The United States has some of the highest standards in medical treatment.
Millions of people throughout the country receive medical treatment without any incident, but that doesn't stop thousands of people being injured or dying every year while visiting a healthcare professional.
Thousands of Americans suffer from medical malpractice injuries annually, but fewer than 15% of personal injury cases filed each year involve medical malpractice.
If you think medical malpractice might have happened to you, it's critical to learn about your legal rights so that your attorney can help you to obtain appropriate compensation.
If your medical professional committed one of the acts below while you were in their care, you could have legal options:
A claim for medical malpractice arises when a patient is harmed by a medical professional who fails to perform medical duties according to the appropriate standard of care. In order for a victim to recover compensation for the injuries that he has suffered because of medical malpractice, the plaintiff has the burden of establishing certain legal elements. These must be proven by a preponderance of the evidence, meaning that the evidence weighs more in favor of the plaintiff than the defendant, or to put it simply, "more likely than not."
To give you some context, a criminal trial requires that a defendant be proven guilty "beyond a reasonable doubt."
As in any personal injury case, negligence must be proven in court for the victim to receive compensation.
The four elements of negligence that must be proven here are below:
For this example, let's assume that you have taken your daughter to the doctor with a deep cut on her arm, and the doctor accidentally used contaminated tools to stitch the wound. Her arm then becomes infected and she requires emergency medical care.
For the medical professional to be found negligent, your attorney must show that her conduct fell below the "accepted standard" of medical care. To establish that accepted standard in court, usually you must have an expert medical witness testify about the standard of care that was violated in your case.
Most health care providers try to provide a high standard of care, but bad things do happen. If you had a medical experience that harmed you, you could be entitled to compensation in a medical malpractice lawsuit. The basic steps to follow to file such a case are:
As you can guess, coordinating a medical malpractice lawsuit is difficult and very stressful. The process can take a long time.
An experienced medical malpractice attorney is extremely beneficial; she can quickly gauge if you have a strong malpractice case, and can help you to get a fair settlement or proceed with a lawsuit.
Damages that you could be entitled to in a medical malpractice lawsuit are:
Medical malpractice legal actions are not limited to doctors. Other health care professionals and entities can be sued as well, such as:
Virtually all hospitals are corporations, and they can be held liable for negligence. Also, they may be held vicariously liable for their employees' negligence. The medical staff at a hospital has doctors, nurses, physician's assistants, nurse practitioners and many others.
When the hospital hires, it must ensure that all applicants have appropriate education, licensing and training. If they fail to do so, the hospital may be held liable under different theories, such as respondeat superior (such as the hospital being responsible for a nurse's misconduct) and the corporate negligence doctrine (such as the hospital being responsible for a private physician's misconduct).
Hospitals also must have enough RNs working on every shift so that quality care can be provided to patients.
If the hospital does not do so, it can be sued for patient injuries because of a shortage of nurses.
Another common liability area is when employees fail to follow the orders of the doctor for a patient. On the other hand, if the employee clearly knows that the superior's orders are contraindicated and follows them anyway despite knowing better, that could also lead to liability.
Many states have implemented damage caps regarding medical malpractice cases. The states that have these laws are often concerned with the increasing cost of insurance and place a ceiling on the amount of damages that a victim can recover.
Sometimes the cap only applies to non-economic damages such as pain and suffering and mental distress while not applying to economic damages that can be easier to calculate based on objective evidence, such as medical expenses and lost wages.
Some states have specific requirements regarding medical malpractice claims that differ from pursuing other personal injury cases.
For example, the victim may be required to submit a claim to a panel that determines if the case gives rise to a medical malpractice claim. The court may dismiss the case if the panel finds that no such claim has arisen. Other states first require a certificate from a medical expert that establishes the basis of the claim.
Medical malpractice cases often have a very tight statute of limitations that serves as a timeline for when a case can be filed. If the lawsuit is not brought before this time, the claim can be barred and the victim can be prohibited from recovering.
In many states, this time limit is three years. Some states have even shorter timelines.
A major point of contention in different states is when this time limit starts to tick with some states starting on the date of the incident while in other states the time limit starts when the error was discovered.
Medical malpractice cases are some of the most expensive types of cases to litigate. This is because it is often very expensive to hire medical experts and conduct investigation into these cases. Additionally, discovery can be exhaustive and may require additional payment of expenses.
Many personal injury lawyers take medical malpractice cases based on a contingency fee in which he does not charge attorney fees upfront and only receives payment if the claim results in a settlement or verdict.
However, it is important that individuals have a firm understanding of how expenses like discovery expenses, court costs and expert fees will be allocated. Generally the agreement is "contingency plus fees," in which fees are paid back out of the settlement and then it is distributed among the parties.
It is important to do plenty of research and choose a medical malpractice lawyer with many years of experience in medical negligence legal work.
Medical malpractice law is a very specialized area that requires an attorney with a lot of experience. This is because there is plenty of overlap between complicated medical and legal matters. There also are unique procedural matters that come up in medical malpractice cases.
Most attorneys in medical malpractice law practice one of two kinds:
Read more and see where to find a lawyer in How to Find the Right Medical Malpractice Attorney for Your Case.
View Full Size Use this graphic on your site
We encourage people to use our infographics, with proper attribution. Just copy and paste the code below to use this infographic on your site. If you need help, let us know!
<a href="https://www.enjuris.com/medical-malpractice/" target="blank"><img src="https://www.enjuris.com/infographics/medical-malpractice-death-statistics.jpg" alt="Medical Malpractice Deaths - 17 Years of Statistics" title="Medical Malpractice Deaths - 17 Years of Statistics" style="width: 100%; max-width: 1100px; display: block; margin: 15px auto;" /></a>
Selecting the right attorney can often make or break a medical malpractice case; these cases are intensely complicated, and doctors are always represented by tough, aggressive insurance companies and attorneys because they are generally on a hospital's payroll. Even if they're not, their insurance company will put together a terrifying legal team. Read more