Frequently, injuries occur in a hospital as a result of negligence against a nurse or other hospital employee and the question becomes whether the claim is a medical claim (otherwise known as a medical negligence claim) or a standard common law negligence claim. The distinction may seem to be insignificant, but the consequences of the distinction can be significant. For example, a patient that sustains a fall in a hospital may or may not have a medical claim against the hospital or an ordinary negligence claim. If it is considered to be a medical claim, then the patient must file a lawsuit within one year of the injury and, under certain circumstances, the injured party may have to hire an expert to sign an affidavit of merit even before filing the lawsuit in order to proceed with the claim. If on the other hand it is determined that the injury that occurred as a result of the negligence of a nurse, orderly or other hospital employee does not meet the definition of a medical claim, then the statute of limitations for such a claim is two years rather than one; there is no requirement that an affidavit of merit be submitted by a qualified expert in order to file the claim; and there is no requirement of expert testimony to establish that the injury was caused due to negligence.
In a recent case in Summit County, an injury occurred when an incident occurred at a hospital in Wadsworth, Ohio. At the time of discharge, the patient was being escorted in a wheelchair. The patient had been an inpatient and was being discharged when she attempted to stand-up from the wheelchair and fell while being escorted by a nurse and suffered a fracture of her knee.
A lawsuit was filed beyond the one-year statute for a medical claim without an affidavit of merit by an expert. The lawsuit was dismissed by the trial court. The court determined on appeal that the incident in question was a common negligence action and not a medical claim. The court determined that the term “medical claim” includes claims that arise out of medical diagnosis, care or treatment of a person. While care has a broad meaning, it was determined that the patient in this case was either already discharged or in the final stage of discharge from the hospital and there were no diagnostic tests or treatment activity to be completed and, accordingly, the injury that occurred was not in the course of prevention or alleviation of a physical or mental defect or illness. The court therefore determined that the action was a negligence claim rather than a medical malpractice claim; thus, governed by the two-year statute of limitations and also not requiring expert testimony.
However, it should be noted that there are situations where a claim may be determined to be a medical claim and governed by the one-year statute, and not require expert testimony. Such cases are governed by the “common knowledge exception” to the usual rule that requires expert testimony. If the injury that occurs within the context of medical treatment is such that the jury can make a determination as to whether the injury was caused by negligence without the need for an expert and is within their general or common knowledge, expert testimony may not be required. However, you should be aware that taking the position that an injury that occurs in a hospital as a result of negligence does not require expert testimony, can be extremely dangerous and may result in the dismissal of the case depending upon the facts and circumstances and the interpretation by the court.
While the distinction between a medical negligence claim and a common or ordinary negligence claim against a hospital may seem on its face to be simple, there are a number of potential pitfalls that can result in an otherwise appropriate claim being dismissed due to statute of limitations issues or due to the failure to secure the necessary expert testimony. As in all claims, it is important to evaluate the facts and circumstances of the injury to determine whether or not there was negligence and whether the negligence falls within the definition of a medical claim or not. Always consult with an experienced medical malpractice attorney in a timely manner so as to protect your rights and to know what steps need to be taken. The trial attorneys at Mishkind Kulwicki Law have over 50 years of experience in handling all types of injury claims. We get your questions answered and will seek justice for you or your family if someone else was negligent and should be held responsible.
