People in the U.S. place enormous trust in the hands of physicians and health care systems. Unfortunately, studies have shown that errors occurring in medical settings are among the leading causes of death.
When an individual becomes injured due to a medical error, it can give rise to a medical malpractice claim. The injured patient can seek compensation for the expenses and impacts of their injury through settlements with the health care provider’s medical malpractice insurance carrier or the civil court system.
Medical malpractice is a complex area of the law, prone to creating questions and confusion. An experienced medical malpractice lawyer
can provide answers to your questions, help you understand the claims process, and give you information on the services we can provide to assist you with your claim.
What Is Medical Malpractice?
According to a study from Johns Hopkins University School of Medicine, nearly 10 percent
of the deaths occurring in hospitals in the U.S. result from medical error. However, not all of these errors would necessarily result in a medical malpractice claim.
For a medical error to constitute medical malpractice:
- The error resulted in injury or wrongful death.
- The error occurred due to a deviation from the standard of care. *
*Standard of care refers to the actions a reasonable and similarly positioned health care provider would have provided in the same situation.
Some of the common errors that lead to claims include:
- Diagnosis errors, such as delayed diagnosis, missed diagnosis, or misdiagnosis.
- Prescription errors, such as giving the patient the wrong medication or the wrong dosage.
- Anesthesia errors, such as administering too much or too little anesthesia during a surgical procedure.
- Surgical errors, such as unnecessary surgery, failing to provide surgery when medically indicated, wrong-site, or even wrong patient surgery.
- Birth injuries due to a medical error, such as failing to provide a needed Cesarean section or failing to diagnose a medical condition in the mother or infant that impacted the delivery process or the safety of the pregnancy.
- Failing to obtain adequate patient history or testing needed to properly diagnose and safely treat a medical condition.
- Failing to provide information to the patient about the known risks of a treatment before obtaining their consent to the treatment method.
Doctors, hospitals, dental offices, medical clinics, pharmacies, surgical centers, surgeons, and others involved in delivering healthcare services can all face medical malpractice claims.
Errors made by medical staff such as nurses or nurses’ aids generally fall under the malpractice policy of the institution where they work. Doctors, however, are sometimes independent contractors with privileges to practice as medical facilities and carry different medical malpractice policies.
The Responsibilities of a Medical Malpractice Lawyer
Medical malpractice claims are complicated. They require extensive knowledge of the legal process for seeking compensation from a liable party and knowledge of the medical field, medical treatments, and the type of compensation needed after an injury has occurred due to a medical error. Personal injury lawyers experienced in medical malpractice claims can assist individuals seeking compensation for injuries that occurred in the hands of a medical professional.
Here is a look at some of the tasks
a medical malpractice lawyer and their legal team can perform to assist you in seeking compensation for the expenses and impacts you incurred due to a medical error.
Determining Liability and Associated Insurance Resources
As noted, there can be different sources of liability in a medical malpractice claim and even multiple sources of liability. The doctor can be legally responsible for the errors they commit and even errors that hospital staff committed under their instruction or supervision.
Additionally, the hospital can be liable for errors resulting from facility issues, such as an injury resulting from poorly maintained instruments or a failure to prevent hospital-acquired infections. Finally, the facility may be responsible for the errors of their employees.
Your medical malpractice attorney will carefully evaluate the details of your case to determine liability and the presence of medical malpractice insurance policies that may compensate you.
Establishing the Value of Your Claim
Medical malpractice claimants can seek compensation for expenses incurred due to the injury.
Commonly claimed expenses include:
- The cost of medical treatment to correct the condition or repair the injury caused by the medical error
- The cost to treat future complications that are likely to arise due to the injury
- Wage losses resulting from the injury
- Loss of future earning capacity if the medical injury results in permanent injury or disfigurement
- The physical and emotional pain and suffering the client endured because of the error.
Some states limit the compensation you can seek for non-economic damages (pain and suffering and emotional distress). Known as statutory caps, your lawyer can inform you if non-economic damage caps apply to your claim.
Factors that affect the value of your claim include:
- The amount of insurance coverage the at-fault party has.
- The severity of your injury.
- The likelihood of being able to return to work and earn an income.
- The income you earned before the accident.
- The clarity of liability in the claim.
Working with Medical Professionals and Other Experts
In some states, if you file a medical malpractice claim in court in the form of a medical malpractice lawsuit, your attorney must include an Affidavit of Merit. This affidavit requires your attorney to review the details of your claim with a medical professional who practices or teaches the same area of medicine as pertains to your case and to testify that the medical professional found that the claim of malpractice has merit.
Even if you are not required to submit an affidavit of merit, your attorney and their legal team will communicate with medical professionals about the case. You must provide expert testimony about your injuries, the error that occurred, and the expected standard of care to elevate the evidence of your case.
Evidence is a crucial part of a medical malpractice claim.
Your lawyer will seek to prepare:
- Witness testimony from hospital staff members who were present when the error occurred.
- Medical records from both the treatment you received when the error occurred and treatment received to address the error.
- Testimony regarding your prognosis after the error, including the likelihood of permanent deficits that will prevent you from earning an income.
- Hospital policies, procedures, and training manuals that can show that the treatment you received deviated from the facility’s established standard of care.
- The provider’s history of performance, such as proof of any disciplinary actions or previous claims that would indicate a history of carelessness.
Negotiating a Settlement and Managing Communication With the Insurance Provider
It is difficult to prove medical malpractice claims, but it is not impossible. Many victims don’t even know that they can—and should—seek compensation via a medical malpractice claim after experiencing an injury at the hands of a healthcare provider. Most health care provider errors that result in injury do not result in legal action.
In cases that do result in legal action, only 7 percent will go to trial
while the rest find a resolution outside of the courtroom. Settlement is a common method of resolving medical malpractice claims, and the settlement negotiation process generally begins when your attorney submits the claim in the form of a demand package to the at-fault party’s insurance provider. The package includes details about the error and the impacts you incurred, documentation of your expenses, and a demand for the overall value of the claim.
If the medical malpractice insurance provider does not opt to pay the claim outright or deny the claim and provide a reason for the denial, they can offer to settle the claim for less compensation than is requested. Your attorney can negotiate to increase this offer to a compensatory amount that you will agree to accept.
In addition to settlement negotiations, your attorney will manage all communication with the insurance provider on your behalf to protect your claim from well-known insurance tactics used to avoid making high payouts against their insured.
Filing Your Claim in Court
Medical malpractice claims have a statute of limitations, or deadline, by which you must file your claim. There are many court formalities involved in filing legal claims, and your attorney and their legal team are responsible for meeting the legal requirements for your claim.
One common requirement for medical malpractice claims in many states is that, before the claim is filed in court, the provider who is subject to the claim must be notified of the issue and granted time to further investigate the claim. Once you file the claim, the case moves to the discovery process where your attorney can depose witnesses out-of-court to gather additional evidence to bolster your claim.
The settlement negotiation process can continue even after you file your claim in court. If you don’t resolve your claim before the trial, your attorney may provide litigation services, including the delivery of opening and closing arguments, presentation of evidence, and examination of witnesses.
Simultaneously, they can also entertain settlement offers from the defendant. You may decide on any settlement offer as long as the court has not yet decided on the matter.
Collect Your Settlement or Award
Medical malpractice attorneys generally work on a contingent fee basis
. This means that you sign a contract with the attorney that allows you to withhold payment for their services until there is a positive outcome to your claim. Once a settlement or award resolves the case, your attorney receives a percentage of the compensation, as outlined in the agreement.
After a settlement agreement or a court decides the amount of compensation, the medical malpractice insurance provider will process the payment and send it to your attorney. From there, the attorney will deduct their payment and any expenses they are responsible for covering according to your contingent fee agreement and then forward the remainder of the compensation to you.