Medical malpractice: FAQ
By WORLDLawDirect [January 30th, 2011]
- What is "medical malpractice"?
- What must be shown to prevail in a medical malpractice case?
- Who can be held accountable for medical malpractice?
- Have I waived my rights because I signed a waiver or consent form?
- What is the first step in pursuing a claim?
- How do I know if I have a good case.
- What if I am told I do not have a good case?
- What about the costs involved in pursuing a case?
- How long will a case take?
- When must one make a claim?
- Why is a medical malpractice lawyer needed for medical mistakes?
1. What is "medical malpractice"?
Medical malpractice is a broad term generally used to describe any treatment, lack of treatment, or other departure from accepted standards of medical care, health care, or safety on the part of a health care provider that causes harm to a patient. Examples of medical malpractice can take many forms, too numerous to list. Medical malpractice can include, however, misdiagnosis, improper treatment, failure to treat, delay in treatment, failure to perform appropriate follow-up, prescription errors, etc. In many instances, medical malpractice is not obvious to a lay-person and requires the review and analysis by medical experts. 2. What must be shown to prevail in a medical malpractice case?
While there are various types of medical malpractice claims, generally speaking, a claimant must usually show the following:
- the health care provider owed a duty to the patient;
- the health care provider breached that duty;
- the patient suffered an injury; and
- the patient's injury was a proximate cause of the health care provider's breach.
A physician owes a duty to a patient once a "doctor-patient" relationship has been formed. Such a relationship is usually formed when the physician agrees to care for the patient. Nonetheless, even if it is established that a duty existed and the health care provider breached that duty (eg. failed to meet the requisite standard of care), a claimant may not recover unless the claimant suffered injuries that were a direct result of the breach. If the breach resulted in no harm to the patient, a claimant generally has no right to recovery.
3. Who can be held accountable for medical malpractice?
Generally speaking, a medical malpractice claim may be pursued against those who provide medical or health care to a patient, including, physicians, registered nurses, hospitals, dentists, nursing homes, and pharmacists. Medical malpractice claims may be brought against individuals, partnerships, professional associations, and corporations.
4. Have I waived my rights because I signed a consent form?
No. A consent form does not give the health care provider a license to commit malpractice. While the execution of a typical consent form indicates acknowledgement of stated risks and complications associated with a given treatment or procedure, it does not relieve the health care provider from his or her duty of meeting the standard of care associated with such treatment or procedure.
5. What is the first step in pursuing a medical malpractice claim?
The first step in pursuing a medical malpractice case is suspecting that one may have been the victim of medical malpractice. While not every bad result is due to medical malpractice, one who develops a "gut feeling" that something was wrong should consult a qualified attorney to review the matter, who often will consult with medical professionals. This process often involves the obtaining and review of medical records and other pertinent information. If it is determined that one has a good case, the next step is usually to give written notice of the claim to the individuals or entities that are believed to have committed the medical malpractice.
6. How do I know if I have a good case?
Given that each case turns upon its own facts, determining the merits of your case usually involves a two-pronged process. A medical review must be conducted to evaluate whether or not the medical professional(s) in question acted, erred, or failed to act in such a manner so as to fail to meet the appropriate standard of care under the circumstances. If, from a medical perspective, medical malpractice is found, a further review of the case must be made by an attorney in order to determine the viability of the claim from a legal perspective, often considering such factors as the statute of limitations, the potential recovery, the ability to collect upon a judgment if obtained, etc. Many factors and considerations go into such an analysis. Given the complexity of the medical and legal issues, one who suspects that they may have been the victim of medical malpractice should consult a qualified attorney who can, along with the assistance of medical professionals, analyze the merits of one's claim, often for free.
7. What if I am told I do not have a good case?
Determining whether or not one has a "good case" is more of an art than a science. Because a determination as to whether or not one has a "good case" depends upon the professional judgment (based upon many factors and considerations) of medical experts and attorneys, it is recommended that one seek a "second opinion" from one or more qualified attorneys if told that one's case is without merit.
8. What about the costs involved in pursuing a case?
Some attorneys will agree to handle medical malpractice cases on a contingency fee arrangement. This means that the attorney will not charge an hourly rate for his or her services, but instead will be paid a percentage of the recovery in the event of a settlement or judgment. In many instances, such attorneys will also pay the case development expenses (such as expert fees, deposition costs, etc.) with the understanding that he or she will recoup such costs only in the event of a recovery. Thus in many cases, one may be able to secure legal representation without having to pay any attorney's fees or expenses out of one's own pockets. 9. How long will it take to pursue a medical malpractice claim?
There is simply no easy answer to this question. The vast majority of all cases, including medical malpractice cases, are settled prior to trial. Some cases are settled prior to the filing of a lawsuit, while others are settled during litigation or even on the "steps of the courthouse" just before trial. A medical malpractice case, if litigated to trial, could last a number of years. One who pursues a medical malpractice case should understand from the outset that a quick resolution cannot be guaranteed.
10. When must one make a claim?
Generally speaking, a victim of medical malpractice has a limited time period in which they must pursue their claim or be forever barred. In some states, the "statute of limitations" is two years from the date of the incident of malpractice. Certain exceptions may exist under the law in certain circumstances. For instance, the foregoing time period may be extended for certain individuals, including those who are minors when the malpractice occurred. Additionally, in certain instances, such as when a medical profession conceals the incident of malpractice, victims that did not know, and could not have known of the malpractice until sometime after the incident are allotted additional time under the law to file a lawsuit. The foregoing exceptions are fact sensitive and require the analysis of a qualified attorney to determine if they are applicable.
A potential claimant should always seek the advice of an attorney without delay. In certain cases, there may also be other deadlines within the first two years that may also impact the case. For example, claims against government entities may require that the entity or entities be put on "notice" much earlier than the the statute of limitations period. Furthermore, given that a medical and legal analysis must be done prior to filing a lawsuit, one should not wait until the statute of limitations period is nearing its end because the attorney may not have enough time to complete the review prior to its expiration.
It is also advisable to consult an attorney as soon as possible for other reasons as well. Memories of the event or events in question tend to fade in witnesses, potential witnesses may later be unavailable because they have moved, become incapacitated, etc.
11. Why is a medical malpractice lawyer needed for medical mistakes?
Medical malpractice is a doctor’s failure to exercise the degree of care and skill that a physician or surgeon of the same medical specialty would use under similar circumstances. A lawyer that knows about medical problems and medical laws is needed to help a claim reach the courts in the fastest, accurate, and most complete way possible. A medical malpractice lawyer will work with the hospital system and legal system to find out what your rights and legal options are. While you or someone you know gets better or recovers from a medical mistake or injury, the medical malpractice attorney fights for your legal rights.