What is Stroke Medical Negligence (or Stroke Medical Malpractice)?
Medical malpractice can occur for many different kinds of injuries or conditions, including stroke. Proving medical malpractice (also called “medical negligence”) requires two steps:
- A hospital, doctor, nurse, or other healthcare provider must have committed an unreasonable error; and
- The error caused some harm or injury to the patient.
Step One: Unreasonable Medical Errors
Health care delivery has many moving parts. Errors can and unfortunately do occur. It may be a physician who makes an incorrect or late diagnosis. It may be an unnecessary, faulty, or delayed surgery. It may be a nurse who forgets to document an important order. Or it may be a systems failure implemented by a hospital that requires employees to work too many hours under circumstances where inefficiencies or errors are likely to occur. As a result of any of these, a patient may receive poor medical care.
Whether some act was “negligent” is judged by what similar healthcare providers would do under the circumstances. For example, if the error involved care provided by a surgeon for a specific condition, then the care would be judged by what a reasonable surgeon would do under the same circumstances. Expert witnesses are consulted to review medical records and testify about what a reasonable physician would have done in that situation. After hearing all of the evidence, a jury decides whether or not the medical care was reasonable.
Step 2: A Medical Error Must Cause Harm
An error alone is not malpractice. To prove malpractice, you must also prove “causation,” which means you must prove that the error caused harm or injuries. If the medical error did not cause any harm to the patient, there is no case for medical malpractice no matter how unreasonable the care.
Any injuries, whether physical, psychological, or financial, that were caused by the unreasonable error are recoverable. The types of injuries can be numerous and vary in degree from the most minor injuries to the most catastrophic, including paralysis, loss of limbs, pain syndromes, brain injuries, and death.
What Makes Stroke Medical Malpractice Different from Other Types of Medical Malpractice?
In some ways, a medical malpractice case related to a stroke is no different that for any other type of disease or disorder. However, it is important to remember that stroke is a broad term that takes into consideration: Ischemic stroke, which includes transient ischemic attacks (TIA) and hemorrhagic stroke, which includes intracerebral hemorrhage, subarachnoid hemorrhage, arteriovenous malformation (AVM), and brain aneurysm. It is critical that you find an attorney who is skilled in the medical and legal aspects of these claims.
Children also can experience both ischemic and hemorrhagic strokes. The warning signs, risk factors, and disabilities that are caused by pediatric strokes can be much different that for adults. To succeed in your case, you will need an attorney who has expertise in stroke cases involving infants, children, and young adults.
The complications do not stop there, however. Women often experience different stroke symptoms than men do, have different risk factors for stroke than men do, and as a result often received delayed stroke treatment or get a stroke misdiagnosis.
Similarly, minorities – including African Americans, non-white Hispanics, Native Americans, and Asians and Pacific Islanders, all have different stroke risk factors and warning signs. A stroke attorney must be knowledgeable of these risk factors and differences in populations to properly understand what doctors should know and consider when treating a patient.
Finally, in order to properly handle your claim, your attorney will need to have a firm grasp of what stroke survivors often go through on a daily basis. If your lawyer doesn’t fully understand or appreciate what you go through, how can he can he get you the future care and treatment you need. We know that the stroke recovery process is different for everyone, but many common problems that stroke survivors experience include:
- Vision Problems;
- Shoulder Pain;
- Difficulty Swallowing (Dysphagia);
- Difficulty Expressing or Recalling Language (Expressive and Receptive Aphasia);
- Central Post-Post Stroke Pain Syndrome;
- Claw-toe and Hammertoe;
- Poor Balance;
- Poor Motor Skills; and
As lawyers focused on representing medical malpractice victims for stroke, it’s out job to work with rehabilitation experts to get our clients the care they need. For more information about life after stroke, click here.
What Medical Malpractice Claims are Brought for Stroke?
Failure to Prevent A Stroke
Strokes are a devastating neurological event that can leave patients with permanent disabilities and death. Because strokes are so devastating, it is important for physicians to do everything in their power to prevent strokes from happening in the first place. How can a physician prevent a stroke?
Initially, there are certain populations who are more at risk of suffering a stroke than other groups. This includes most minorities, who are predisposed to suffering a stroke because genetic and social reasons.
Also, there are certain universal risk factors for stroke, inclusing high blood pressure (hypertension), high blood cholesterol, diabetes, and obesity. Physicians must be especially proactive in their routine monitoring and treatment of these patients to prevent strokes, which commonly includes medications to treat high blood pressure, diabetes, and high cholesterol.
Delayed Stroke Diagnosis
A stroke is a medical emergency. Neurologists use the phrase, “time lost is brain lost” to emphasize how critical fast diagnosis and response are to saving brain cells.
No matter the type of stroke, once it occurs, brain cells begin to die and brain damage occurs at a rapid rate. When brain cells die during a stroke, the sensory and motor abilities controlled by that area of the brain are lost and are (almost) never fully recovered. These abilities include speech, movement, memory, and other cognitive functions.
How a stroke patient is affected depends on where the stroke occurs in the large distribution vessels in the brain and how much brain tissue is affected by the lack of oxygen delivery.
Delayed Stroke Treatment
Emergency room physicians and other doctors regularly see patients who a number of symptoms of a stroke. Common signs and symptoms of a patient having a stroke or an impending stroke include:
- Sudden numbness or weakness of the face, arm, or leg (especially on one side of the body)
- Sudden confusion, trouble speaking or understanding speech
- Sudden trouble seeing in one or both eyes
- Sudden trouble walking, dizziness, loss of balance or coordination
- Sudden severe headache with no known cause
When a patient has some or all of these symptoms and gets to the hospital quickly, the medical team must not only order tests, like a CT scan or MRI, but must also act quickly to prevent serious neurological damage if the patient is having a stroke. One such treatment that has proven effective in minimizing the damage from a stroke is a drug called a tissue plasminogen activator (TPA). TPA must be administered within the first three hours of the onset of the stroke. It can only be used if there is a blood clot in the brain, but not if there is bleeding. TPA dissolves the blood clot, opening up the artery
A stroke can run from a mild episode to one with devastating effects. It can lead to permanently reduced mental capacity and even death. Speed of treatment is the primary determinant of how severe a stroke’s effects may be.
But what many patients don’t realize is that as many as 20% of strokes are misdiagnosed. Misdiagnosis can lead to a delay in proper treatment or even the provision of treatment that further harms the patient. When such a mistake is made, a patient (or a deceased patient’s family) may be able to sue a doctor for medical malpractice.
In the sections that follow, this article discusses the proper diagnostic procedure for patients with a suspected stroke, conditions that can be confused with stroke, and how to prove that a misdiagnosis amounted to medical malpractice.
A stroke is an abrupt interruption of blood flow to part of the brain. Timing is critical in stroke diagnosis because the longer the brain cells are deprived of blood flow, the more blood cells will die.
A doctor who suspects a stroke will usually order a CT scan of the brain and possibly an MRI. Those tests should reveal whether a patient is suffering from a stroke and what type of stroke it is. A doctor may order additional tests to determine the cause of the stroke. For example, if the doctor believes that the stroke was caused by a blood clot, the doctor may order a series of blood tests to determine how to prevent future clots.
There are two basic types of stroke: ischemic (caused by a blood clot) and hemorrhagic (caused by bleeding). It is critical for a doctor not only to quickly determine whether a patient is suffering from a stroke, but also to quickly determine the type of stroke. The medication for one type can negatively affect a patient suffering from the other type.
A doctor may misdiagnose a patient with stroke-like symptoms even after imaging tests have been conducted. A misdiagnosis can come in the form of either failing to properly determine the type of stroke, or as diagnosing a stroke as some other illness.
Common Conditions that Strokes are Misdiagnosed As
Defined as a patient with a dangerously low blood glucose level, hypoglycemia can cause symptoms similar to those associated with a stroke. However, a doctor should be able to determine whether hypoglycemia is causing the symptoms fairly quickly by testing the patient’s glucose level.
Whether cancerous or not, a brain tumor can cause symptoms that mimic a stroke. The primary difference is that tumor symptoms tend to increase gradually in severity as the tumor grows whereas stroke symptoms tend to present suddenly and acutely. But this distinction can be of little use to a doctor when a patient arrives to the hospital having lost consciousness.
Seizures and post-seizure events can cause alterations in brain functioning that mimic the symptoms of a stroke. If the doctor observes the seizure or is told of a history of seizures, the doctor may be more likely to diagnose a stroke as a seizure-related impairment of brain functionality.
The primary means of distinguishing stroke from other ailments is brain imaging tests, including CT Scan and MRI. But because the images are not always conclusive, doctors can make mistakes even after the proper tests have been performed.
Mismanagement of Stroke Treatment
Sometimes even when a stroke is properly diagnosed at the hospital, the medical team commits malpractice by failing to implement an adequate plan to treat the stroke. When a stroke is involved, hospitals and doctors must take immediate action to treat the patient. The proper steps may include immediate medications, surgery treatment to remove a clot from an artery or remove blood from the brain, or transfer the patient to a certified stroke center for additional workup and treatment.
Are All Hospitals The Same When It Comes to Treating Stroke?
No, not all hospitals are equipped the same way when it comes to treating stroke. The Joint Commission offers three advanced levels of certification for stroke programs in Joint Commission-accredited hospitals:
- Acute Stroke Ready Hospital – lowest level of stroke certification
- Primary Stroke Center – intermediate level of stroke certification
- Comprehensive Stroke Center – highest level of stroke certification
Anyone of the above hospitals could call itself a “stroke center,” but the terms have very different meanings based on the type of certification they hold. There are also many hospitals that do not have an accreditation at all as a stroke center.
How Do I Prove Medical Malpractice for Stroke?
One of the first things people want to know is how will my case be handled? There are several steps involved in any medical malpractice case: (1) Investigation; (2) Record Review; (3) Litigation; and (4) Trial. Each of these steps is aimed at getting to the truth.
Getting to know the people involved is the single most important part of any investigation. While there are complex medical issues in every case, at the end of the day, it’s still about the people involved and how their lives have been altered. We spend an abundance of time getting to know our clients, their family members, and even their friends and coworkers in order to truly understand and appreciate the magnitude of the situation.
Anyone who has read their own medical records knows that they are not always accurate. Medical records are often written by rushed workers who don’t realize that a minor detail omitted from the record may prove to be highly important years down the road. Other times critical records are written by the very people who committed an error after the error was made and after the injury was known. More than one case has been won based upon the memories, photographs, and videos that contradicted inaccurate information in the medical records. This information can only be learned though human interaction.
The importance of spending time with clients and the people who know them is important not only for proving that some conduct was or was not negligent, but also to learn how some injury is life changing.
Medical records, such as written doctor and nurses’ notes, CTs, MRIs, and X-rays, as well as the results of other tests are obtained and reviewed. These records assist in identifying who was involved and when, how, and even why something happened.
In addition to medical records, we consult the most up-to-date medical literature, journals, and guidelines to identify what was known in the medical community at the time the error occurred. There is no dispute that strokes are medical emergencies that must that must be handled by doctors and hospitals with great care.
As a result medical organizations, including the American Stroke Association, have created guidelines that tell physicians what tests should ordered, how soon those tests should be ordered and reviewed, how quickly a stroke team should be involved in the treatment, and what procedures should be run. If a doctor does not follow these guidelines and recommendations, he may have committed malpractice.
Individuals hospital also have their own policies and procedures regarding how to diagnose and treat stroke. A hospital may be liable for medical malpractice if their stroke policies and protocols are insufficient to properly treat diagnose and treat stroke.
Before any lawsuit can be filed, it must be reviewed by a medical expert. In a medical malpractice lawsuit for stroke, there may be a number of experts from different specialties who are consulted. For example, a neurologist may be consulted about the cause of the stroke or any limitations or deficits a person has after the stroke. If the medical malpractice claim involves a primary care doctor’s failure to prevent a stroke by prescribing medications to reduce blood pressure or lower cholesterol or a failure to send the patient to be seen by a specialist, then a primary care physician would be asked to review the records. Other doctors, like neurosurgeons, endovascular surgeons, interventional neuroradiologists, or physical medicine and rehabilitation doctors may also be consulted.
We consult with medical experts who are renowned throughout the United States and often the world for their expertise in a particular specialty or procedure. If a trusted medical expert, after reviewing the available information, determines that there has been an unreasonable error and it caused an injury, then a lawsuit can be filed.
Litigation is the process of taking legal action. Once a lawsuit has been filed, it is in litigation. Once a case is in litigation, we are granted powers that we did not have before the lawsuit was filed. For example, once a lawsuit is filed we are able to request corporate and other documents, require defendants to answer written questions, and compel witnesses to appear and answer questions under oath in a process called a deposition.
Trial is the final stage of litigation where members of our community are selected to hear and see the physical evidence, observe and judge the honesty of witnesses, and decide whether medical malpractice did or did not occur. Depending on the case, a trial can last from a few days to several weeks.
In presenting your case to a jury, we employ the most up-to-date trial strategies and approaches, rely on the most trustworthy and renowned experts, and use cutting edge demonstrative aids and exhibits.
We prepare every one of our cases with the full expectation that it will be presented to a jury in a trial. Great attention and detail is devoted to every case we agree to handle. Because of this, we must be extremely selective in the cases we accept and are unable to accept all, or even a high percentage, of the cases that are brought to us.
Commonly Asked Questions About Medical Malpractice
Are Medical Malpractice and Medical Negligence Different?
No. The terms “medical malpractice” and “medical negligence” refer to the same thing. “Negligence” is a failure to use “reasonable care” under the circumstances. When negligence is committed by a professional, such as a doctor, it is often referred to as “malpractice.”
How Much Time Do I Have To File My Case?
The exact time you have to file a case depends on many factors, including the state where the malpractice occurred. In Ohio, the general time limitation for bringing a lawsuit (known as a statute of limitation) is one year from the date the malpractice occurred. R.C. 2305.113. There are several exceptions to this rule, however, that can extend the filing period beyond one year. Each of these exceptions depends upon the unique circumstances of the case. Once the statute of limitation has passed, it is permanent and likely impossible to file the case. If you have a potential case, it is critical that you speak to an attorney as soon as possible.
For a wrongful death lawsuit, you have two years from the date of the death to file a lawsuit. R.C. 2125.02.
What Can Be Recovered?
The law permits fair and reasonable compensation for all of the harms and losses caused by the medical negligence. These include both (i) economic and (ii) non-economic harms and losses.
Economic Harms and Losses
Economic harms and losses include past and future medical expenses. Medical expenses include the costs for services, care, and treatment (past and future) that a person would not need if the medical malpractice had never occurred, including medical bills for hospital stays, medications, physical therapy, psychological services, wheelchairs, equipment, and home modifications.
In addition to medical expenses, you are entitled to recover the lost wages (past and future) you would have received had you not suffered the injury.
Non-Economic Harms and Losses
Non-economic harms and losses are the real human suffering that injured people endure. These include no longer being able to do and enjoy the activities you once loved, the inability to find life fulfilling, the damage to interpersonal relationships, and commonly the loss of self-worth. These injuries are often the most difficult to cope with.
What if my loved one died because of malpractice?
If a loved one dies because of malpractice, the surviving family members are able to recover any compensation that their loved one would been entitled to if they were still alive. For example, if the person was injured months before he died and suffered economic or non-economic loss (e.g., medical bills, lost income, pain and suffering), the family is permitted to recover compensation for those injuries just as if the deceased person had brought the lawsuit him or herself. To say it differently, a person’s medical malpractice case survives his or her death, and a lawsuit can be filed to recover for these injuries after the person has died.
The family members are also permitted to recover for their own loss through what is known as a wrongful death lawsuit. A wrongful death lawsuit allows surviving family members to recover for the harms and losses they have suffered because their loved one is no longer around. These include the loss of relation, mental anguish, and any financial resources the deceased family member would have contributed.
How do I know if I have a case?
A bad outcome does not mean a doctor was negligent. Generally, it must be proven that no reasonable health care provider would have performed your procedure the way it was performed. It must be proven that your health care provider’s negligence was the cause of your injury or the death of a loved one.
Medical Malpractice Statistics
Each year more than 200,000 people die from preventable medical errors and as many as 20 times more are injured but do not die.
Recent studies have revealed that medical errors are actually the third leading cause of death in the United States.
According to a Harvard University Study, for every 8 medical errors, only one malpractice claim is filed.
While medical costs have increased by 113% since 1987, the total amount spent on medical malpractice insurance has increased by just 52% over that time, less than half of medical services inflation.