Pregnant Patient Bill of Rights

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 What Is Medical Malpractice?

Medical malpractice occurs when a doctor, medical professional, and/or healthcare organization falls below the standard duty of care required when managing, diagnosing, or treating a patient. This deviation from the standard duty of care required of all medical professionals results in the injury of their patient, and generally stems from an act of negligence.

Medical malpractice law allows an injured patient to bring a claim against a negligent medical professional in order to recover damages for the harms caused by their substandard conduct. However, whether a medical professional can be held liable for a patient’s injuries will largely depend on the facts of a specific case, as well as the various rules and requirements of medical malpractice laws enacted in a particular state.

Some common examples of medical malpractice include:

  • Improperly diagnosing or failing to diagnose a patient;
  • Prescribing the wrong treatment or wrong medication;
  • Operating on the wrong body part;
  • Failing to follow-up after a patient undergoes a serious procedure;
  • Prematurely discharging a patient before they have recovered sufficiently;
  • Leaving behind medical equipment during a surgery;
  • Not providing information or receiving informed consent before a patient underwent surgery; and
  • Inputting erroneous data into a patient’s medical chart, causing future harm to the patient.

In order to prove medical malpractice liability, a plaintiff must prove the following:

  • The medical professional owed the patient a duty to act reasonably and under the medical standard of care in overseeing the patient’s health;
  • The medical professional failed to meet the proper standard of care because they were negligent in managing some aspect of the patient’s health. In other words, they breached the duty of care that they had to that patient;
  • The medical professional’s negligent conduct was the actual and proximate cause of the patient’s injury; and
  • The injury resulted in the patient suffering measurable damages.

Additionally, if a lawsuit is specifically filed against an organization or its clerical staff, it must be shown that the medical staff was trained or supervised negligently.

What Is The Pregnant Patient Bill Of Rights?

As in all medical malpractice cases, liability is evaluated against a reasonable duty of care. This duty of care is generally reasonable care comparable to the expected level of care of other health practitioners in ensuring that no unnecessary harm comes to the patient.

This standard is created in a non-specific way, as it would be impossible to identify every possible event and circumstance that may result in injury and liability. As a patient, this general standard can make it difficult to determine exactly what is and what is not medical malpractice.

In order to help identify an appropriate level of care and delineate what a pregnant patient should expect, the pregnant patient’s bill of rights can provide some general guidance. Pregnant patients have the right to expect:

  • Information about the potential direct and indirect effects, risks, hazards to the pregnant parent and/or unborn child because of a drug or specific procedure administered;
  • Explanation of the benefits, risks, and alternatives to treatment;
  • Disclosure that an administered drug may affect the unborn child;
  • In cases of cesarean delivery, instruction that minimal use of non-essential pre-operative medication is beneficial;
  • Disclosure of the unknowns and uncertainties in terms of the effect of a drug or procedure on the physical, mental, and/or neurological development of a child;
  • Identification of both the brand and generic names of all drugs administered;
  • Right to select, without pressure, patient’s preferred procedure;
  • Identification of name and qualifications of all individuals administering medical procedure;
  • Disclosure of whether a drug or procedure is beneficial, or merely elective;
  • Presence of a loved one for support during the procedure;
  • Right to choose labor position, with appropriate medical consultation;
  • Right to have baby cared for at bedside unless there are complications;
  • Identification in writing of the delivering physician;
  • Disclosure of any aspect of care that may result in later difficulties;
  • Complete, accurate, and legible records maintained by the hospital until the newborn’s age of maturity, or sent to patient before records are destroyed; and
  • The right to access records with a reasonable fee, without an attorney.

Injuries that occur as a result of a failure to meet any of these rights can be grounds for medical malpractice claims.

Can I Be Forced To Do Something Against My Will If The Doctor Believes That Failure To Do So Would Endanger My Child?

A new conflict in the law involves the rights of the pregnant parent versus the rights of the child. If the pregnant parent is smoking, drinking, using drugs, or even eating poorly, the infant may be adversely affected. Along the same lines, the pregnant parent can also decide that they do not want to take certain medication, or undergo certain procedures such as blood transfusions, even if their doctor insists that the medication or procedure is necessary.

This is an open area of the law that is highly debated. Every person should be treated as an individual; if the law forces a pregnant person to do something against their will, their rights are violated and they would likely feel that their primary value during pregnancy is to be an infant incubator.

Alternatively, society has a very clear interest in protecting a new member of the community. Given that parents are not allowed to abuse their children after their child is born, it is argued that that rule should extend to pregnancy as well, although this raises the issue of what constitutes abuse.

Whether a pregnant person can refuse to do something that is considered to be in the best interest of their unborn child largely depends on the state in which they live.

What Can I Recover If My Rights As A Pregnant Patient Were Violated?

The pregnant patient can recover a monetary damages award for injuries to themselves and/or their child. Awards for such damages come in three forms:

  • Compensatory: This is intended to help the patient recover from the doctor’s malpractice, and is expected to be spent on therapy, extra procedures, and any other ways to help the patient or their child heal;
  • Punitive: This amount is intended to punish the doctor for their misconduct. However, most of the money from the award will still be given to the patient; and/or
  • Pecuniary: This amount is intended to compensate the parents for any future losses expected as a result of the medical malpractice.

Despite being able to recover monetary damage awards in medical malpractice lawsuits, a majority of states have enacted statutes that limit the number of damages that a plaintiff can receive. Such limits or restrictions are generally referred to as “damage caps.”

Damage caps vary by state, meaning that a plaintiff may recover a higher amount for the same injury in one state than a plaintiff suffering from the same harm in another state. An example of this would be how many states impose damage caps that max out at around $250,000, whereas other states allow the plaintiff to collect a much higher amount before being restricted. The purpose of these limitations is to prevent litigants from abusing the civil court system by filing frivolous claims.

A minority of states do not impose damage caps at all. However, a handful of states prohibit damage caps only in situations that involve wrongful death lawsuits.

Do I Need A Lawyer For Violations Of The Pregnant Patient Bill Of Rights?

If you have been injured by medical malpractice, you should speak to a personal injury attorney immediately. This includes if you are a pregnant patient and your rights have been violated. Your lawyer can help you understand your legal rights and options according to your state’s specific laws, and will also be able to represent you in court, as needed.

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