Last Updated on April 6, 2021 by Legal Team
When Your Doctor Messes Up: A Guide to Medical Malpractice Lawsuits
When receiving medical care, patients place their trust in medical professionals to take care of them. Unfortunately, mistakes made during medical treatment can result in life-changing injuries. Medical malpractice lawsuits are often daunting because they involve two highly specialized areas of expertise, personal injury law and medicine. Below is a roadmap for diagnosing your medical malpractice case and what to expect throughout the process.
Step 1 - When to File
The first thing to know is how much time you have from the injury to file your lawsuit. Each state is different, so make sure you know what your state’s limit is so that you don’t run out of time.
Step 2 - Find Our What Can be Done Medically
Next, you should contact your medical professional for any potential medical treatment. If there is no treatment, contact the healthcare board by which the healthcare professional is licensed and inform them of what has occurred. Lastly, some states require a plaintiff to obtain a “certificate of merit” to determine if the medical professional’s conduct resulted in your injuries.
Step 3 - Proving fault by the medical practitioner
A plaintiff must typically prove negligence to recover money in a medical malpractice case. In short, to prove negligence, you must prove that the doctor did something out of the ordinary, something that others in the medical field would not have done to treat a similar medical condition. Additionally, the departure must have resulted in, and caused, an injury to the patient.
Negligence by the healthcare professional is not the only way to recover for medical malpractice, just the most common. Another way to recover can involve the improper prescription of medications or medical devices. Medical Malpractice may also arise if a healthcare provider fails to obtain informed consent to treat the patient.
Step 4 - Who to Sue and Medical Malpractice Insurance
Depending on the cause of the injury, you may be suing various healthcare workers, like nurses and doctors, or healthcare providers. Hospitals are also often sued for their actions or the actions of one of their employees. Furthermore, pharmaceutical companies can commit medical malpractice when a drug causes a patient’s injuries.
Due to plaintiffs suing healthcare workers, almost all doctors carry medical malpractice insurance. The insurance company will be the one who pays the damages to the plaintiff. Therefore, when negotiating a settlement, the insurance company has the final say on whether to approve the final dollar amount.
Step 5 - Picking a Medical Malpractice Attorney
There are probably hundreds of personal injury attorneys in your area, and picking one is a daunting task. The nature of medical malpractice will make this process easier as few attorneys truly specialize in medical malpractice. Many personal injury attorneys have minimal experience in med-mal cases, so make sure you get a specialist for the best result. Do your homework and find the best attorney for your specific case. Most law firms conduct an initial investigation to determine the quality of your case and how to proceed. Take advantage of these initial investigations as a tool to gauge whether they know what they are doing and are confident that they can handle such a case.
Step 6 - Medical Malpractice Litigation
Once the case is filed, and the initial papers are served, your involvement will be minimal. Your attorney will likely reach out to you regarding any information needed or to ask if you have certain documents. It is okay if you don’t have this information.
You will not be required to be present for a majority of the court or legal proceedings. The only times your presence is needed are depositions and potentially for a settlement conference. During the deposition, the defendant’s attorney will ask you questions, and you have to answer them honestly.
Step 7 - Medical malpractice verdicts - Settlements and trials
Next, the two sides will begin negotiating with hopes of a settlement, but patience is required as this can take time. Your attorney is required to notify you any settlement proposal the defendant offers, and you provide the final approval or rejection. If the parties cannot settle, they may choose to go to mediation or arbitration for a third party to help resolve the case. A trial is held if all else fails.
Your Medical Records and Background
During your medical malpractice lawsuit, your health and medical history are the focus. You will likely be required to provide all medical records pertaining to the injury to your attorney and probably the opposing attorney as well. Because you put your health in dispute, anything that is possibly related is subject to being examined. Be prepared to discuss your lifestyle and medical background in depth.
Damages for Medical Malpractice
You can recover for any pain they’ve endured as a result of medical malpractice. Severe financial hardship often occurs as a result of medical malpractice. Between medical expenses and lost income, there are typically significant financial losses. Therefore, the damages awarded will include money for physical pain, past and future medical expenses, and lost wages.
Common Medical Malpractice Cases
● Misdiagnosis or delayed diagnosis: Between 2013 and 2017, one-third of all medical malpractice cases were misdiagnosis or delayed diagnosis. A misdiagnosis typically occurs when a doctor fails to: recognize symptoms, order medical testing, or refer the patient to a specialist. Delayed diagnosis occurs when a doctor has previously missed signs of a medical issue and diagnoses it later, typically when an injury has already happened.
● Failure to treat: Failure to treat is a violation of the standard of care a medical caregiver must maintain when treating patients. Failure to treat can result from a doctor trying to care for more patients than they can handle. Additionally, failure to treat includes: Early release from a hospital, failing to provide follow-up care instructions, and failing to order appropriate medical tests.
● Failure to warn: Before performing a medical test or procedure, a doctor must warn the patient of potential risks involved. Failing to explain the risks to a patient is considered medical malpractice.
● Prescription drug errors: Prescribing the wrong drug to a patient can fall under the medical malpractice umbrella. Prescription drug errors may include: Prescribing the wrong medicine, prescribing the wrong amount, failing to recognize dangerous drug interactions, and failing to recognize signs of addiction or patient misuse of the drug.
● Surgical or Procedural Errors: When a mistake occurs during surgery, medical professionals can be held responsible. This rule applies to both serious surgeries and minor procedures, including out-patient procedures. Frequent mistakes during surgery include: Performing surgery on the wrong body part or wrong patient, surgical tools left inside the patient, and failure to follow the medical standards before, during, and after surgery.
A lawsuit involving medical malpractice is an emotional process. Therefore, it is important to be prepared and know what to expect going in. Being prepared will help you avoid getting too caught up in the highs and lows of a med-mal lawsuit. The best medical malpractice attorney will guide you through the legal process and be there for you when things may become too emotional for you to handle. Many attorneys recognize they are not only their client’s lawyer but also their therapist. This can be the most challenging time of your life, so you must have an attorney you can rely on both legally and emotionally.