No. While no laws require a medical malpractice victim to hire legal representation, proceeding on your own is a terrible idea. Some people choose not to retain an attorney because they believe the legal fees will reduce their compensation. However, a lawyer almost always results in more compensation. Others mistakenly believe the liable party’s insurance company will offer fair compensation or are overconfident in their ability to handle the claim.
While we always hope for a positive experience with the healthcare system, mistakes happen, and they can be devastating. A survey on medical errors from the University of Chicago found that 41 percent of people in the U.S. believed a health care professional made a medical error in their care.
Medical malpractice is the third leading cause of death in the U.S. Approximately 20,000 people file medical malpractice lawsuits annually in the U.S., and about 30 percent of the victims die from medical negligence.
Table of Contents
- Common types of medical malpractice
- Understanding the Legal Process
- Why do you need a lawyer for a medical malpractice lawsuit?
- The challenges of handling your medical malpractice claim alone
Common types of medical malpractice
Medical malpractice can happen in a wide variety of circumstances. A recent study shows that medical errors with severe consequences most likely occur in emergency rooms, operating rooms, and intensive care units.
The largest percentage of medical malpractice claims arise from errors in diagnosis, errors related to surgery, and mistakes in treatment. Some medical malpractice mistakes are difficult to recognize because the patient may not realize the injury occurred until much later. Common types of medical malpractice include:
The most frequent form of malpractice is a misdiagnosis or failure to diagnose a serious health condition. For example, a physician’s failure to correctly diagnose a heart attack, cancer, or stroke is dangerous because a lack of proper treatment can have serious consequences.
Many medical malpractice cases involve mistakes in the operating room. These may include operating on the wrong body part, performing an incision at the wrong location, damaging a nerve, or leaving surgical equipment such as sponges or instruments inside the patient.
Treatment errors or failing to treat a health condition can have severe or fatal consequences. These errors may include not offering any treatment, prescribing the wrong medication, administering the incorrect treatment for the condition, or providing an outdated treatment.
Many malpractice lawsuits arise from mistakes in prescribing and administering medication. Examples of medication errors include administering the wrong medication or the wrong dosage. In other cases, the doctor or pharmacist may mislabel the medication, fail to notice a patient’s allergies or potential drug interactions, or not warn patients about the medication’s side effects.
Birth injuries happen during pregnancy, labor, or delivery. They include failure to notice fetal distress, delayed delivery, improper use of forceps, excessive force during the delivery, failure to perform a C-section when necessary, and failure to prevent hypoxia (cerebral palsy). A birth injury can lead to devastating, lifelong damage.
The odds of curing cancer increase when a doctor detects it early. Therefore, A missed or erroneous cancer diagnosis may have serious consequences. For example, the disease may progress to an inoperable stage before a doctor detects it, making treatment ineffective.
Some of the most common anesthesia errors affecting patients include:
- Administering too much or too little anesthesia.
- Providing the wrong type of anesthesia.
- Delaying administering anesthesia.
- Failing to identify a patient’s allergies or adverse drug reactions caused by interactions between anesthesia and other medications.
Bedsores, also called pressure ulcers, frequently occur when a person remains in the same position for too long. They are among the most common medical malpractice errors in hospitals and nursing homes.
Bedsores are never events, meaning that a pressure ulcer or bed sore should never occur with proper care and treatment of a patient. If doctors do not treat bedsores effectively, the sores can become infected and dangerous.
Failure to prevent or treat infections
Hospital infections are surprisingly common. Unsanitary conditions or surgical implements can lead to infection. Infections also happen when staff members fail to take simple precautions such as wearing masks or disinfecting their hands.
Medical malpractice mistakes leading to patient infection include:
- Hospital-acquired infections.
- Infections resulting from perforations during examinations.
- Misdiagnosed infections.
Dentists and oral surgeons can also make dangerous errors, such as misdiagnosing oral cancer or incorrectly administering anesthesia.
Understanding the Legal Process
Anyone in a lawsuit should understand the legal process. Here is a brief overview of the basic steps.
In your initial consultation with your lawyer, you will provide information about your case and have an opportunity to ask questions. Your lawyer will ask about the medical care related to your injury and why you believe medical malpractice may have occurred. They will also explain the statute of limitations and your case's filing deadline.
Medical records and other relevant evidence are critical to building a solid case. Medical records typically include the doctor's notes and orders, lab results, hospital, nursing, and medication records.
Investigate the case
Medical malpractice lawyers generally have many resources to investigate the case. They will identify all potentially liable parties, look for violations of standards of care, and analyze possible obstacles that may arise. They will also select and arrange for expert witnesses to support your case.
During the pre-trial, or discovery, phase, your lawyer will continue to gather and evaluate evidence, and both sides will obtain information from the opposing party to support their positions. The parties may also obtain statements and copies of documents from the other party.
In the pre-trial period, the lawyers from both sides resolve any legal issues and obtain rulings on motions. Some motions may seek to end the case before it goes to trial based on alleged deficiencies in the issues or evidence. For example, motions may seek to limit or exclude particular witness testimony.
Settlement negotiations are offers and counteroffers between the parties to reach an agreement. A skilled negotiator as an attorney significantly increases the chances of achieving a fair settlement. Settlement negotiations during a medical malpractice case sometimes involve alternative dispute resolution (ADR), such as mediation or arbitration.
In these instances, an unbiased, neutral third party conducts meetings between the parties to help facilitate conflict resolution and work towards a settlement agreement. Settlement negotiations in medical malpractice cases typically happen over weeks or months.
Most malpractice cases never make it to the courtroom: only about 7 percent reach a jury trial. At trial, both parties present their arguments and all relevant evidence before the finder of fact. Juries hear most cases, but in some cases, a judge hears the case. Witnesses and medical experts on both sides testify and undergo cross-examination by the opposing parties’ attorneys.
After hearing all evidence and arguments, the jury or judge will decide if the defendant deviated from the standard of care and if that deviation harmed the patient.
If they determine that medical malpractice occurred, the judge or jury will decide the amount the defendant has to pay in damages. Medical malpractice trials typically last one to four weeks. The losing party has the right to appeal the court’s decision.
Why do you need a lawyer for a medical malpractice lawsuit?
There are many critical details and moving parts in a medical malpractice lawsuit. Even if you believe your case is simple and clear-cut, malpractice lawsuits are particularly complex, primarily because they involve legal and medical issues. Here are a few reasons why you need legal representation.
Dealing with insurance companies and opposing counsel
If you suffer an injury due to medical malpractice, the harm can have serious health consequences, possibly for the rest of your life.
A lifelong injury means expensive medical care, and the financial stakes are high. Therefore, the insurance company will fight to minimize or deny the injured person’s claim. They may be uncooperative in settlement negotiations, especially if an experienced attorney does not represent the injured person.
A medical malpractice victim is not just up against a claims adjuster. The insurance company typically has resources, including teams of lawyers and investigators whose sole focus is fighting claims. Your medical malpractice lawyer will protect your rights and handle negotiations and other communications with the opposing side so you can focus on your recovery.
Understanding and assessing damages
You believe you deserve compensation, but how much? How much compensation will it take to pay your current bills, plus care costs far into the future? And what about compensation for the non-economic costs on the lives of you and your family?
Each case is different, and there is no simple formula for determining compensation. Factors may include the nature and extent of the injury, medical costs and treatments, and the effects on the patient’s life.
Navigating the legal process
You must meet deadlines, such as the statute of limitations, to pursue a medical malpractice lawsuit. Statutes of limitations vary from state to state and are complicated to interpret.
These statutes determine how much time you have to file a lawsuit after an injury before you lose your right to make a legal claim. Your attorney will explain your legal options, ensure you meet all deadlines, guide you through the claims process, and work to obtain the best possible outcome for your case.
The challenges of handling your medical malpractice claim alone
Medical malpractice cases are often complex and difficult to win without proper legal representation. The case requirements vary from state to state. Those who try to manage their injury claims alone often do not realize that they must immediately take steps to preserve the evidence and protect their rights.
For example, Pennsylvania has a certificate of merit requirement. The medical malpractice plaintiff (or their attorney) must file a signed certificate of merit affirming that an appropriate licensed professional has reviewed the claim and believes that the healthcare provider's conduct fell outside acceptable professional standards, harming the plaintiff.
The claimant must file this certificate with the complaint (the document that starts the lawsuit) or within 60 days after filing the complaint. Further requirements concern the qualifications of the appropriate licensed professional.
Florida has similar strict requirements, primarily to weed out frivolous lawsuits.
These laws require the claimant to:
- Have their attorney first investigate to verify that there is a basis for the case
- Gather and review medical records from the appropriate health care providers
- Have the records reviewed by a medical expert who has similar qualifications
- Submit a signed, verified, written expert medical opinion from the expert affirming they have reviewed the records and that there are reasonable grounds to proceed with the case
- Have their attorney file a Notice of Intent to Initiate Litigation for Medical Negligence. This document summarizes the claim’s facts and lists the prospective plaintiffs and defendants. The attorney must attach the notice to the expert’s affidavit, and each prospective defendant must receive a copy of the notice.
- Gather evidence during the 90-day pre-suit investigative period.
After that, the prospective defendant can either reject the claim, offer a settlement, or make an offer to arbitrate. If they choose arbitration, the defendant admits liability, and the arbitration only deals with the issue of damages.
To prevail in a medical malpractice lawsuit, the injured patient must show that the health care professional was negligent while providing medical care and that the negligence resulted in injury.
The four legal elements are:
- The medical professional owed a duty to the patient;
- The medical professional breached this duty;
- The medical professional’s breached duty caused the injury; and
- The injuries resulted in damages.
Doctors win the majority of medical malpractice cases that go to trial. Many juries give the doctor the benefit of the doubt. They believe that the practice of medicine is difficult, that most doctors try their best, and that not all patients have a good outcome. The facts are usually so complex that it is difficult for anyone not in the medical field to know if the patient's doctor is liable for the injury. Therefore, you need expert medical witnesses to present a clear and compelling medical malpractice case.
Medical malpractice lawsuits involve unique laws and complicated medical matters. If you or someone you love suffered an injury from medical malpractice, consult an experienced, dedicated medical malpractice lawyer immediately. For more information or a free consultation, call a medical malpractice lawyer near you today.