Oklahoma Medical Malpractice Laws
Each state has their own set of medical malpractice laws in place, and it is important for patients to understand those laws and how they could affect their case. The following are the basics of the laws in Oklahoma.
Medical Malpractice Oklahoma
When it comes to Oklahoma medical malpractice, understanding the statutes is essential. No plaintiff should ever show up in court without proper representation due to the complexity of Oklahoma law regarding personal injury cases, such as medical malpractice. Many types of injuries qualify as medical malpractice, and when there is negligence, damages could be the result of a court case. Additionally, many documents need to be filed to get into court by specific deadlines. Each of these intricacies makes matters more difficult than what most laypeople would be able to do on their own. Anyone who has suffered a medical injury at the hands of any medical personnel should file a claim of malpractice with legal advice. That way, compensation can be determined if the damage is, in fact, someone else’s fault.
What Constitutes Malpractice in Oklahoma Medical Malpractice Cases?
In Oklahoma, the laws surrounding medical malpractice cases are incredibly complicated. The basic definition of medical malpractice is an injury that medical providers caused due to negligence, misdiagnosis, or improper medical treatment. The damage sustained could be anything from a minor inconvenience to the death of the injured patient. Most malpractice cases are somewhere in the middle of both. The point of filing a claim of medical malpractice is two-fold. First, it brings awareness to the injury and the person or place responsible for the impairment, and second, to help compensate for the changes because of that injury.
A claim of medical malpractice in Oklahoma should present evidence that should point to certain things while in front of a judge or jury. If the evidence points to someone’s mistake, then the judge and jury can determine what type of compensation makes the most sense for the injury that occurred. Points that need to be established include:
- The healthcare professional was negligent in how he or she cared for the plaintiff, whether intentionally or not. This can even include the fact that the staff was not skilled in what the plaintiff needed, but a specialist was not called in when it was appropriate to do so.
- What the standard of care should have been for the patient, meaning what level of care the patient should have been able to expect reasonably. This is the type of care that any other staff member would have offered facing the same scenario that the plaintiff went through.
- The medical professional did not act according to the established level of care, and this was directly responsible for the injury the plaintiff sustained.
What the court needs to decide is how other medical personnel would have acted if he or she faced the same set of symptoms, test results, and situation. Then the court determines whether the actions of the healthcare met the level of care needed, or was it below the level of care required. If the actions were below that established level and an injury occurred, then the court can find the person, and sometimes even the establishment, guilty of medical malpractice. From there, determining the amount and type of compensation is what the court does next.
What Are Some Examples of Medical Malpractice in Oklahoma?
Many different injuries could lead to a medical malpractice claim in the state of Oklahoma. Here are some examples of damages that could result in a claim of malpractice that should go to court.
- Disfigurement that is significant and permanent
- Ignoring an obvious symptom that would have helped with diagnosis
- Not providing proper follow-up care to a patient in need
- Ignoring any visible sign that would point to an infection following surgery
- Not getting a proper medical history, or not looking over a given history to see where problems may lie that could help with an appropriate diagnosis
- Faulty medical equipment that is used to provide back results that should have been questioned, but never was
- Improper reading of blood or image test results
- Not noticing significant fluctuations in the vital signs of a patient that should have been caught
- Ordering medications that counteracted with current medications or were marked on the patient’s file as him or her being allergic to
- Sending the patient home far too soon to have been safe
- Not getting standard diagnostic tests ordered, which could have helped speed up the diagnosis and treatment of the patient
- Not taking the time to explain the side effects of a procedure or medication, and those side effects harming the patient
- Medication errors, such as prescribing the wrong type of medicine for the diagnosed ailment, or ordering a dose that was far too high or far too low to be effective
- Giving a diagnosis that does not match the symptoms the patient was presenting
- Forgetting to retrieve all surgical equipment after a surgical procedure
- Suggesting a different treatment than would be reasonable for the diagnosis but has no real chance of treating the ailment
- Not watching the patient under anesthesia or administering the wrong type of anesthesia and the patient suffering or dying as a result
- Ignoring patient questions or not listening enough to provide a proper answer, which could directly lead to an injury or the death of the patient
- Errors during the operation, like nicking a vein or artery that was not in the vicinity of where the surgery was taking place or operating on the wrong part of the body
- Delaying diagnosis that led to a decline in patient prognosis
- Issues during a pregnancy that were missed or delivery issues that left the mother or child injured or deceased
- Not checking alarms that signal some problems with the patient, or turning the alarms off so that no one could hear them, then the patient going into distress.
- Not intubating a patient obviously in need of one
- Performing a surgery that was never even required in the first place
This is not an exhaustive list. If someone underwent another type of injury due to medical negligence, the best route to take is seeking the advice of an experienced medical malpractice attorney to know what to do.
What Is the Process of Filing a Medical Malpractice Lawsuit?
The process of filing an Oklahoma medical malpractice suit is involved but is relatively straightforward. In Oklahoma, the process begins a little differently than in most other states. Should a plaintiff or the plaintiff’s attorney believe expert witnesses are required in the case, the documents to start the claim need to include an Affidavit of Merit. This allows a witness to put forth his or her belief that under current circumstances with what is known about the case, there seems to be enough evidence to support the plaintiff’s theory that malpractice occurred. The evidence gathered that helps the malpractice claim should also be included with the initial filing.
From there, the courts set a date to hear the case and determine who is at fault for the plaintiff’s injuries. There will be all sorts of evidence submitted, including things like:
- Medical records from before the injury
- Additional documents from after the injury to compare
- Any eyewitness accounts of the injury
- Any photograph or video evidence of during or immediately following the injury
- Test results that came from the time of the injury, or that have happened since the injury occurred
- Any statements from medical professionals taken since the accident about the cause, treatment, or severity of the injury
- If the death occurred, a death certificate along with full medical examiners report of the death should also be included in the documentation
Who Can Testify As an Expert Witness?
Only the courts get to decide who should be an expert witness in the case and who cannot testify. The court wants to see the level of education a proposed witness has, as well as if the doctor is currently practicing the type of medicine that would help with the case. In some cases, a retired staff can also help testify in a malpractice case if the person had enough experience under this capacity. If someone gets to come in and testify as an expert witness, the testimony is limited to things relating to this case, including:
- What level of care; the plaintiff should have expected after arriving at the site where the injury occurred.
- How the accused acted in a way that was not up to the level of care the plaintiff should have been able to expect reasonably.
- If the injury in question is related directly to the medical staff not acting in a way that stayed up to the level of care expected.
- In some cases, if an expert witness is called due to a specific procedure, the witness may be able to speak about how that procedure could have been poorly performed by the accused, or how that procedure could have helped the plaintiff.
How Long Does Someone Have to File a Malpractice Lawsuit in Oklahoma?
In Oklahoma, the statute of limitations is both strict and flexible. For anyone who has an apparent injury, the time limit is two years from the date of the injury. However, if someone would be unable to discover the harm he or she sustained came from a medical mistake, the time begins when the injury’s roots became obvious. The two-year rule is quite strict, but if the person did not realize the damage he or she suffered came from a specific act or procedure, the time is a bit more flexible.
There are also exclusions when it comes to how long someone has to file. One example of an exemption to the two-year statute of limitations is for kids. Minors under the age of 12 have seven years from the date that the original injury occurred to file a claim. For any minor 12-17 years old, the statute allows for a claim to be filed up through the day the child turns 19. Any person, 18 or older, goes with the original time limits.
Another exemption is when a malpractice suit falls against a government or state agency. In these cases, the time limit is just one year. This is another area where having legal counsel would be a great benefit to anyone wanting to file a claim.
Damages That Can Stem From a Medical Malpractice Suit
When a suit is filed for malpractice, the ultimate goal for both the attorney and the plaintiff is often monetary compensation to offset the injury damages that occurred. There are many different types of compensatory damages a plaintiff can get for this type of case. The reward can be either monetary, or punitive damages, or what is referred to as non-economic damages. The financial costs can include:
- Paying all current and past medical bills that directly relate to the injury in question
- Other medical expenses, such as those to cover additional procedures that become necessary to try and get back to some normalcy
- Medical equipment that is now required as a result of the injury to have as much functionality as possible
- Prescription medications that are now required as a result of the injury
- Physical therapy costs if that is necessary for trying and relearning specific skills as a result of the injury
- Income that the plaintiff was not able to earn while trying to recover from the injury
- Money to cover the lower-earning capacity an injured person may have, either temporarily or permanently
- Monetary compensation to cover any damage to property that occurred as a result of the injury
Non-economic damages are slightly different. These have a cap of $350,000 in nearly all cases. The types of compensation that can come under this category include:
- Any distress that the injured endured as a result of the injury
- Pain and suffering from the injury itself or the realization of the harm if it was not immediately recognized
- Failure of things like companionship, consortium, and the loss of enjoyment of life are all something the plaintiff can include in this category of damages
In the case of wrongful death, or if the health care provider is found guilty of being more than inadvertently neglectful, the cap on these damages is waived. However, to prove that, the plaintiff must be able to present several things, including:
- Gross negligence meaning the physician was intentionally not putting enough care behind his or her actions, and that led to an injury or death
- That the physician was reckless with the rights or the care of the people around him or her, including the patient who became injured
- The physician went out of his or her way to intentionally defraud the plaintiff or hide that an injury occurred
- That the physician acted with the intent to harm the patient with the choices that he or she made
In these cases, if the physician, or other professional, is found guilty, the judge or jury gets to decide what monetary amounts would be sufficient. This money then goes to the estate of the loved one who passed away, or the plaintiff who filed the case if there was no death involved.
What Is the Collateral Source Rule of Oklahoma?
In most instances of personal injury, the court will hear about what type of financial assets the plaintiff has, or the variety of financial resources the plaintiff may have access to. This can include payments made by his or her insurance, bills that may have been covered by the plaintiff’s employer, disability payments, or even a payment made from worker’s compensation. However, under the collateral source rule, the judge and jury do not need to hear about these types of benefits the plaintiff may have access to. This allows both the judge and the jury to decide freely what the injury is worth and what kind of punishment the accused should get for his or her negligent actions.
Who Can Be Included in Claims of Medical Malpractice?
There is a wide range of people, places, and staff who can find themselves in the middle of a malpractice case under Oklahoma law. Here is a list of some of the most common that tend to show up on these court documents:
- Doctors, nurses, physician’s assistants, and medical office staff
- Dentists, hygienists, and oral surgeons
- Dieticians, nutritionists, and personal trainers
- Psychologists, psychiatrists, and therapists
- Optometrists, podiatrists, midwives, and anesthesiologists
- Pharmacists who filled the prescriptions
- Nursing homes that help with medical care for the elderly
- Blood and tissue banks
- Scientists, researchers, and medical techs
- Office buildings, testing facilities, medical clinics, hospitals, and even hospice facilities
In cases where a medical device was the cause of the injury, the manufacturer and the company that owns the equipment can also be added into the claim. This allows the plaintiff to go after anyone who may have caused the pain and suffering he or she must now endure, and get ideas on what to do to remedy the situation.
Are the Accused Parties Able to Be Prosecuted Separately?
As of 2009, Oklahoma no longer allows parties to be sued separately. This means that each malpractice claim had to include all of the people and places that could be considered part of the injury at once, and each party that was found guilty was only responsible for a specific amount of the total compensation. In addition, if the plaintiff is partially at fault, it reduces the total payment by the percentage that he or she is found to be at fault.
For example, if two doctors and one hospital are found guilty of malpractice for an injury, each doctor and the hospital would only be responsible for one-third of the compensation awarded to the plaintiff totaling 100 percent after all three paid. If the plaintiff were 25 percent at fault, then each doctor would pay one-quarter of the compensation, and the hospital would pay the remaining quarter of the judgment. This would total 75 percent of the settlement since the plaintiff would not get the final 25 percent due to it being partly his or her fault.
It used to be that the two doctors and the hospital of the example could be sued separately, and the judge or jury would decide what portion of compensation each accused would be responsible for. This change of the law can make putting a claim of malpractice into the legal system a bit more complicated.
What Can a Medical Malpractice Lawyer Bring to a Malpractice Claim?
Whether this claim is to be filed in Oklahoma City or Lotsee, the best approach to a malpractice claim is by having a lawyer involved. They can bring a lot of knowledge, skill, and power to the bargaining table. The plaintiff can choose if he or she would prefer an individual lawyer to help with the case, or if the preference would lean towards an entire law firm to take on the accused. What matters most is the level of experience an attorney has.
Things to make sure to look for when picking a medical malpractice lawyer include:
- An attorney with extensive experience in the malpractice field
- A lawyer who should have covered cases where a plaintiff had a misdiagnosis, where there were medical errors, medication errors, and even wrongful death
- A vast network of people the attorney feels comfortable turning to for help with evidence gathering, claim investigations, and medical translation
- The ability to travel around to wherever the plaintiff may need, such as Oklahoma City, Edmond, Norman, and Tulsa, if necessary
Attorneys who specialize in medical malpractice can offer a lot. They understand what the court looks for in a personal injury case, so they are able to give an educated guess if there is a claim to be filed or not. In addition, they also should have extraordinary skills when it comes to talking with the insurance company of the accused. No insurance companies ever want to pay out, and they will fight tooth and nail not to do so when speaking with the plaintiff. However, an attorney knows the right words to use and the right tone to get what they want on a much more regular basis.
Experienced attorneys also understand the deadlines imposed by the state, so they can help when it comes to making sure everything is filed correctly and on time. They have help, such as assistants and paralegals, so if they fall behind on anything, they can delegate it so it can still get done. Someone trying to go into court on his or her own would often struggle to keep up with all of the nuances of court while also trying to heal from an injury.
On top of all of the benefits that one could get from having an attorney for court, one of the best is that they provide a sense of relief. An attorney can do what needs to be done and only involves the plaintiff when it becomes necessary. That way, the injured person can focus on healing and trying to get back to a healthy life, while still keeping up with what is going on in the case from afar.
How to Find the Right Medical Malpractice Attorney
Finding the perfect attorney for the case involves some looking and communicating with potential candidates. If the attorney-client relationship is not strong from the beginning, it likely leads to more stress than it relieves as the case wears on. Here are a few questions that can make finding the perfect attorney a bit easier.
- Does the attorney have the time available to take on a new case?
- How much experience does this particular attorney have with the type of injury suffered by the plaintiff?
- Can the attorney explain what happened to the plaintiff, back to the plaintiff? It shows the level of understanding of the problems.
- What problems does the attorney see with the preliminary evidence that could cause issues in the case?
- Does the attorney feel as though a settlement is possible with the preliminary evidence?
- How many cases of this style has the attorney prosecuted, and out of those, how many has he or she won?
- Shall the attorney do the investigative work and evidence gathering, or would those tasks be delegated out?
- How often would the attorney reach out and communicate with the plaintiff about the case?
- What type of fees are associated with this attorney taking on the case? If the fees are contingent on winning, are there any costs for the plaintiff along the way?
- Will an expert need to come and testify on this case?
By asking these questions, the plaintiff can get a good feel for what the attorney thinks about the evidence before him or her, and if the attorney even feels as though there is enough evidence for a claim. Since these cases do tend to take a while, it is best to find an attorney that the plaintiff feels as though he or she can trust. That way, the plaintiff knows that as time goes on, the attorney keeps them apprised as to what is going on with the case.
What Can Happen If a Person Tries to Go to Court Alone
There are many downsides to trying to go into court alone. Legal advice is always recommended when going to court, but especially to a malpractice court. These cases quickly get complicated, especially when highly paid lawyers on the accused’s side get involved. It is their job to confuse the plaintiff and make them walk away from the case without a settlement. By virtue of being paid by a doctor, they are often very good at their jobs. Instead of allowing the accused to get away with his or her medical mistake, take the best option, and make sure to have an attorney every step of the way.
Issues that can stem from the stress of trying to manage a case without a lawyer can include:
- A weakened immune system that can make healing more difficult
- Constant anxiety and feeling overwhelmed
- Difficulty relaxing, which also makes healing more difficult
- Tense muscles, which can increase the amount of pain someone feels
- More frequent infection
- Heart ailments, which can lead to heart palpitations, heart attacks, strokes, and even death
Instead of allowing stress to take over, the injured person should consider getting someone to help with the case. Many attorneys work on a contingency basis, meaning that the plaintiff does not have to worry about an extra bill. The only time any money is exchanged in many of these cases is if the plaintiff wins his or her trial and gets a financial settlement. Stress can make the entire process harder, and it should be avoided whenever possible. Hiring an attorney can significantly help.
Oklahoma medical malpractice cases are difficult to try, but they are often worth the time and effort to the plaintiff in the end. If a doctor or other medical staff member did something that led to an injury, he or she needs to face the consequences of his or her actions. It may not be an immediate answer as to what went wrong, but in the end, many answers will be there, as well as solutions to try to get back to a regular type of life. Nothing is ever the same after a medical error that left someone injured or dead. However, by going after the negligent party, it can bring a sense of closure that can help the plaintiff and his or her family begin to heal.