Contract / Warranty Breaches

Doctors rarely promise certain results from treatments or procedures.  In some cases they do, and the failure to produce the promised results may be cause action for breach of contract or breach of warranty.  If a patient is not satisfied with the results of a procedure and the health care professional had guaranteed or warranted a certain result, the patient may attempt to recover under a theory of breach of warranty. 

Many states have passed legislation making it more difficult to bring and prevail in medical malpractice actions.  Health care professionals, hospitals and facilities are protected by legal limits called “caps” on the amount of damages and attorneys’ fees that can be awarded in malpractice actions in most states.  Some states have state laws providing a set time-frame within which a patient must file a malpractice suit in court.

Certificate of Merit

In order for a plaintiff to file a certificate of merit, the plaintiff will first have to have an expert, usually another health care professional, review any relevant medical records and certify that the plaintiff's health care provider deviated from acceptable medical practices, which resulted in injury to the plaintiff. The plaintiff's attorney will then file the certificate of merit, which confirms the attorney has consulted with a medical expert and that the plaintiff's action does have merit.

If a case where a hospital employee commits malpractice, the hospital itself may be held liable. An employer may be held responsible for the negligent acts of its employee if the employee was acting within the scope of his or her employment when the negligent act and/or omission occurred. This is very important to plaintiffs in medical malpractice cases, as it helps ensure there will be a financially responsible party to compensate an injured patient.

If a doctor or other health care professional is an independent contractor, and commits malpractice while treating a patient in a hospital, the hospital cannot be held liable for the doctor's negligence. However, the hospital can be held responsible for its own negligence, for example, in granting attending privileges to an incompetent or unlicensed health care professional.