Imagine one day, you go to work and tear your rotator cuff while performing your job duties. You follow all protocol and are seen by a doctor immediately, who determines that instead of surgery, less invasive treatments might be appropriate. You get a second opinion by your own doctor, who warns that if you don’t get surgery immediately, you will likely have a permanent impairment and very poor outcomes. Georgia workers’ compensation maintains specific rules about what doctors the insurance company must pay, and your second opinion doctor is not authorized. So, the less invasive treatments are initiated until finally, six weeks later the surgery is approved. As the second doctor warned, you end up with a limited range of motion after the surgery and cannot return to regular work. You also must have a second surgery with additional treatments. You worry about wage benefits and watch your life savings start to dwindle. Is this a case of medical malpractice and what can workers’ compensation do about it?

Requirements for a Medical Malpractice Claim

•      Must show a doctor-patient relationship existed
•      Must show the doctor was negligent (this goes beyond just being “unhappy” with your care, you must show the doctor deviated from the established medicals standards).
•      Must show the doctor’s negligence caused the injury (or exacerbated it)
•      Must show the injury led to specific damages (physical pain, mental pain, medical bills, lost earnings)

Medical Malpractice

If the authorized physician assigned to your case failed to act within the established standards of care which resulted in additional injury or exacerbation of your ongoing condition, it is known and Medical Malpractice. Georgia’s Workers’ Compensation Law does not allow you to make a claim of medical malpractice against an authorized doctor and so it must be independently raised as a separate issue from your current workers’ comp claim. You must show that the treating doctor failed to meet the established professional standard of care and that it caused you harm. Because this medical error aggravated your work condition, your employer must continue to provide medical treatment and wage loss under workers’ compensation law. A doctor’s inability to return you to your pre-injury condition does not establish medical malpractice. It must be deficient medical service to merit the pursuit of both a medical malpractice claims and a workers’ compensation claim.

Utilization Review

Georgia has very specific guidelines in place to prevent trivial lawsuits against doctors. In cases of medical malpractice, often time Utilization Review specialists separate the medical costs from the work-related injury to correct mistakes. It is a complicated formula that provides for immediate repayment and a reduction of future wage loss benefits.

Individuals on workers’ compensation have the same rights as anyone else and can make a claim for medical malpractice if a mistake was made. This includes damages for pain and suffering. That does not make a claim for medical malpractice any less complicated and costly to litigate. You should have both a workers’ compensation lawyer and a medical malpractice lawyer if you find yourself in this situation. Medical malpractice law is highly regulated with a complex set of rules that vary from state to state, so it is essential to seek advice from a specialized lawyer.