In the South Carolina workers’ compensation system, your employer gets to choose your healthcare provider. So, what happens when the doctor commits malpractice? Can you sue them? How does it impact your workers’ comp claim?
Attorney Robert “Bobby” Jones explains medical malpractice in workers’ compensation care.
Can You Sue Your Workers’ Comp Doctor?
Yes — in specific cases of malpractice, you can sue a workers’ comp doctor. The same standards for professional medical services apply to workers’ comp doctors that apply to all healthcare professionals.
If the doctor doesn’t provide care up to reasonable standards, they may be liable to the victim for the harm that results.
Do you get workers’ compensation if you’re the victim of medical malpractice from a workplace injury?
In South Carolina, injuries that are the natural result of the on-the-job injury are also included in the workers’ compensation claim. If a person receives medical care for a workplace injury, and they are injured by the medical care, it is deemed a part of the workplace injury.
The victim may receive workers’ compensation benefits for physical injury, including medical care, replacement income and reevaluation of an impairment rating. (See S.C. Code § 42-15-70).
Can you sue the employer for medical malpractice during workers’ comp treatment?
No. If you’re the victim of medical malpractice during workers’ compensation treatment, you can’t sue your employer. You can sue the doctor responsible – but not the employer. S.C. Code § 42-15-70 says that the employer is not liable in tort for malpractice by a healthcare professional providing care.
However, they must include the new injuries in the workers’ compensation case.
Case Law on Medical Malpractice in Workers’ Compensation
Hardee v. Bruce Johnson Trucking Co., 293 S.C. 349 (Ct. App. 1987). – The victim was working for a trucking company. A back injury at work led to surgery, which was performed negligently. Complications followed. The court affirmed that a victim may enforce their rights against a third party that commits malpractice. Victims must comply with unique procedural requirements including providing notice of the action to interested parties and a lien on proceeds from a judgment or settlement for expenses paid by the carrier. See S.C. Code § 42-1-560(b).
Whitfield v. Daniel Constr. Co., 226 S.C. 37 (1954). – A 33-year-old steel worker suffered a scalp laceration at work. They received stitches and pain medication. They then returned to work. Later that day, they ran their vehicle off the road, crashed into a guard rail and died. The court said that the employer is liable in workers’ compensation for unexpected effects of medical treatment. Every natural consequence of an injury continues to be compensable unless through workers’ comp absent an independent intervening cause.
Tatum v. Medical University of South Carolina, 346 S.C. 194 (2001). – The injured was an employee of Medical University of South Carolina. They were referred to an MUSC physician for treatment. Later, the injured party sued for medical malpractice. The court said that they could not sustain a claim because the negligent physician worked for the employer, and workers’ compensation excludes all other rights and remedies against the employer. Because the employer happened to also be her treating physician, she could not sustain a claim for medical malpractice. (This is an unusual factual scenario and contrary to the application of law in most cases.)
Changing workers’ comp doctors
Also remember that you can request to change doctors. You may ask the employer to approve the change, or you can request a hearing, citing medical malpractice as your reason.
What to Know About Medical Malpractice in Workers’ Compensation
If you are the victim of medical malpractice in workers’ compensation treatment, you can sue your workers’ comp doctor. However, there are procedural steps you must follow, and the employer may have a lien against the recovery for the cost of medical care they provide.
You should receive workers’ compensation benefits for additional injuries that result because of medical malpractice during treatment.
Work With a Lawyer Who Handles Workers’ Comp and Medical Malpractice Cases
Bobby Jones Law represents people who are hurt on the job. When you are the victim of medical malpractice during workers’ compensation care, you’re hurt twice. Lawyer Robert “Bobby” Jones can represent you, evaluating your options and protecting your rights.
To talk about your situation and start your case, call us today.
