A medical malpractice suit is something none of us ever wants to be involved in. When we get sick or injured, we are at our most vulnerable. Not knowing what to do, we put our trust in health-care providers (like doctors and nurses, dentists, pharmacists, etc.) and facilities (like hospitals, nursing homes, surgical centers, etc.) to help us. If, because of improper treatment, we suffer harm or further injury, we feel that trust has been betrayed. And worse, we may get sicker, become more disabled or disfigured, or suffer more pain and stress if we don’t get the proper care we signed up for when we became a patient. There can even be life-and-death consequences. No doubt, there will be higher costs and additional expenses, and maybe lost wages and income to deal with. You may feel even more helpless and hopeless and that you don’t know where to turn.
When you become a patient you should expect diagnosis and treatment that is timely and meets the standard of care. You shouldn’t be the victim of carelessness, mistakes, negligence, misinformation, or bad judgment. If this has happened to you or to a loved one, you may be reluctant to question the performance of the provider or facility. But, you deserve answers. If you were wronged you are entitled to compensation for your losses. Furthermore, you can help to make sure other patients that come after you don’t encounter a repeat of the same problem.
Why should you consult with a medical malpractice lawyer?
There are many kinds of malpractice and the cases can be complicated. Even deciding if malpractice has occurred, and if your case should be pursued, may not be straightforward. You need a confidential consultation with a compassionate and competent attorney to guide you in the process and help you decide how to proceed. Expert opinions may be needed to evaluate your case. I can provide a thoughtful, no-cost initial consultation. Together we can discuss what happened and get the records, information, and opinions we need to help you make the right decision.
An overview of medical malpractice law:
Medical malpractice is a sub-type of personal injury or tort case. It’s a civil lawsuit brought to obtain compensation for damages resulting from a harm or injury suffered because of the negligence or wrongful actions of another party — in this case a health-care provider or facility. As in any tort case, four elements must be present to successfully bring your case:
- The provider had to have a duty to act in accordance with reasonable medical standards of care. In the medical setting it’s usually pretty easy to determine if you had a patient relationship that required this duty on the part of the provider.
- There must be a breach of that duty — a failure to carry out the duty. In the medical setting, it means the standard of care was not met. That means the provider didn’t do what a similarly trained and situated provider would’ve done in your circumstances. This is usually the crux of the case. It requires careful review of all information and the record for evidence, and obtaining expert opinion that the standard was not met.
- An injury occurred. This is usually not hard to determine, though there may be arguments about the extent and cost — the damages suffered, which we’ll discuss later.
- The breach of duty was the proximate cause of the injury. You have to make the case that the injury was caused by the breach (and would not, for example, have occurred anyway).
In any civil tort case, including malpractice, the burden of proof is not the same as in a criminal case. You don’t have to prove the case “beyond a reasonable doubt”. The standard is less and can be described as a “preponderance of evidence” meaning it’s more likely than not. It’s also important to remember that in malpractice cases, as in most torts, a very small percentage of cases actually go to trial. Often your legal representative can negotiate a fair and reasonable settlement to compensate you for your losses without a trial.
The damages you can recover are a monetary compensation to cover those losses. The intent of recovering damages is restoration, that is, to return you, to the extent money can do so, to where you were before the injury, to “make you whole”. There are several categories of damages, among them:
- economic damages — the expenses and costs of medical and other needed care, losses of current and future income, etc.
- non-economic damages — sums recovered in compensation for “pain and suffering” — the emotional and psychological damages resulting from the injury. This can include actual pain and suffering as well as things like anxiety and worrying about how to pay bills, impairment and loss of relationships, etc.
- punitive damages — in some tort cases, damages can be awarded to “punish” and deter or prevent further abuse by a provider, like a large drug company
- court and legal fees incurred in pursuing the case may, in some cases, be recoverable. The legal fees, as in most torts, are usually paid on a contingency basis — meaning they are only due when your case is successfully concluded and you recover compensation.
There are many areas or kinds of medical malpractice:
- wrong or missed diagnoses
- improper treatment
- delay in diagnosis and treatment
- errors in drug administration, dosing, and labeling
- drug side effects
- failure to document and communicate allergies
- failure to get informed consent for procedures
- surgical errors — such as operating on the wrong side, doing the wrong procedure, leaving instruments inside the body, post-operative complications, etc.
- transfusion errors such as giving the wrong blood type
- hospital errors like medical record mistakes, unsterile instruments, poor attention to patient care leading bed sores or falls, giving the wrong medication, etc.
- nursing home problems like physical or sexual abuse, malnutrition, medication errors, general neglect, theft by personnel, etc.
- wrongful death — if the malpractice resulted in the death of a loved one, they obviously can’t make a claim. However, you, as a survivor, can seek justice on their behalf.
Evaluating a claim of medical malpractice iscomplex. Strict timetables must be met and proper procedures followed in pursuing your claim. Good legal advice from a competent and knowledgeable attorney is essential. If you or a loved one has been the victim of medical malpractice, don’t delay and make sure you get that advice. Contact me for a no-cost initial consultation.