When can you make a claim? How do you prove malpractice? If you’re not a doctor yourself, these can be tricky questions to answer.
Why do you go to the doctor? For most people, a visit to a doctor is for 1 of 2 reasons—either you are taking charge of your health and doing “routine maintenance” to keep yourself healthy, or you’re there because you are experiencing symptoms or have an ongoing condition that requires treatment.
Either way, we tend to trust the advice our doctors provide and the treatments they offer. You can be an informed patient, but most physicians advise against using “Doctor Google” to self-diagnose or treat ailments. Our health care providers spend many years in school (and afterward) learning about how our bodies work and how to heal them, which is why we usually put faith in their knowledge and expertise.
But even the best doctors are human and make mistakes. A mistake could be a poor judgment call, a surgical error, a medication dosing problem or even the failure to diagnose an illness based on observable symptoms.
If your medical provider made a mistake that resulted in additional, worsening, or new illness or injury, you might be a victim of medical malpractice.
What is medical malpractice?
Medical malpractice is when a medical professional fails to provide treatment according to the appropriate standard of care.
It’s important to note that the “appropriate standard of care” is based on the community where the treatment was provided. In other words, a physician is expected to provide treatment based on the standards and resources that a physician in the same community would use. While everyone deserves top-notch medical care, there are some areas where the standard of care is different from others. For example, a large urban multispecialty health care center might treat patients using different diagnostics than a rural hospital that doesn’t have access to the same technologies and professional expertise.
Alabama medical malpractice laws
Alabama state law does not require a plaintiff to submit proof of negligence at the beginning of a case before it can proceed, as other states do.
However, it does subscribe to a contributory negligence rule that prevents a plaintiff from receiving any damages if they did anything negligent that could have contributed to their injury or illness. For instance, if you were the victim of medical malpractice and the doctor’s legal team can point to instances where you did not follow the doctor’s instructions during your treatment, that could be viewed as contributing to your own injury, and you might not be able to receive any compensation for the malpractice in that situation.
On the other hand, some states limit the amount of damages that can be awarded in a medical malpractice case, but Alabama does not.
What’s the statute of limitations on an Alabama medical malpractice lawsuit?
You must file a lawsuit for Alabama medical malpractice within 2 years from the date of the malpractice. One exception is that the deadline is extended if the injured person couldn’t reasonably have known that malpractice had occurred during that time. If that happens, Alabama follows the discovery rule, which stipulates that the lawsuit may be filed within 6 months of the date of discovery of the malpractice or the discovery of facts that would reasonably lead to that discovery, whichever is earlier.
Notwithstanding the discovery rule, Alabama also has a statute of repose. This statute imposes an absolute deadline for filing medical malpractice claims, requiring the victim to file no later than 4 years after the date of the malpractice, regardless of when it was discovered. The only exception applies to minors. If a child under the age of 4 is a victim of medical malpractice, including cases that may necessitate the expertise of a newborn injury attorney, the parent has until the child’s 8th birthday to file a lawsuit.
Alabama Medical Liability Act
The Alabama Medical Liability Act (AMLA) deals with venue, burden of proof, expert witness qualifications and discovery methods.
In addition to the statutes of limitations and shared fault restrictions, the AMLA governs the types of damages a plaintiff may receive in a medical malpractice case.
Types of damage awards in an Alabama medical malpractice case
• Compensatory damages. In personal injury law, the concept is known as making a plaintiff “whole”—or restoring them to the financial position they would be in if the injury hadn’t happened. In the context of medical malpractice, this might include medical services required to diagnose or treat an injury or illness caused by the doctor’s negligence, funeral and burial costs, lost wages and earning capacity, and other quantifiable costs associated with the injury. These are referred to as special damages.
Compensatory damages also include general damages. This might be pain and suffering, mental anguish, compensation for impairment and disfigurement, and related costs.
• Punitive damages. This is a way the legal system punishes a defendant in order to deter future similar behavior, either by the same defendant or others (that is, as a cautionary tale). Punitive damages are in addition to compensatory damages and could be awarded if the defendant consciously or deliberately oppressed or defrauded the victim or acted with wantonness or malice. A punitive damage award for medical malpractice in Alabama is capped at either 3 times the amount of compensatory damages or $1,500,000, whichever is greater.
Expert witness testimony
In a medical malpractice case, the plaintiff will need to prove that:
- The defendant breached the standard of care through an act or omission, and
- The breach caused their illness or injury.
Alabama requires expert testimony to prove these elements of medical malpractice unless the defendant’s lack of care or skill is so obvious that a non-medical person could reasonably understand it.
An expert is a similarly situated medical provider, meaning they are licensed by the regulatory board and trained and certified in the same specialty. Additionally, they must have practiced in that specialty during the year preceding the alleged malpractice.
Common types of medical malpractice cases
Now that you understand how Alabama law treats medical malpractice, how do you know if you have a case?
Medical malpractice might have occurred if your provider:
- Failed to diagnose your condition or gave a wrong diagnosis
- Misread or disregarded important lab results
- Conducted an unnecessary surgery
- Made a surgical error or performed on the wrong surgery site
- Gave improper medication or dosage
- Gave poor follow-up care
- Discharged you prematurely
Elements of a medical malpractice claim
Medical malpractice falls within the category of personal injury law. At the heart of a personal injury lawsuit are the following:
- Duty. Your doctor has a duty to act as any doctor would in the same situation by following standard medical guidelines accepted in the field and specialty.
- Breach. A breach occurs if the doctor does not uphold their duty of care to a plaintiff.
- Causation. You can file a claim for medical malpractice if the mistake or action resulted in an injury or illness that you wouldn’t have had if the mistake hadn’t been made. In other words, your injury must have been caused by a breach of duty of care.
- Damages. In any personal injury lawsuit, you must be able to prove that the injury cost you money.
Medical malpractice lawsuits are not limited to physicians. Other health care professionals and entities could be sued, including:
- Nurses
- Anesthesiologists
- Health care facilities and hospitals
- Pharmaceutical and medical device companies
What to do if you believe you’re a victim of Alabama medical malpractice
If you believe that you’re experiencing an illness or injury because of medical treatment you received (or didn’t receive, if there was a failure to diagnose something), it’s important to proceed carefully in order to maintain your legal claim.
First, seek a diagnosis from a doctor who is different from the one who caused the injury. It should be someone in your community who is similarly trained (that is, the same medical specialty) who can diagnose the symptoms you’re having and link them to the alleged malpractice. You want them to document what your symptoms are and what allegedly caused them.
The most difficult part of a medical malpractice claim could be linking the symptoms of the injury to the malpractice. If the symptoms could have been caused by something else, or if they could have developed if the malpractice hadn’t happened, you likely won’t have a successful case.
Example:
Patient Polly was suffering from tendonitis. Her doctor prescribed an anti-inflammatory medication and physical therapy. A few months later, she returned to the doctor for a follow-up. As the doctor was reviewing Polly’s chart, they noticed that the dosage of the anti-inflammatory medication that had been prescribed was too high. They quickly changed her prescription to a lower dosage.
After that, Polly developed debilitating migraine headaches. She visited a different doctor for the headaches. She said that she believed her headaches were caused by the 1st doctor’s too-high dosing of the anti-inflammatory medication and that she was a victim of medical malpractice.
Even though the doctor incorrectly dosed the medication for Polly’s tendinitis, taking a too-high dose of that particular anti-inflammatory medication does not cause migraines. Polly was not experiencing any other effects or symptoms from the too-high dose of medication. Therefore, she did not have a lawsuit even though the doctor had made an error.
On the other hand, IF it was known that a too-high dose of that medication could cause migraine headaches and if there was no other reasonable explanation for why Polly would have suddenly become afflicted with the headaches, then she might have a case for medical malpractice.
If you have reason to believe that you suffered an illness or injury as a result of malpractice and another doctor confirms that belief, you can file a lawsuit.
If you begin to experience symptoms of an illness or injury and believe those symptoms may be related to possible malpractice, it’s important to keep a journal or record of your symptoms and how they’re affecting you.
For instance, you should maintain a daily diary where you record whether you feel good or if you’re experiencing symptoms. Describe the symptoms, how long they last, what you do to relieve them and how they affect your daily functioning. You should also keep track of any expenses related to the illness or injury, such as doctor appointments, medical treatments, medication and lost wages due to an inability to work.
Post-Accident Journal Form
Sample accident journal/diary to help you document the effect on your daily life
Download in PDF format
Damages/Expenses Worksheet
Damages worksheet to track expenses for your injury claim (medical treatment, property damage, lost wages, prescriptions)
Download in PDF format
You should also call an Alabama medical malpractice lawyer for guidance. Your lawyer can offer advice about filing a lawsuit and consult experts who can assess the merits of your claim.
The Enjuris law firm directory is a great way to find an Alabama lawyer who can help you recover compensation for a medical malpractice claim.
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What does an injury lawyer do?
A personal injury lawyer helps individuals who have sustained injuries in accidents to recover financial compensation. These funds are often needed to pay for medical treatment, make up for lost wages and provide compensation for injuries suffered. Sometimes a case that seems simple at first may become more complicated. In these cases, consider hiring an experienced personal injury lawyer. Read more
