5 Important Things You Should Know About Medical Malpractice
Do you want to put your life into the hands of a complete stranger? No person in his or her right mind would do something so reckless, right? However, each one of us does it on a regular basis. When we get sick, we go to see a doctor. The unconditional trust we put in doctors is usually justified. Unfortunately, everyone makes mistakes.
The doctors are human too. However, their errors may be much more costly than mistakes made by people of other professions. If you’ve suffered due to the negligence of a doctor, you became a victim of medical malpractice. In order to exercise your rights, you need to know the following facts.
- What Is Considered Medical Malpractice?
Medical malpractice is the health care provider’s act of negligence or recklessness, which leads to an injury or death of a patient.
Negligence is failing to provide adequate treatment to the patient. In other words, the doctor fails to provide the type of treatment another educated and skilled doctor could have offered in a similar situation.
Medical negligence includes failure to diagnose and the lack of proper treatment for a harmful medical condition. The absence of the right diagnostics and treatment may lead to worsening of the condition and the death of a patient.
One of the most dangerous examples of medical negligence is errors that doctors make during medical procedures, especially surgeries.
It’s important to note that medical law allows the doctors a certain amount of leeway for errors when performing the procedures. Each error is evaluated to determine if it complies with the applicable medical care standard. If it doesn’t, then it may be called malpractice.
Recklessness is a rare occurrence in the medical profession but it does happen and is considered malpractice. Recklessness involves a doctor’s risky behavior such as performing a surgery under influence of mind-altering substances. Such behavior can also include administering high doses of medications that can lead to a patient’s disability or death. Recklessness can be called a severe form of negligence.
Examples of medical malpractice are:
- Surgical errors,
- Emergency room mistakes,
- Prescription errors,
- Delay in diagnosis,
- Hospital infection,
- Birth injury,
- Anesthesia errors,
- Failure to warn the patients about risks.
- When Can You File For Medical Malpractice?
Medical malpractice is one of the hardest crimes to prove. Most of the time the health care providers do everything to deny any wrongdoing on their part. Even if the doctor admits to making a mistake, their insurance company does everything possible to avoid making payments. Hospital and insurance companies have an army of attorneys working to take any malpractice case apart, since the restitution may be very sizable.
If you believe that you’ve become a victim of medical negligence, it’s imperative to call a medical malpractice law firm. Fighting the hospital on your own is close to impossible. Even the smallest mistake you make during the process can cost you the case.
Making First Steps
When you believe you’ve become a victim of negligence and think you require medical malpractice defense, you should take 2 simple steps before calling the lawyer, unless you are dealing with a death by malpractice.
- Talk To Your Doctor
You have some time before filing a negligence complaint so you can try to resolve the matter peacefully. The malpractice proceedings are a tough and time-consuming process that can often be avoided. In many cases, what you view as malpractice may be a simple misunderstanding that your doctor can resolve quickly.
- Go Higher
If talking to the doctor doesn’t solve the problem, you can go higher and take the matter up with the hospital administration. You can file a written complaint with the hospital in order to be taken seriously. In some cases, such actions are sufficient to solve the problem on the spot.
If these steps don’t work, then you can go ahead and call a lawyer. It’s important to find a law firm that has experience in medical malpractice lawsuits since they have specific experiences and qualifications.
Timing Is Everything
It’s imperative to enlist the support of a lawyer as soon as possible due to the statute of limitations. In short, if you wait too long to file the claim, you won’t have a case.
The statute of limitations varies from state to state. It can be as short as 1 year and as long as 4 years.
- Louisiana, Kentucky, Tennessee – 1 year
- New York – 30 months
- Nevada, California, Vermont, Maine, New Mexico, Maryland, Massachusetts, Montana, North Carolina, Rhode Island, South Carolina, Washington, and Wisconsin – 3 years
- Minnesota – 2 years
The remaining states have a 3-year statute of limitations. In any case, the faster you file the claim, the more chances you may have of winning the case.
Proving Your Case
In order to file a lawsuit, it’s not sufficient to show that a medical malpractice took place. You have to prove that medical negligence is the reason for your injuries. Even though it may sound obvious, unfortunately, it’s not. In court, you’ll need expert testimony to prove your case.
Besides the expert testimony, you can obtain other things to help you prove that the injuries are the result of medical negligence and not of actions taken by the patient. You need to make sure to collect as many documents as possible, including:
- Any letters received from the health care provider/hospital connected to the case,
- Medical bills/receipts,
- All information about your final diagnosis,
- Doctors’ notes,
- Photos of your injuries,
- Personal log/notes about your medical history.
It will be up to your attorney to find a witness and/or medical expert, who can show that you sustained injuries due to medical malpractice.
- Do You Have The Basis for Filing a Claim?
As we said above, proving the case may be quite hard. You need to be able to show the below things:
- You had a doctor – patient relationship. In order for a malpractice to occur, a doctor-patient relationship must exist, which means you hired a doctor and he or she offered the services. Accordingly, any advice a doctor gave you beyond the hospital walls (i.e. at a barbeque) is not considered part of the relationship.
- Negligence occurred. If you are unhappy with the way the doctor is treating you, it doesn’t mean that you have a medical malpractice case. In order to have a case, a doctor must be negligent in making a diagnosis or treating you. You have to prove that the doctor’s actions were harmful to you while, under the same circumstances, another competent doctor wouldn’t have done the same. In court, you’d have to prove that the doctor didn’t comply with the medical standard of care.
- Negligence was the reason for the injury/death. This is the hardest part to prove since in most malpractice cases, the patients were already sick or injured when they started a relationship with the doctor.
Accordingly, it’s very hard to show that the injury occurred as a result of a doctor’s action. For example, if a patient dies from cancer, it’s tough to prove that the death occurred due to medical malpractice and not because of cancer itself. In a majority of situations, only a medical expert’s testimony can prove that negligence led to an injury or death.
- What Damages Can You Get?
When you are filing a medical malpractice case, you have to know the damages you are entitled to.
- Compensatory Damages
These damages include money you might have lost due to a disability and hindered/lost earning capacity. They also involve life and health care expenses as well as reimbursement of the medical expenses. Depending on each particular case, the court considers both past and future losses pertaining to the medical malpractice.
The compensatory damages may also compensate noneconomic damages that come as a result of an injury, such as pain, emotional distress, etc.
- Punitive Damages
Such damages can be awarded in case the health care provider is proven guilty of recklessness. The goal of these damages is to punish the defendant in addition to the economic damages.
- Should You Consider an Out of Court Settlement?
Medical malpractice cases are time-consuming and very costly. Even if you end up winning the case, the emotional stress you experience while proving it may not be worth the efforts. In case you have a minor injury, many attorneys recommend settling the matter without going to court. Most of the health care providers agree to an out of court settlement in order not to hurt their reputation.
Most of the medical claims insurance companies refuse to honor a big part of medical negligence claims. Accordingly, it makes sense to decide on an out of court settlement. However, this is only true if you believe you don’t have a strong case. Consulting an attorney can help you understand whether your case is strong enough to seek a larger settlement.
We’ve mentioned several times how tough it is to proceed with a medical malpractice case. However, if you have a truly strong case with sufficient evidence, it’s imperative that you go through with it with experienced legal counsel.
No matter how tough the road to victory may be, we recommend trying to protect your rights as a patient and fight for compensation.