According to Hopkins Medicine, medical errors kill roughly 250,000 individuals in a given year. In fact, medical malpractice is the third leading cause of death in the United States, directly following cancer and heart disease.
Medical malpractice is defined as any act or omission by a doctor throughout the treatment of a patient that differs from accepted norms of practice (also referred to as negligence) in the medical community and causes an injury to the patient. The negligence could be a result of a mistake during medical diagnosis, treatment, and/or aftercare. Medical malpractice is a specific kind of tort law that handles professional negligence and is a common kind of personal injury lawsuit.
In order to prove that medical malpractice occurred, you need to be able to prove the following things:
You must be able to prove that you, the victim, had a doctor-patient relationship with the doctor that you are taking legal action against. This means that you hired the medical professional, and the medical professional agreed to be hired by you. For example, you cannot take legal action against a doctor that you overheard providing medical advice. If a medical professional started seeing and treating you, it should be simple to establish that a doctor-patient relationship existed. Questions typically arise on whether or not the doctor-patient relationship existed when a medical professional did not personally treat you.
In some cases, individuals are merely unhappy with their treatment or results; however, that does not imply a doctor is responsible for medical malpractice. The acting medical professional must have been negligent in relation to your diagnosis or treatment. In order to sue for medical malpractice, you must prove that the doctor caused you harm in a way that a capable doctor would have under the same circumstances. A medical professional’s care does not have to be the best possible; however, it does have to be “reasonably skillful and careful.” Whether a medical professional was reasonably skillful and careful is usually at the core of any medical malpractice lawsuit. Most U.S. states require that the patient provide a medical expert to speak on the appropriate medical standard of care and reveal exactly how the doctor strayed from that standard.
A common concern is whether or not what the medical professional did, negligent or not, directly caused the injury. This is because numerous malpractice cases involve patients that were sick or injured before a physician’s care. For example, if a patient dies after treatment for lung cancer, and the medical professional acted negligently, it might be hard to prove that the medical professional’s negligence was the cause of death rather than cancer itself. A patient must prove that it is “more likely than not” that the doctor’s incompetence was the cause of the injury. It is usually required of a patient to have a medical expert testify that the physician’s negligence was the cause of the injury.
Even when it is clear that the doctor performed below the expected standard of care, you cannot sue for malpractice if you have no injuries. Below are some examples of the types of harm a patient can sue for:
Out of all of the medical errors that are made each year, the most common preventable types of medical mistakes include:
In the United States, medical malpractice law has generally been categorized under the authority of the individual states (not the federal government) compared to many other countries. In order to win any monetary compensation for an injury related to medical negligence, the patient must be able to prove that the substandard medical care was the basis of their injury.
The claim of medical negligence must be filed within a certain period of time, known as the “statute of limitations.” This time frame differs depending on the state the claim is filed in. Medical malpractice statutes of limitations can be complicated because they usually contain more than one deadline.
For example, in the state of Alabama, the first part of the statute of limitations is referred to as the standard deadline, which gives a victim of medical malpractice a certain number of years to file a claim after the supposed malpractice occurred. The standard deadline for Alabama is two years, indicating that if you do not file a medical malpractice claim within two years of your malpractice incident, you lose all of your rights to sue for medical malpractice.
Nevertheless, there are exceptions to this rule made by other parts of the statute of limitations. The second part of the statute of limitations is called the discovery rule. This rule is an exception to the standard deadline when the victim could not have sensibly learned that they had a medical malpractice case. The discovery rule in the state of Alabama states, “if the injured person did not discover the medical malpractice claim and could not reasonably have discovered the claim within the two-year statute of limitations, the claim may be commenced within six months from the date of discovery of the malpractice or the date of discovery of facts which would have lead to such discovery. Whichever is earlier.”
The third part of the statute of limitations is the deadline for minors or their parents/guardians to file a medical malpractice claim. In Alabama, there is a designated deadline only for minor children under four years old at the time of the wrongdoing. If a victim of malpractice is under the age of four, the child has until his or her eighth birthday to file a claim.
The fourth part of the statute of limitations is the statute of repose. Keep in mind that not all states have this part in a medical malpractice case, and not all states call them a statute of repose. A statute of repose implements an absolute deadline no matter when the victim learns of the malpractice. In Alabama, the statute of repose states that a medical malpractice claim cannot begin more than four years after the alleged act of malpractice, except for minor children who are subject to the deadline for minors explained above.
Alabama has other exceptions to the statute of limitations of a medical malpractice case. For example, the statute of limitations can be extended if the defendant fraudulently concealed the malpractice, if the defendant fled the state after committing the wrongdoing, or if the victim of malpractice was mentally ill.
Once a patient proves that negligence was the reason for their injuries, the court will calculate the monetary damages that will be paid in compensation. The damages that will be considered will be both economic and non-economic. Economic damages are lost income, medical bills, and the cost of future medical care, and non-economic damages are usually pain and suffering. Medical professionals who practice in the United States typically carry medical malpractice insurance to protect themselves in instances that medical negligence or unintentional injury occurs. In some cases, this type of insurance is mandatory as a condition of hospital privileges or employment with a medical group.
As stated above, the measure of whether or not a medical professional acted negligently, or failed to provide proper care altogether, depends on whether the victim would have received the same quality of care from another doctor under the same circumstances. Most medical professionals aim to operate at the highest standard of care for each patient they see, but there are times when things can go seriously wrong.
Below you will find how to file a medical malpractice claim and things to keep in mind when filing.
Even though particular injuries can be handled without professional assistance, a medical malpractice claim is certainly not one of them.
To start, you must file your case within the statute of limitations. If you do not do so by the time the deadline passes, sadly, you will never be able to file a claim for this injury again. Even though there are exceptions to the statute of limitations in most states, it is better to file your claim as soon as possible, so you do not miss your state’s deadline. If you do not know what your state’s statute of limitations is, an experienced medical malpractice attorney will be familiar with that deadline and will be able to do everything possible to act in agreement with it.
Second, and depending on what state your case is going to be filed in, compliance with pre-lawsuit requirements such as medical expert testimonies, review boards, and notices of intent to file a claim will determine whether or not your case will be allowed to start. An attorney that regularly handles medical malpractice cases will have the experience, resources, and procedural knowledge to ensure that your claim has the best possible chance of success.
Medical records are typically the best evidence in any medical malpractice case. Because of privacy laws that are set in place, you must sign a release form allowing your attorneys, along with the defendant’s attorneys) to obtain copies of any of your medical records needs for your case. It is a good idea to get a head start on this process by requesting copies of your medical records as soon as you think that you may have a medical malpractice case.
The sooner you give your medical records to your attorney, the sooner your attorney will be able to begin examining your case in-depth. This will also allow them to request medical opinions from medical professionals, including doctors, nurses, and other professionals that could be used as a medical expert witness on your case. It is possible that after a thorough review of your medical records, an attorney will advise you not to file a lawsuit or suggest that your damages were not, in fact, the result of a medical professional’s negligence. The sooner medical and legal professionals can review your records, the sooner you will be able to determine if your case has a chance of success.
Whether formally or informally, it is often helpful to give notice of a potential lawsuit to doctors and their insurance providers. In certain states, alerting healthcare professionals and their insurance companies is necessary when taking the matter to court. However, this type of notice will prompt insurance coverage and internal review in every case, so you may find that you can reach an agreeable settlement before filing a lawsuit. The assistance of an experienced attorney is crucial as they will act as the liaison between you and the claims professionals who may decide to take advantage of you in your case. Even though this is a mere negotiating tactic, it is nonetheless very unpleasant. When it comes down to it, having an experienced attorney provide the appropriate parties with a notice of intent to file a lawsuit is the best course of action.
As mentioned above, most states have a systemized pre-filing requirement for medical malpractice cases. Pre-suit requirements were made to streamline litigation, encourage settlement, and help weed out any insignificant claims. Most pre-suit guidelines require some sort of expert support, either in the form of an “affidavit of merit” that speaks on the appropriate medical standard of care that was allegedly violated and any resulting injuries.
If you do not follow these pre-suit requirements, your case may be dismissed altogether; but you will usually get a chance to come into compliance before you lose your right to a legal remedy for good.
The final step in beginning a medical malpractice case is drafting and filing a complaint in civil court. This complaint is the formal statement of the allegations against the defendant doctors and/or medical facility. Once this complaint is filed, a lawsuit will begin. The filing of this lawsuit will start the clock on when the case will go to trial. Each state’s pre-trial policies differ; however, it usually takes between a year and a half to three years after a lawsuit is filed for a medical malpractice case to go to trial.
In most states, the victim’s lawyer is required to submit an “Offer of Proof or an Affidavit of Merit” when filing the lawsuit and before any pretrial investigation can take place. The purpose of the Offer of Proof or an Affidavit of Merit is to ensure that the medical malpractice suit is legitimate. Depending on the state’s laws you filed your case in, the attorney is required to submit a written opinion of negligence from a doctor who has reviewed the victim’s records or an affidavit from the attorney stating that the attorney talked through the case with a doctor who thinks the victim has a legitimate medical malpractice case. In some cases, states require a pre-lawsuit panel to consider the victim’s allegations before filing a lawsuit.
Once all pre-lawsuit policies are satisfied, litigation starts and the parties conduct “discovery,” a process where each party investigates the other’s legal claims and defenses. Each sends questions and document requests to the other and takes depositions of all appropriate parties and witnesses in the case, usually starting with the victim and defendant.
This process lasts a year or more, depending on the court’s deadlines, and usually requires each party to go back to court to obtain the judge’s help. It is typical for one or both parties to be unsatisfied with the other party’s response to the questions or document requests and can lead to filing a motion to compel further responses. The judge will hear each side’s argument and then make a decision. This often happens more than once during the lawsuit.
When the discovery period comes to an end, the attorneys will start talking about the settlement. Sometimes attorneys can settle a case between themselves, but in other cases, it will go to mediation, where clients and attorneys go in front of an impartial mediator to settle the case.
Usually, mediation works, but when both sides are too far apart, the case will be scheduled for trial. Keep in mind that just because a lawsuit is scheduled for trial does not necessarily mean the trial will happen on that specified date. Many trials are delayed and rescheduled due to the court’s schedule and delays in the case’s progress.