Medical Error & Malpractice Claim: Requirements And Common Types
It is common knowledge that medical errors are one of the significant causes of death in hospitals. But a medical error cannot be called malpractice unless it has been shown that there was fault or deviation from accepted standards of care by a doctor, which led to an injury.
It is not enough for someone to have suffered some harm because they were treated by a doctor or in a hospital. The damage must have been caused by negligent or substandard treatment.
How to find an attorney for a medical malpractice claim
There are many ways to find an attorney such as a Medical Malpractice Lawyer in Hollywood, FL, and the best way is probably through contacting your state or local bar association (usually listed in telephone directories).
You can also look for listings of lawyers who specialize in medical negligence claims; these should be available from organizations such as the American Bar Association. Alternatively, you may wish to go online and look for a personal injury lawyer whose practice includes medical malpractice.
If you want to file a claim against your insurance company, you should seek an attorney who specializes in insurance claims as well as medical negligence claims.
What are the various types of Medical malpractices?
A doctor may be liable for medical malpractice (negligent conduct) if:
– He failed to provide the patient with proper and necessary diagnosis, treatment, or prognosis;
– His carelessness resulted in an injury to the patient. It includes making a wrong diagnosis, using incorrect methods of treatment, or giving improper advice;
– The patient suffered harm because the doctor failed to treat him in a reasonable time, or the patient was harmed by receiving an incorrect treatment.
– The doctor breached his duty of confidentiality.
A hospital may be liable for medical malpractice if any one of the following conditions is met:
– There is substandard care provided by anyone working within the hospital;
– The hospital failed to provide the patient with proper and necessary diagnosis, treatment, or prognosis;
– The hospital breached its duty of confidentiality;
– The patient suffered harm because he stayed in the hospital longer than was reasonable (this can happen when a patient is transferred from one ward to another without reason);
– There is an incorrect treatment given by anyone working within the hospital;
– The hospital failed to get informed consent from the patient or his authorized representative before carrying out a particular treatment or procedure.
Many people are under the misapprehension that if their doctor was not negligent, there is no possibility of suing him for failure to diagnose an illness properly. It is not the case. Many people are wrongly diagnosed. If the diagnosis was wrong and you were harmed by receiving incorrect treatment, you may have a malpractice claim.
What should be done before filing for medical malpractice?
Before filing a lawsuit, it is essential to find out which state’s laws apply because different states have different time limits in which cases must be filed. Be prepared to prove that the doctor was negligent.
When can you sue for medical malpractice?
To sue successfully, it is necessary to prove that the injury was caused by negligence on the doctor’s part — there are no damages without proof of damage. It would help if you established that the doctor was negligent and that this negligence caused your injuries.
If you suffer harm because of a medical error or substandard treatment, you may have grounds for suing for medical malpractice. For example, if an x-ray shows no sign of pneumonia, but the doctor tells you it is pneumonia and treats you accordingly, you may have a case for negligence if your condition later deteriorates to pneumonia.
Similarly, if an x-ray shows no sign of arthritis, the doctor treats it as arthritis and gives you medication accordingly. When your x-rays are checked later, there is no sign of arthritis; again, you may be able to sue successfully for medical malpractice.
You can also sue for negligence if you know that you are not suffering from the disease (or condition) treated by the doctor, and they fail to check your history before prescribing medication.
How long do you have to file a medical malpractice claim?
There are strict time limits or statutes of limitations on filing a claim for medical malpractice. Usually, two to three years is the period allowed after the date of an incident before you are barred from bringing a case.
However, if your injuries are not discovered immediately, you may have more time. For example, if you suspect that something is wrong with your treatment, but you cannot pinpoint it, or if your doctor fails to diagnose a problem or sub-standard care for several months, you may still have time left to file your claim.
How much does it cost?
It is hard to say how much it will cost because the level of damages awarded depends on the seriousness of the injury, the cost of treatment required, your age, how much future care you are likely to need, and so on.
An experienced medical malpractice lawyer will be prepared to tell you what success is likely to mean in terms of costs and give you a rough idea of the potential total expenditure.
How to find a doctor for a medical malpractice claim
The American Medical Association publishes “Physician Select,” a book containing every licensed physician’s names, specialties, and geographic location in the United States.
If you want to check on the qualifications of any doctor, your best bet is probably to contact your state medical society; these societies are usually listed in phone directories (look under “State Medical Society”).
What are the damages in medical malpractice claims?
Damages depend on what has happened to you, how serious it is, and whether future problems may arise from your injuries. They also depend upon what your prognosis is likely to be for the future. The most common kinds of damages are outlined below.
It is perhaps the easiest element for a plaintiff to establish, but it can also be one of the hardest for defendants to disprove. It may include emotional shock, anxiety, humiliation, and depression that you suffer from your injuries.
It includes the pain and suffering associated with your injury. It includes what it did to your lifestyle (the physical or mental limitations you must live with), any emotional distress that led to marital problems or divorce, the effects on your general health (for example, depression), and even post-traumatic stress disorder (haunted by memories of your injury).
They are the easiest part of your claim for defendants to contest, but they can be devastating if you don’t have medical insurance. The difference between what your insurer will pay and what the doctor charges often amount to tens or hundreds of thousands of dollars.
This claim is easy to establish, but it can be challenging for defendants to disprove. Lost earnings may also be offset by what you earn in the future (for example, if you cannot work anymore). Future loss of profits will depend upon your age, general health, and psychological well-being, your future earning capacity, and how long it will take you to recover from the accident.
This claim encompasses benefits that are lost because of the injuries you have suffered. Examples include any employer-provided health insurance or disability benefits that are no longer available to you.
These damages are complicated to prove, but they are designed to punish defendants who have acted outrageously or in bad faith.
COST OF MEDICAL EXPENSES
This claim includes the cost of all medical treatment related to your injuries, including future care. Also included are any medicines or equipment you require for the rest of your life, such as a wheelchair.
COST OF SUPPORT
This claim includes the cost of housing, food, and clothing for you and your family until you have recovered from the injuries.
LOSS OF CONSORTIUM
This claim is available to a spouse or partner who suffers loss because of an injury to a loved one. It includes loss of consortium (such as loss of affection, comfort, and companionship).
DECEPTIVE TRADE PRACTICES
This claim is available in some states for losses incurred because of medical malpractice. It covers any financial damages that result from a defendant’s deceptive trade practices (such as fraud, false advertising, or breach of warranty).
What are the Defenses To Medical Malpractice Claims?
There are several defenses available to medical malpractice lawsuits. They include:
If you had a condition (like high blood pressure) before the doctor treated you, the doctor may argue that they could not have prevented your present situation. That’s because the doctor might not be held responsible for a pre-existing condition.
If your claim is limited to money damages and there is no personal liability on the part of any individual (including assistants and nurses), the doctor’s insurance company will not be responsible for paying your damages.
A settlement or contract that regulates a doctor’s professional conduct may have a provision to reduce your damage award if you don’t follow its regulations. In other words, if you violate the agreement, it may reduce the award against the doctor.
You may argue that your damages are inadequate or too remote to warrant recovery. For example, if you suffered $100,000 in damages, but there’s no way to prove it was due to malpractice, a court might determine that you’re only entitled to recover $10,000.
If you fail to file a timely claim with the court or against the doctor’s insurance company, you may forfeit your right to recover damages entirely. The statute of limitations starts when your injury is discovered and ends three years later (or longer if it depends on another person who has a different time limit).
Talk to a personal injury attorney for more information about filing a medical malpractice claim.
What are the things that must be proven to win a medical malpractice suit?
To successfully prove a medical malpractice case, you must show that:
(1) The defendant doctors owed you a duty (to practice medicine ordinarily and prudently);
(2) They breached that duty (by practicing below the standard of care expected for other members of your profession under similar circumstances);
(3) You sustained damages (such as pain and suffering, loss of wages or earning capacity, medical costs, etc.);
(4) The defendant doctors’ breach was the proximate cause of your injuries; and
(5) There is a reasonable degree of certainty in proving all facts necessary to establish each element of your claim.
What are the steps to file a medical malpractice lawsuit?
To successfully file a medical malpractice lawsuit, you must complete the following steps:
(1) Contact a qualified attorney;
(2) Give your attorney all of the facts about your case and cooperate with them fully;
(3) Investigate all possible defenses that might be raised against your claim; and
(4) Prepare your case by gathering evidence and witnesses.
You could win money damages in a medical malpractice suit only if the defendants were negligent, meaning they failed to meet the standard of care required for other doctors under similar circumstances.
You will have to prove negligence through expert testimony from a doctor who has had experience in this field. The expert witness will describe how your doctors (or their assistants) failed to act reasonably under the circumstances.
What are some common med-mal defense arguments?
Many legal defenses can be asserted by doctors in medical malpractice lawsuits, including:
- Contributory negligence;
- Assumption of risk;
- Qualified privilege;
- Comparative negligence;
- Failure to prove causation, or that the plaintiff’s injuries are severe enough for compensation;
- The statute of limitations has expired, preventing you from filing a lawsuit in court; and
- Your damages are insufficient to warrant recovery.
Can anyone file a medical malpractice lawsuit even if he/she wasn’t injured?
In some states, you could file a medical malpractice lawsuit if someone in your immediate family were injured or died from the same defendant doctors’ carelessness. In other words, “bystander” lawsuits are allowed in these jurisdictions, allowing the non-injured party to recover compensation for their losses, including pain and suffering.
How long does a medical malpractice lawsuit take?
A medical malpractice lawsuit usually takes one to two years, depending on how busy the courts are and whether the defense delays its responses. Many personal injury attorneys take cases on a contingency fee basis, meaning their fees will be based upon or related to your final settlement or award.