blow. Yet, many people fail to realize that medical negligence can also lead to these debilitating brain injuries, and in many cases, horrific damages.
If you or a loved one has suffered a brain injury at the hands of a medical professional, you need experienced legal help on your side. This blog post will delve into brain injuries resulting from medical negligence, and go into detail about what actions you need to take to navigate this complex and difficult situation; in addition, we’ll discuss how a skilled brain injury attorney can provide you with invaluable assistance.
Medical Negligence and Brain Damage
To bring a successful malpractice claim, a patient needs to show that their health care provider failed to provide them with treatments at an appropriate level. Typically, malpractice occurs when a health care professional fails to foresee the consequences of their actions or does not act by a recognized standard of care shown by similarly trained doctors or health care providers.
Consequently, to prove that your brain damage resulted from medical negligence, you need to establish the following elements:
- The health care professional had a patient/ doctor relationship and duty of care with the patient
- The health care professional breached this duty of care through their reckless actions or their negligence
- As a result of the breach, the victim was directly injured
- The victim’s injury resulted in actual damages
A brain injury can occur at any point in the medical treatment process, including the diagnosis, treatment, surgery, or even during the aftercare.
Types of Medical Errors Leading to Brain Damage
Sadly, brain injuries can result from numerous medical situations and errors, including:
- Procedure complications
- Excessive Bleeding that can lead to Oxygen Deprivation
- Medication Errors
- Mistakes resulting from surgery
- Trachea compression
- Failure to treat hypotension
- Failing to timely diagnose a patient’s heart attack or stroke
- Not properly incubating the patient during surgery
- Failing to diagnose or treat a brain bleed
- Improperly using forceps or a vacuum extractor during a child’s birth
Effects of a Brain Injury
Each patient is unique, and each situation is different. It is very hard to determine what effects you may feel as a result of your brain injury.
However, typically, individuals that suffer a brain injury usually experience the following symptoms:
- Emotional Issues
- Behavioral Issues
- Memory Loss
- Impairment of particular cognitive abilities
- Impairment of physical capabilities
- Muscle spasms
- Significant Headaches
- Mood swings
- Bad judgment
- Diminished capacity with concentration
In addition, a brain injury has many external effects that can often impact the patient’s livelihood, daily routine, relationships, and even their role in society. These effects may be short-term or long-term, but for many, full recovery following a brain injury is not a possibility. In truth, victims of these brain injuries may need ongoing or lifelong treatments, care, and supervision.
Who Can You Sue for a Brain Injury Due to Medical Negligence?
Any health care professional that provides you medical care can come under scrutiny for medical negligence.
These professionals can include:
- Medical Assistants
- Lab Technicians
- Hospital Personnel
- Urgent Care Clinics
Is the Hospital Liable for a Brain Injury Due to Medical Negligence?
Going after a hospital for medical negligence is rather complicated. As many times, numerous independent contractors work in hospitals. This is an issue because hospitals are liable for the actions of their employees.
If you suffered harm at the hands of a doctor that was not an employee of the hospital but rather an independent contractor, you may not be able to sue the hospital for the doctor’s medical negligence. However, some situations can allow you to go after the hospital for the harm you endured.
Specifically, if the hospital fails to:
- Uphold their duty to provide their patients with reasonable care in terms of the overall safety and maintenance of their equipment and facility
- Verify and oversee the general qualifications of their physicians and nurses who committed the negligent act
- Make sure they carry out their duty to formulate, enforce, and adopt specific policies that can ensure every patient’s quality of care
- Ensure the healthcare professionals working within the hospital provide quality patient care
Working with an experienced brain injury attorney can help you figure out who was liable for your brain injury due to medical negligence and go after all the responsible parties.
How to Sue a Hospital for a Brain Injury Due to Medical Negligence
If you are looking to build a medical negligence case for your brain injury against a hospital, you need to make sure you take the following steps:
- Sworn affidavit: In states like Pennsylvania, you need to provide an attorney-signed affidavit within 60 days of filing your medical malpractice lawsuit. This affidavit needs to indicate that a medical expert provided written testimony that a hospital is more than likely at fault for the medical malpractice.
- Hospital negligence claim: You will then need to file your hospital negligence claim, which will detail specific information including the patient’s name, hospital’s name, description of the alleged malpractice, the injuries that resulted, the damages associated with the injury, and other details about the malpractice. If you fail to file this complaint properly, it can lead to lengthy and costly delays.
- Statute of limitations: If you are looking to file a medical malpractice claim in Pennsylvania, for example, you have two years after the injury’s discovery, the discovery of the medical malpractice, or the discovery of the overall connection between the malpractice and the patient’s injury. Failing to bring your case within the allotted time prevents you from pursuing damages for your injuries.
Damages You Can Pursue Following a Brain Injury Due to Medical Negligence
If you have suffered a brain injury due to medical negligence, you may be able to recover certain damages from the liable party. These damages include both economic and non-economic damages.
Economic damages are verifiable losses resulting from the injury and include:
- Past, present, and future medical expenses (initial treatment costs, ongoing treatment costs, surgeries, doctors visits, and hospital stay)
- Past, present, and future lost wages
- Lost earning capacity
- At-home nursing care
- Home replacement services such as child care services or cleaning services
- Rehabilitative therapy such as physical therapy or occupational therapy
- Other out-of-pocket expenses
Non-economic damages are subjective losses stemming from the injury, and not easily quantified. They can include:
- Pain and suffering
- Emotional anguish
- Loss of companionship
- Loss of consortium
- Loss of reputation
- Loss of enjoyment of life and activities
In some instances, the court may award the patient punitive damages. However, unlike economic and non-economic damages, which are meant to compensate the victim, punitive damages are intended to punish the medical professional for their egregious actions and serve as a deterrent to other medical professionals. In some states (such as Pennsylvania), punitive damages are capped.
Steps to Take Following a Brain Injury Due to Medical Negligence
Dealing with any medical negligence is stressful. Dealing with a brain injury due to a medical professional’s negligence can not only be traumatizing and overwhelming but leave you feeling extremely confused about what you need to do next. However, you need to realize that the actions you take following a medical malpractice incident can not only protect your overall well-being but your legal rights as well.
That is why if you ever suffer a brain injury due to medical negligence, it may be wise to:
- Seek new medical care: Your health should be your number one priority. That is why you must get checked out by a new medical professional as quickly as possible. These doctors can not only let you know what treatments and care you may need following your brain injury due to medical negligence. But they can also provide your lawyer with a better understanding of the harm you endured and what types of damages you suffered.
- Keep a journal: Following your brain injury, you need to keep a journal of everything that happened, the harm you endured, the medical procedures you received, and how you are doing following this malpractice incident. Over time, memories of the malpractice can fade. However, this journal can not only help refresh details about what happened, but it can also provide your lawyer with significant evidence in terms of your pain and suffering.
- Not talk about the incident: Make sure you avoid talking about your injury to others or online. Yes, finding support in forums or through your tweets may feel like a great solution to the trauma you endured. But all you are doing is leaving evidence for the defense attorneys to find, which can end up affecting your claim.
How Can a Brain Injury Attorney Help Your Brain Injury Medical Negligence Case?
As you can see, proving a brain injury due to medical negligence is not only extremely difficult, but it also requires extensive and detailed evidence, a solid understanding of the laws, and well-founded arguments that can help prove liability and damages. Luckily, when you work with an experienced brain injury attorney, you do not have to tackle these complicated legal proceedings on your own.
A lawyer can:
- Answer questions: Go over your case in detail, answer any questions and concerns you may have, and figure out your legal options.
- Investigate the malpractice: These lawyers can investigate your medical malpractice thoroughly. Gathering critical evidence and reports and interviewing relevant witnesses that can help show what happened and who was at fault.
- Bring in the experts: Medical malpractice lawsuits require experts to help substantiate your claims. Experienced brain injury attorneys not only know what types of experts you need to prove your claims but also have a list of experts they can promptly contact to get your case the help it needs.
- Handle negotiations and discussions: Talking to defense attorneys or the insurance company is stressful. However, when you work with a skilled brain injury attorney, you will not have to take on these discussions yourself. These lawyers can take over the negotiation and discussion process, ensuring you do not say anything that can hinder your claim while they fight for the compensation you need.
- Take your case to trial, if necessary: If the other side is unwilling to negotiate, these lawyers can take your case to trial and fight for maximum compensation.