Who can be sued for cerebral palsy caused by birth injury?

If your child is injured before, during, or following delivery, you may be able to sue the hospital for negligence or medical malpractice. Though hospitals are often on the hook for incompetent care provided by employees like paramedics, nurses, and medical technicians, they often are not responsible for a doctor’s medical malpractice. There are many reasons why a hospital may or may not be responsible for medical malpractice committed by its employees and staff doctors.

If someone is an employee of a hospital, the hospital is responsible (liable) if that employee hurts a patient by acting incompetently. In other words, if the employee is negligent (is not reasonably cautious when treating or dealing with a patient), the hospital is on the hook for any resulting injuries to the patient. Remember that not every mistake or unfortunate event that happens in a hospital rises to the level of negligence. Typically, nurses, medical technicians, and paramedics are hospital employees. As long as the employee was doing something job related when he or she injured the patient, the patient can sue the hospital. For example, if a paramedic employed by the hospital injects the wrong solution into the patient on the way to the hospital, particularly if the medical situation is not life-threatening, then the hospital is liable for the paramedic’s mistake. However, if a doctor makes a mistake and injures a patient while working in the hospital, the hospital will not be liable for the doctor’s mistake unless the doctor is an employee, which is actually unlikely. Also, if a hospital employee commits malpractice while under a doctor’s supervision, the patient can sue the doctor, but the hospital may be off the hook. Whether an employee is under the supervision of the doctor when the misdeed occurs depends on whether the doctor was present, and whether the doctor had control to prevent the employee’s negligence. For example, a surgeon may be liable if an attending nurse miscounts the surgical sponges, leading the surgeon to leave a sponge in the patient.

Whether a doctor is a hospital employee depends on the nature of his or her relationship with the hospital. Though some doctors are hospital employees, most doctors are not. Non-employee doctors are independent contractors, which means that the hospital cannot be held responsible for the doctor’s medical malpractice, even if the malpractice happened in the hospital. A doctor is more likely to be an employee (rather than an independent contractor) if the hospital controls the doctor’s working hours and vacation time, or if the hospital sets the fees the doctor can charge.

Even if a hospital would generally not be liable for an independent contractor doctor’s malpractice, a hospital may be held responsible in certain situations. For example, if the hospital does not make it clear to a patient that the doctor is not an employee, the patient can sue the hospital for the doctor’s malpractice. Hospitals attempt to avoid this problem by informing patients in the admission forms that the doctor is not a hospital employee. The situation is different for patients injured in an emergency room. Usually, the hospital does not have an opportunity to inform emergency room patients that a doctor is not an employee. This means that ER patients can often sue the hospital for a doctor’s medical malpractice. There are also a few states that say a hospital can be sued for emergency room malpractice regardless of what the patient believed or was told.

Another way that a court may hold a hospital responsible is if it gives staff privileges to an incompetent or dangerous doctor, even if the doctor is an independent contractor. The hospital is also responsible if it should have known that a previously safe doctor had become incompetent or dangerous. For example, if a doctor becomes severely addicted to drugs and the hospital management knew about it, or it was so obvious they should have known about it, a patient injured by that doctor can sue the hospital.

That said, recent legislation has substantially changed the medical malpractice arena regarding physician liability. Specifically, certain parts of the new law provide that certain colleges and universities that own or operate a medical school or any of its employees or agents providing patient services pursuant to a contract with a teaching hospital are agents of the teaching hospital and are immune from certain liability for torts. Even so, other parties that contributed to the injury, including manufacturers, technicians, and assistants may be a link to hospital or physician liability.

If your child was injured during or before birth as the result of a surgery, medication, or other medical treatment, and believe the injury may have been the product of medical malpractice, you need an attorney that has experience in dealing with birth injury claims by your side to make sure you receive all the benefits and compensation you are entitled to. You need experienced and aggressive attorneys like Dan Newlin Injury Attorneys to help you get everything to which you may be entitled. Call us at 800-257-1822 for a free consultation and to have all your questions answered regarding your injury.