Your Portland Medical Malpractice Case: The Basics
Created by FindLaw's team of legal writers and editors | Last reviewed July 19, 2017
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The last thing you remember is biking south on Grand Ave. Now you're lying in a Providence Portland Medical Center cot with a splitting headache and your teary eyed family is just happy that you're alive. Fast forward a few weeks to a doctor shamefully admitting they left a surgical sponge inside your surgically repaired forearm and it has become infected requiring more surgery. You'll be out of work for weeks, your arm may be permanently damages, and you can't afford another hospital bill. Sometimes your only option is to file a lawsuit, and FindLaw is here to inform you on the ins and outs of Portland medical malpractice law.
Statute of Limitations
An action for injury caused by medical malpractice must be commenced within two years from the date the injury is discovered or in the exercise of reasonable care should have been discovered (subsection 4 in the link). Furthermore, all actions must be commenced within five years of the date of the injury causing incident, absent a showing of fraud of deceit.
Wrongful death cases, on the other hand, must be commenced within three years after the injury causing the death is discovered (or reasonably should have been discovered) by the decedent, his representative, or a beneficiary, but in no case more than three years after the date of death.
Medical malpractice lawsuits typically rely on proving that a healthcare professional failed to act according to the rigorous standard of care demanded by his or her profession. Malpractice can include a doctor's failure to diagnose the patient correctly, an unreasonable delay in treatment, or improperly treating the patient.
To succeed in a medical negligence lawsuit you must first demonstrate precisely how a reasonable competent doctor should have acted under the circumstances. This hypothetical doctor's conduct is called the standard of care. Generally, doctors must recommend and perform treatments as a reasonably competent and skilled health care professional, with a similar background and in the same medical community, would have provided under the circumstances that led to the alleged malpractice. Second, you must point out exactly how the doctor performing your treatment failed to live up to this expected standard of care.
You are no doctor, and neither is the judge or jury, so convincing them what level of care is expected under your specific circumstances can be tricky. In these cases plaintiffs usually rely on an expert witness in the applicable medical field, who can analyze your case for negligent action, provide testimony as to the applicable standard of care and detail how the doctor failed to meet this expected standard of conduct.
Individuals generally must receive consent before laying hands on someone, or else risk a lawsuit for battery. Similarly, surgeons can't just slice people up without asking their permission first (except in emergency situations). However, medical consent is more complicated than simply asking permission because of the specialized knowledge required to make informed medical decisions. Thus, the healthcare profession must share his or her knowledge of the risks and alternatives to the procedure before a patient's consent will be deemed valid.
For a patient to give informed consent, three elements must be met:
- the doctor must disclose all the risks, benefits and alternatives of the treatment;
- the patient must comprehend the disclosure, and;
- the patient must execute a voluntary (non-coerced) waiver consenting to the treatment.
Who to Sue
The negligent healthcare professional can obviously be named as defendant. However, you can also sue the hospital that employed the health-care provider under the common law doctrine of respondeat superior, which provides that an employer is responsible for the tortious action of an employee acting within the scope of his or her employment.
The hospital can also be sued independently under for corporate negligence, for example if the hospital fails to maintain sanitary conditions, fails to screen employees for proper credentials, or improperly discharges a patient.
Filing a Case
Filing a lawsuit is as easy as drafting a complaint, which is a brief explanation of the basis of your lawsuit. Try using this medical negligence sample complaint if you get stuck. Alternatively, you may also wish to consult with an experienced personal injury attorney, who typically work on a contingency fee basis.
The 4th Judicial District, also called the Multnomah County Circuit Court, has general jurisdiction over all civil claims. The primary courthouse is located at 1021 SW Fourth Avenue. If your lawsuit is worth $10,000 or less you may instead opt for the relaxed procedure of small claims court.
Money can't make up for pain and inconvenience, but courts no alternative but to award monetary damages to successful plaintiffs. So-called "economic damages" compensate plaintiffs for the unfair financial burdens placed upon them resulting from the malpractice, such as medical bills or lost income from inability to work. There's no upper limit to the amount of economic damages you may recover.
Alternatively, "non-economic damages" compensate plaintiffs for the pain and suffering he or she was forced to endure as a result of the malpractice. Juries consider loss of enjoyment of life, fear and anxiety, sleeplessness, scarring and disfigurement when calculating an award.
Oregon has a unique history that leads to an odd damages cap. The legislature established a $500,000 cap on damages for non-economic damages, but the Oregon Supreme Court ruled the cap unconstitutional because it violated the right to a jury trial. However, oddly enough this decision didn't overrule an earlier case upholding the constitutionality of the non-economic damages cap in wrongful death cases. Therefore, today the cap only applies to non-economic damages in wrongful death cases. Keep in mind that Oregon has no cap on economic damages for any cases, and no cap on non-economic damages for cases where the patient survived.
Feed your brain while your body heals on FindLaw's section on medical malpractice law, or learn how to initiate your Portland personal injury case.
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