Medical mistakes result in a quarter of a million Americans dying every year. That makes this the third most common cause of death after heart disease and cancer. The cost of medical malpractice is not just lives but many billions of dollars a year.
If you’re seeking justice over an injury or trauma that you believe was caused by a medical error then you may want to begin a malpractice lawsuit. That can feel daunting especially in such difficult circumstances. Here’s what you need to know.
The Basics for a Medical Malpractice Lawsuit
When a medical procedure doesn’t end with the best result it’s perfectly normal to want to point the finger of blame. This can be particularly true when there’s a birth injury. A joyful moment is suddenly tinged with sadness and anxiety.
Emotions will be running high so it’s important to be sure that there is a case to answer. Just because you’re very unhappy with the result of a procedure does not necessarily mean there’s been medical malpractice.
To prove that medical malpractice has happened, you’ll need to able to show evidence of the following.
1. A Doctor-Patient Relationship
You’ll have to prove you had a physician-patient relationship with the person you’re planning to sue. This means you should be able to prove that you hired a doctor’s services.
You will also need to show that they agreed to carry out the job concerned. Questions over this can arise if the consulting physician didn’t treat you directly. You may also want to find out if your doctor has been sued before.
2. Negligence on the Part of the Doctor
Medical care is not required to be the best possible, but it does need to be reasonably skillful and careful. For a successful outcome, you’ll need to show that your physician was negligent in relation to your diagnosis or treatment.
If you sue for malpractice, you’ll need a certain level of proof. That means showing that the doctor caused harm in a way that a competent doctor, under the same circumstances, would not have done.
It’s more than likely that you’ll need a medical expert who can explain how your physician deviated from the minimum standard.
3. The Cause of the Injury
Many cases revolve around patients who were sick or injured already. That can immediately create a question mark over whether any alleged negligence caused the harm.
You’ll have to demonstrate a balance of probability. That means showing that it was the incompetence of the member of the medical team which directly caused the problem. A medical expert would again be a requirement here.
4. Proof That the Injury Led to Specific Damages
Just because a doctor’s performance falls below expected standards doesn’t always open the door to claims. You’d need to show the patient suffered harm as a result.
That could mean physical pain or injury. It might involve mental health issues or additional medical bills. It could also include loss of work or earning capacity.
The Most Common Forms of Medical Malpractice
The majority of medical malpractice claims fall into three categories.
The first is a failure to diagnose. A better outcome could have been achieved under some circumstances. That may have happened if your doctor had discovered an illness or made a different diagnosis.
Next up is improper treatment. If a doctor treats someone in a way no other competent doctor would have done then there may be a case to answer. Malpractice may be involved if a physician doesn’t administer the right treatment competently.
Finally, doctors have a duty to advise their patients of any known risks that can crop up during a procedure or course of treatment. If the dangers were not flagged up correctly then the doctor could be at fault.
When to Start a Case
Claims need to be brought quite quickly and as soon as possible. The timeframe by which you need to bring the lawsuit is known as the ‘statute of limitations.’ If you don’t file your lawsuit in time, the court will dismiss it no matter what the facts are.
The statute of limitations is different from state to state. In medical malpractice cases, injured patients in New York would have thirty months to file a lawsuit.
Sixteen states have requirements that medical malpractice cases have to be heard by a screening panel before trial. New York State does not this rule, although an attorney has to consult with a single physician before initiating a lawsuit.
Expert testimony can be crucial. Thirty-two states have laws about the minimum qualifications for expert witnesses. These are the people who would testify in medical malpractice cases. New York State does not have such restrictions.
Generally, an expert would though by definition be someone with experience relevant to the field at issue. The expert would provide what’s called a certificate of merit.
Sometimes, it’s not possible to get this review before the statute of limitations period expires. In this instance, the law still allows you to file the lawsuit. You would then have to supplement it with the certificate of merit within 90 days.
Financial Caps and Apologies
Thirty-five states have a dollar cap on the level of damages a plaintiff can receive. This though does not apply in New York State.
Many states also have provisions regarding medical professionals making apologies or sympathetic gestures. New York State does not. Such statements would not necessarily be taken into account as a matter of course.
Ask for Help from Your Attorney
A qualified and experienced medical malpractice attorney is vital for your case. They can make the difference between you receiving compensation or walking away with nothing.
They’ll be able to discuss the strengths and weaknesses of your case. They’ll advise you on the best course of action moving forward. This could include seeking an out of court settlement to avoid additional high costs.
The Road to Compensation
Seeking justice for a wrong you believe has been committed is a normal reaction. Sometimes emotions can be very raw so it’s important to seek advice before embarking on a malpractice lawsuit.
Continue reading our blog to find out ten things you need to know about malpractice cases.