Being a victim of medical malpractice is a scary, frustrating and life-changing experience. Unfortunately, we hear about these tragedies all too often in the news – scalpels left in a patient’s abdomen, wrong incisions, etc. – but we never think that it can happen to us. In reality, medical malpractice is the third leading cause of death in the United States and accounted for about one-sixth of all deaths in 2010. It’s important to know when you or a loved one has been a victim of medical malpractice and what steps to take to hire a qualified medical malpractice attorney and get the compensation you deserve.
What is Medical Malpractice?
Medical malpractice occurs when a doctor, or any member of a healthcare team, fails to provide reasonable care to a patient. The healthcare team can range from a pharmacist incorrectly filling your prescription to a nurse failing to disclose important medical information about you to your doctor. Reasonable care can be determined by asking, “would another reasonable health care professional in the same field have provided me with the same type of care?” If the answer is no, then you could have a medical malpractice case and should consult with a lawyer as soon as possible.
How do I prove Medical Malpractice?
Proving medical malpractice can be difficult – but with the right attorney, it can be done. The burden of proof lies on the plaintiff, meaning the person bringing the suit (typically the patient) has to prove that the healthcare official was negligent. In order to prove medical malpractice, you must prove the following elements:
- Duty: There must be a “doctor-patient relationship,” meaning you have legally hired the physician and by doing so, they have agreed to provide you with reasonable care. For example, discussing your medical issues over lunch with a friend who is a doctor does not constitute a doctor-patient relationship.
- Breach: If your physician didn’t provide you the standard of care agreed upon, they breached their duty as a physician. Because of the complexity of medical malpractice cases, it’s often necessary for an expert witness (i.e. another physician in the same practice area) to testify whether malpractice has actually occurred.
- Causation: You must have proof that your harm came from your physician’s negligence. For example, if your doctor cut off your right hand when they were supposed to cut off your left, it’s clear that your doctor’s negligence caused you harm; other times, it will be more difficult to prove harm.
- Damages: Finally, you must prove that because of the above elements, you have suffered some sort of harm. This harm can come in various forms such as physical, psychological, financial or otherwise.
What are common types of Medical Malpractice?
There are numerous types of medical malpractice cases; and while the case types vary endlessly, these are three common types of malpractice suits:
- When a physician fails to properly diagnose the patient when another similar physician would have caught and properly diagnosed them.
- Improper treatment occurs when a physician gives a patient a course of care that any competent physician would deem inappropriate.
- Failure to appropriately warn about risks associated with treatments or surgery. The physician has a responsibility to educate the patient on all potential risks so that the patient can make an informed decision about which course of action they want to take.
What types of damages can I recover?
There are three types of damages that can be recovered during a malpractice lawsuit: general damages, special damages, and punitive damages. When discussing damages, there are numerous “costs” that are negotiated but don’t have a definite price, such as, loss of earning potential, pain and suffering, and loss of enjoyment of life – these are referred to as general damages. Special damages refer to the issues that have monetary value, like lost wages and medical expenses. Finally, punitive damages result as a punishment when the physician’s actions are considered especially heinous; for example, if a surgeon intentionally performs a surgery incorrectly so that the patient will be required to have a follow up surgery and pay the surgeon’s practice for both surgeries. Punitive damages can only be considered if the physician intentionally engaged in reckless behavior.
It’s important to know that a majority of states have placed caps on the maximum amount a patient can recover for damages. In many cases, these caps are limited to only general damages, but some states have placed umbrella caps on the total amount of damages. These caps vary from state-to-state and a qualified medical malpractice attorney will understand how to make sure you get the compensation you need.
Another important detail to remember is that there is a limited amount of time you have to file your claim, known as the “statute of limitations”. These deadlines typically range from one to three years, but depend on what state you file your claim in. However, don’t think that because the malpractice occurred outside the time limit you don’t have a case; some states allow special rules if the patient didn’t know malpractice had occurred until later. It’s always best to consult with an experienced medical malpractice attorney to see if you have a claim.
What type of attorney do I need for my case?
If you or a loved one has been the victim of medical malpractice, it’s important to immediately seek a qualified personal injury attorney that can handle the complexity of a medical malpractice case. Attorneys that are both lawyers and medical doctors have a great advantage in medical malpractice cases because they understand when a physician has been negligent with your care. Medical malpractice cases often rely on expert testimony from qualified professionals and having a highly competent attorney with years of experience in the field can help you get the compensation you deserve.
Lauren is a content writer located in San Diego, CA who works with personal injury law firms throughout the country. The main goal of her writing is to educate the public on various personal injury and other civil litigation matters to help them make informed decisions when pursuing a claim.