Is constitutes medical negligence?

I went to the hospital for back pain and was diagnosed with a strained back muscle. When I went back to Triage the nurse I assume asked if I had ever had a seizure and I explained yes I have an history of epilepsy. I assumed she added it to my file. In 2017 I had been admitted to this same hospital, for having a seizure. When I was given my prescriptions, I was given Tylenol with Codeine, Naproxen and Flexeril. When I took the Flexeril just one, it made me zone out which eventually led to a seizure. Lucky my mom discovered what was happening on the tail end and took care of me. This was 06/02 and I did not wake up until 06/04. My mom being a born investigator discovered that a side effect of Flexeril is seizures. So why would they give a person who has a history of epilepsy a medicine that can cause seizures? I bit my tongue so bad I can swallow and have a sore throat and don’t know what to do.

Asked on June 6, 2018 under Malpractice Law, Virginia


S.L,. Member, California Bar / FreeAdvice Contributing Attorney

Answered 2 years ago | Contributor

Medical malpractice is negligence.  Negligence is the failure to exercise due care (that degree of care that a reasonable hospital would have exercised under the same or similar circumstances to prevent foreseeable harm).
Medical malpractice (negligence) on the part of the doctor who wrote the prescription, is the failure to exercise due care (that degree of care that a reasonable medical practitioner in the community would have exercised under the same or similar circumstances to prevent foreseeable harm).
Prior to filing a lawsuit against the hospital and doctor, it may be possible to settle the case with their malpractice insurance carriers.
When you complete your medical treatment and are released by the doctor or are declared by the doctor to be permanent and stationary which means having reached a point in your treatment where no further improvement is anticipated, obtain your medical bills, medical reports, and documentation of wage loss.  Your claim filed with the malpractice insurance carriers for the hospital and doctor should include those items.
Compensation for the medical bills is straight reimbursement.  The medical reports document your injury and are used to determine compensation for pain and suffering which is an amount in addition to the medical bills.  Compensation for wage loss is straight reimbursement.
If the case is settled with the insurance carriers for the hospital and doctor, NO lawsuit is filed.
If you are dissatisfied with settlement offers from those insurance carriers, reject the settlement offers and file a lawsuit for negligence against the hospital and doctor.
If the case settles with one, but not both parties (doctor and hospital), only name the party with whom the case has NOT settled as a defendant in your lawsuit for negligence.
If the case is NOT settled, your lawsuit for negligence must be filed prior to the expiration of the applicable statute of limitations or you will lose your rights forever in the matter.

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 2 years ago | Contributor

It might be malpractice, or medical negligence (carelessness) if having a history of epilepsy enhances the likelihood of seizures, and if that likelihood is then unreasonably high given the benefits you received (or were hoped to receive) from the drugs. If the anticipated benefits outweighed the risks, that would typically not be malpractice; or if your medical history (epilepsy) did not enhance the risk, then there would be no reason to take it into account. So while this could be malpractice, it is impossible to say definitively based on what you have written whether it is or it is not.
Moreover, malpractice suits are very expensive: you have to hire medical experts to test or examine you (and/or your "chart" or records), write a report, and testify. This can cost thousands of dollars. You also *should* have an attorney, since these are complex cases (though you are legally allowed to bring it yourself, as your own attorney or "pro se"). 
But you can only receive compensation equal to the actual harm and costs you incurred. If you were "out" for two days and now have a sore throat, unless you incurred significant out-of-pocket medical expenses (thousands and thousands of dollars), you could very easily spend more on the case than you'd get back, even if you could prove malpractice.Two days asleep or unconscious, without significant long-lasting life impairment or disability resulting, would not provide much in the way of compensation.

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