Children with special needs often have increased exposure to healthcare systems and healthcare workers. Unfortunately, not all of these encounters will be positive. While most medical professionals do truly want to help patients, a variety of factors can lead doctors and other healthcare providers to take less care than they should – with sometimes devastating results. Children with special needs rely on others, like their parents, to recognize when something is amiss and take steps to correct the situation and prevent further harm. For concerned parents, fulfilling this responsibility may mean examining the potential for a case of medical negligence. You may find this assessment easier to undertake with the advice and assistance of a malpractice attorney. Reach out to Erin Marshall Law in the Albuquerque area by calling 505-218-9949 to let us know your concerns.
Negligence and Liability: The Legal Framework for Understanding Medical Malpractice
More than likely you are familiar with the legal concept of negligence that forms the basis for most personal injury lawsuits, like those that often arise from motor vehicle crashes or slip-and-fall accidents. While the American court system is deliberately designed to make it relatively easy – compared to the systems in some other parts of the world – for individuals to file legal actions seeking remedy from the courts for harms the person filing claims are the fault of another party, winning a personal injury case based on negligence will require the plaintiff to prove a few specific elements:
- The defendant owed the plaintiff a duty of care
- The defendant breached that duty of care
- The plaintiff suffered damages
- The damages suffered by the plaintiff were caused by the defendant’s breach of the duty of care
These essential elements will apply to any negligence-based personal injury case, including medical malpractice.
Basis for Personal Injury Claims
Even though “injury” in most contexts refers to physical wounding, in legal settings the word may be used in two more technical meanings:
- To refer to the infringement of a legal right, according to Cornell Law School’s Legal Information Institute (LII); common examples could include interfering with an individual’s use of his or her own property
- As the second half of the term personal injury, where it broadly covers the type of law that allows a plaintiff to seek remedy through the civil courts for a variety of losses or harms
Personal injury claims, also according to LII, may be brought for both bodily and non-bodily harms, but they are distinct from civil tort cases based on infringement of property rights (a circumstance which serves to underscore the difference in these two uses of the word injury). Often in medical malpractice cases, the damages for which a plaintiff seeks compensation will include both economic losses and bodily harm.
Personal Injury and Duty of Care
Medical malpractice cases are one form of personal injury lawsuit, and like the vast majority of personal injury cases they tend to be brought on the grounds of negligence. What makes malpractice cases special is that they apply a different standard to the duty of care than do most other negligence-based claims.
Duty of Care in Negligence Cases
Usually, the “duty of care” in a civil lawsuit alleging negligence means the care a reasonable or responsible person would be expected to take under circumstances similar to those that allegedly led to the plaintiff’s damages. The language may vary somewhat by jurisdiction, but the standard in general is a close approximation of the level of care that the members of a society are normally expected to take to avoid inflicting unnecessary damage on the people around them as they make their way through the world.
Professional Responsibility
In certain circumstances, the standard for the duty of care is much higher, which also means that the bar for what constitutes negligence is comparably lower. The dominant example of this heightened responsibility arises in the context of the relationship between a professional and a client who relies on him or her to provide a type of expertise that the client cannot reasonably command on their own. Several types of professional relationships are theoretically subject to this type of enhanced duty of care: the relationship between a financial adviser and an advisee could be an example in some cases, and attorneys-at-law are expected to adhere to a set of ethical standards that similarly assume a high degree of client trust and commensurate responsibility on the part of the attorney. The area in which a breach of this responsibility, or duty of care, is most often called malpractice is in medicine.
Medical Malpractice Duty of Care vs. Standard of Care
In medical malpractice cases the terminology can sometimes get confusing because, in addition to the duty of care, which is subject to a higher standard in malpractice cases than in most other civil lawsuits based on claims of negligence, there is also a separate concept from the medical field called the standard of care. The standard of care is essentially the medical community’s consensus on how to treat a specific condition – or, particularly in situations where there may not be an immediately clear diagnosis – how to treat patients presenting with specific symptoms.
The medical standard of care and the legal duty of care often intersect in a medical malpractice case because for this case type the breach in the duty of care normally comes by way of a failure by the medical professional to apply the standard of care in a particular situation, or to a particular patient. As tragic as it is, children with special needs can be even more vulnerable to the risks posed by medical negligence than are adults, or peers who do not grapple daily with the same challenges. For precisely this reason it is critical to hold physicians and other healthcare providers to the highest ethical standards when they are caring for these patients.
Malpractice and Medical Negligence: Protecting Children With Special Needs
The concept of malpractice as distinct from simple negligence owes its place in American jurisprudence to a general acceptance of the reality that no one is equipped to act as their own expert or advocate in every conceivable situation. We seek the services of dedicated professionals to assist with matters at or beyond the limits of our own skill and knowledge, and – because the expertise we would need to assist the quality of their performance is generally similar to that which we would need to do the work ourselves – we trust them to take appropriate care in the service of our best interests.
Nowhere is this principle more important than in the field of medicine. Health care professionals see patients when they are at their most vulnerable, when even the most capable and determined among them will necessarily function at less than their personal best, and workers in all areas of medicine are interested in tremendous responsibility for the futures of individual patients. Children and people with special needs can be especially at risk from the dangers of medical negligence, and children with special needs even more so.
Special Needs, Special Risks
All children may be created equal, but all children’s needs are not the same. Even within the more limited category of children with special needs, the particular challenges an individual child may face, as well as the kinds of support the child may need, can depend heavily on the nature and severity of the condition – or in some cases, the conditions – with which the child is dealing.
Although the parents of children with special needs may be used to thinking of their children’s support needs in terms of what they, the parents, can do to meet their children where they are, a corollary of each set of needs is that it creates a set of vulnerabilities. While the specifics will differ from one child to another, to some extent the needs themselves tend to shape the vulnerabilities and what to watch for.
Physical Differences and Disabilities
Children with special needs based on physical disabilities or differences can face a number of risks in healthcare settings. Children with limited mobility may struggle to navigate the physical spaces they need to move through in the course of their medical treatment. They are also, unfortunately, at increased risk of abuse in many settings, including environments supposedly dedicated to health care. Children who are deaf or who have limited vision bear an added burden in recognizing and responding to potential problems. Even medical professionals who have sound intentions and truly mean to deliver quality care can sometimes fail to adequately consider and adjust for these young patients’ needs. Many children with special needs who have physical disabilities may also have accompanying medical issues.
For children whose care histories present as medically complex, not only is there an increased risk of mistreatment due to an ingrained perception of weakness, but also in many cases there is increased risk exposure due to the simple fact that these children are in medical settings and under the care of health care professionals more often than are most other children. Getting medical care for your child is obviously indispensable, but the simple truth is that more time in healthcare environments easily translates to more chances for a physician or other healthcare professional to make a careless mistake. While your child’s health should never rely on a simple “numbers game,” recognizing the risk and assessing it honestly can help you be on guard and ready to advocate for your child’s best interest.
Communication Challenges
Communication challenges, some communication challenges may stem from physical disabilities or differences, such as deafness that make it difficult for a child to register input other people consider normal and respond in kind. Other struggles with communication can arise from intellectual disabilities or developmental delays. In these cases, the difficulties in self expression may be complicated by trouble understanding various aspects of their situation. Still others can occur in children with special needs who hear and see the attempts medical professionals make to present information and have no difficulty in understanding their situation when it is explained in an age appropriate manner, but nonetheless struggle to engage effectively with healthcare providers.
Miscommunication and Missed Diagnoses
This scenario can be especially common in children with autism spectrum disorder (ASD), who have relatively “lower” support needs compared to nonverbal peers. These children can, on the contrary, be extremely verbal, and yet in many cases they may find the nonverbal aspects of communication, and especially the affective register many healthcare professionals are habituated to adapting in their interactions with children, to be bewildering and exhausting.
Physicians and other healthcare providers may not always apply the standard of care in dealing with these patients and asking appropriately leading questions to diagnose physical conditions. A 2021 article published in the Scandinavian Journal of Primary Health Care and available in the United States through the National Library of Medicine (NLM) has underscored the reality many parents of children on the autism spectrum know too well: General practitioners are often in more of a hurry to send ASD patients to specialists than they are to treat the physical ailments of these children with special needs.
Accommodation of Special Needs as Co-Occurring Medical Conditions
A complicating factor in communication challenges for many children with special needs can be that children in general have a limited basis of experience on which to judge the way they should expect to be spoken to, and the information they should attempt to report to physicians or to their parents. When medical professionals neglect to follow evidence-based practices accepted within the scientific community for accommodating a patient’s special needs concerning communication, the result can be missed or delayed diagnoses, inadequate or inappropriate treatments, and the psychological trauma that too often comes from trying desperately to make yourself heard only to realize no one is listening. A medical malpractice attorney with Erin Marshall Law may be able to help you set your child’s treatment by healthcare professionals in the context of the contemporary standard of care to help determine whether your family may have a case for compensation.
Intellectual Challenges and Developmental Delays
Developmental delays and intellectual challenges of all kinds can of course lead to difficulties in communication. They can make it more difficult for a special needs child to understand what medical professionals need to know from them, and harder for them to articulate a response, to say nothing of volunteering important information a physician may not have thought to elicit.
However, the effects of developmental delays can easily extend beyond communication, in fact, communication challenges may be only the tip of the iceberg. These children may often be distressed by changes in their surroundings on top of struggling with the symptoms of any illness they may have. Sadly, even in the medical profession, these children may be subject to prejudice and stigma, creating conditions that put them at increased risk for cavalier treatment, and ultimately the dangerous health effects that can follow from medical malpractice.
Speak With a Medical Injury Lawyer
Medical malpractice is always a serious matter. Accusations of negligence in the healthcare profession should not be made lightly, nor should they be lightly set aside. Children with special needs, even more than other children still learning the ways of the world, rely on their parents and support systems to recognize when the doctors and other healthcare professionals involved in their care are falling short in their duty of care. Families can often use the advice and support of an experienced malpractice lawyer who can bring perspective to the unique circumstances of their own child’s experience. Reach out to a member of our compassionate and knowledgeable New Mexico team at Erin Marshall Law at 505-218-9949 to schedule a consultation and discuss your concerns.
