1: Understand That Medical Malpractice is A Serious Undertaking
Alleging medical malpractice or medication errors is a serious undertaking. It challenges the reputation and professional ability of some of society’s most respected members – doctors, nurses and hospital staff. This means that filing a medical malpractice lawsuit must involve a considerable amount of sound reasoning and preparation.
Most will associate medical malpractice suits with high dollar range cases that allow plaintiffs to benefit enormously, but it’s important to keep in mind that a medical malpractice is not a get rich quick scheme. Unless your position is valid and well proven, the chances of profiting from your losses may be less than expected.
On the other hand, if you do have a legitimate case, compensation for losses can be hefty. Damages involved in medical malpractice cases cover a wide range, including compensation for both economic losses, such as lost wages and back pay, and noneconomic losses such as pain and suffering.
2: Understand the Primary Requirements for a medical malpractice Claim
It’s important to keep in mind that not every medical error rises to the level of legal significance that qualifies as a proper medical malpractice lawsuit. Certain elements must be proven with evidence and testimony in order for a medical malpractice case to go to trial and result in successful compensation.
Before a medical malpractice suit can be filed, an attorney must attempt to ensure that it meets four basic requirements:
Duty arises when there is a practitioner-patient relationship. Practitioners have the responsibility to act within the standard of care associated with a particular field of medical practice.
Breach of Duty
When the practitioner fails to provide reasonable care according to the standard in his field or his or her actions are a departure from the standard of care, there has been a breach of the duty owed to the patient.
It must be certain that the practitioner’s breach of duty resulted in real damages to the plaintiff. Without proof of this element, a medical malpractice claim is unlikely to move forward.
Plaintiffs must also prove the breach of duty, rather than any other factors events or circumstances, caused the damages asserted. This element can be particularly tricky to prove when there is ongoing disease or infirmity which defendants can assert as the actual reason for the plaintiff’s claims.
Without sufficient evidence of these four elements, a court is likely to reject a claim of medical malpractice. Additionally, defenses are available to defendants that could also defeat a medical malpractice claim or lessen the total amount of damages recovered. Medical malpractice defenses cover a wide variety of responses including patient negligence, rejection of expert testimony, no breach of duty, and uncertain damages.
3: Understand Common medical malpractice Claim Patterns
Medical malpractice claims take on a variety of patterns, and the types of claims can vary widely. Medication errors, surgical mistakes and errors in diagnosis are three of the most common forms of medical malpractice.
Medication errors can cause severe reactions and even result in death. These include dosage errors as well as mistaken medication. Surgical mistakes include unnecessary surgeries performed without a proper assessment of a patient’s present or prior condition and injuries to body organs and structures other than those in need of surgery.
Errors in diagnosis can also lead to severe injury and death, but may be difficult to prove. That’s because a misdiagnosis does not automatically justify a medical malpractice claim. An injured individual must prove there was a doctor/patient relationship, the doctor was negligent and the negligence caused the injury sustained. According to a Harvard Medical Practice Study, 17% of patient injuries come as a result of diagnostic errors.
4: Understand Medical Malpractice Caveats
All this being said, a medical malpractice case is best understood by determining its foundational principles. Knowing the elements and common circumstances that give rise to a medical malpractice case are an important part of getting an in-depth grasp of the way that such cases unfold. Here are a few more caveats to consider.
Medical malpractice suits may not end quickly but must begin early.
On average a medical malpractice case can take anywhere from 12-18 months (quickly resolved) to 18-24 months or even longer from initial filing to settlement or trial. Even more important to remember is that most states have statutes of limitations in place for medical malpractice cases which limit the amount of time plaintiffs can file. For example, in California, plaintiffs have one year after discovering a medical error to file a medical malpractice lawsuit, or three years after the injury date, whichever comes first.
Medical malpractice laws are governed by state laws and regulations.
The above mentioned example brings up another issue related to medical malpractice lawsuits, and that is that state law rather than federal law governs these cases. This means that coverage under this area of law will vary from state to state based on the particular tort laws and state statutes legislated to cover it.
Medical malpractice require expert testimony.
Unique to medical malpractice cases is the requirement in almost every case of expert testimony. These cases involve complex technical information which can only be deciphered and explained to the jury by someone who is an expert in the field. In some courts, a medical malpractice case without expert opinion or testimony will be dismissed.
5: Understand the Importance of a Competent Medical Malpractice Attorney or Legal Team
Even a basic understanding of the ins and outs of a typical medical malpractice case can be intense. That is why the help of a competent personal injury or medical malpractice attorney is crucial. You’ll need a skilled attorney or team of attorneys with considerable experience in this area of law to achieve favorable results and get the justice you deserve.