When a medical professional causes injuries because of negligence or omission, the patient could have a medical malpractice claim. Negligence could happen when a medical professional errs in diagnosing, the health management of a patient, or during aftercare. In some cases, medical malpractice is easier to determine than in other cases. However, most medical malpractice cases are complex, even those that seem obvious.
As the plaintiff, you must show certain elements to have a good malpractice case. Additionally, your medical malpractice case could have more than one defendant. Below are some examples of malpractice.
The Elements of a Medical Malpractice Case
To have a valid malpractice claim, you must show that the medical professional or facility met certain standards.
Duty to Provide a Standard of Care
Doctors and other medical professionals have a certain standard of care that they must meet. Because of their education and profession, the standard holds them to a higher standard of care for negligence than a layperson. The medical profession recognizes these standards as being acceptable to all medical professionals.
Violation of Standard of Care
You, as a patient, have the right to expect that any medical professional meets the standard of care for his or her position. A medical professional violates the standard of care with negligent actions or inaction, such as ignoring lab results or misdiagnosing an illness. If a medical professional does not meet the acceptable standard of care, the court could find him or her negligent.
A Medical Professional’s Violation of the Standard of Care Caused Your Injuries
Once you have determined that a medical professional violated his or her standard of care, you must also prove that the injury you suffered would not have happened if not for the medical professional’s negligence. If the court determines that the medical professional was not negligent, even though he or she violated the standard of care, you do not have a case.
You Suffered Significant Damage From Your Injuries
Finally, once you meet the first two elements, you must be able to show that the injury caused by negligence caused significant damages, including the cost of medical expenses to repair the damage done by the medical professional’s negligence, lost wages, pain and suffering, future lost wages, and other damages.
Because medical malpractice cases are expensive—you could require the testimony of medical experts—it does not make sense to pursue a case that is not worth at least the cost of litigation.
Examples of Medical Malpractice
Some examples of medical malpractice include:
- Failing to diagnose an illness or condition.
- Misdiagnosing an illness or condition.
- Surgical errors, including unnecessary surgery or surgery on the wrong site.
- Medication errors, including prescribing wrong medications, prescribing incorrect dosages, and failing to administer medications (such as for a nursing home patient or a hospital inpatient stay).
- Ignoring lab results.
- Incorrect reading of lab results.
- Discharging a patient prematurely.
- Failing to recognize symptoms.
- Failing to order the correct tests.
- Failing to order any tests.
- Ignoring patient history.
- Not taking appropriate patient history.
- Poor aftercare and/or follow-up.
Any of these negligent behaviors could lead to additional injuries or even death. If you suspect that a medical professional failed in his or her standard of care by taking any of the actions listed above, you should immediately seek a second opinion and contact a medical malpractice attorney.
Choosing a Medical Malpractice Attorney
Medical malpractice covers several types of injuries. The medical malpractice attorney you retain should have experience in handling cases like yours. While the difference in types of cases is minimal, it could affect your case if your attorney does not have experience handling those cases. For example, an attorney could have significant success rates for injuries caused by medication errors or surgical errors but might not have experience with the many things that could cause birth injuries, which is often a whole other set of circumstances.
Attorneys generally list their practice area expertise on their websites. For example, a birth injury attorney might have experience with perinatal asphyxia, cerebral palsy, Erb’s palsy, and spinal cord issues, whereas an attorney who handles misdiagnosis or surgical injuries might not list birth injuries as part of their medical malpractice cases.
Should you have a valid medical malpractice case, you or your loved ones could recover several types of damages.
Damages You Could Recover Because of a Medical Malpractice Incident
After a medical malpractice incident, you could recover damages in the form of compensation, including economic damages, non-economic damages, and punitive damages.
Special damages, often referred to as general damages, have a monetary value. The court orders the defendant to pay economic damages in an attempt to make the plaintiff whole again. Economic damages include:
Your medical expenses would include any doctor’s appointments, surgeries, follow-up appointments, and prescriptions related to the injury caused by a medical professional’s negligence. You could also recover compensation for upgrading a vehicle to hand controls and upgrading your home for wheelchair ramps, grab bars, widening doors, and updating the bathroom to accommodate your disabilities.
You could recover lost wages for the time you are not able to work due to injuries caused by a medical professional’s negligence. Additionally, if those injuries cause long-term or permanent disabilities, and the disabilities prevent you from working at the same rate of pay as before the incident—or prevent you from working at all, you could recover compensation for loss of earning capacity.
If you lost a loved one because of a medical professional’s negligence, you could recover compensation for funeral, burial, and/or cremation expenses. You could also recover compensation for other expenses, such as filing fees for probate court.
General damages, often referred to as non-economic damages, do not have a monetary value. The court orders the defendant to pay non-economic damages in an attempt to make you whole again. However, money cannot erase your injuries and/or disabilities, nor can it bring back a loved one. It can significantly reduce the financial stress of the missing income.
Non-economic damages include:
- Pain and suffering, including emotional distress.
- Loss of quality of life if you have to make certain life changes, such as taking prescriptions or using ambulatory aids for the rest of your life.
- Loss of companionship if you can no longer enjoy family events and activities or spending time with your family.
- Loss of consortium if your injuries prevent you from having a physical relationship with your spouse.
- Loss of use of a body part, such as a finger or foot.
- Loss of use of a bodily function, such as your eyesight or bladder.
- Inconvenience if you have to hire someone to do the chores you usually do, such as lawn maintenance, grocery shopping, home repair and maintenance, and house cleaning.
- Excessive scarring or disfigurement related to injuries caused by the medical professional’s negligence.
- Amputation of a limb or digit.
The court only orders punitive damages if the defendant’s actions or inactions were grossly negligent or intentional. Unlike economic damages and non-economic damages, the money you might receive from a punitive damage award is not to make you whole again. Instead, the court orders the defendant to pay it as a punishment. Florida and Pennsylvania allow you to recover punitive damages.
In the case of wrongful death, the decedent’s estate administrator files the lawsuit against the medical provider. The estate will recover damages to distribute according to the law and/or the decedent’s estate plan.
When the court determines a medical professional is negligent, that does not necessarily mean the medical professional was grossly negligent. What is the difference? When the breach of the medical professional’s duty to provide an acceptable standard of care would have been obvious to even a layperson and goes significantly beyond medical standards, the court could see the medical professional’s actions and/or inactions as grossly negligent.
For example, if you fall down an open manhole cover and break the bones in your left arm, you need immediate surgery. The surgeon comes in, discusses your injury with you, then takes you to the operating room and proceeds to amputate your right arm because he or she did not notice picking up another patient’s chart—one who required an amputation.
However, not every situation is so clear-cut. Medical malpractice cases are often complex, especially when you have more than one person who might share responsibility for your injuries.
How Do I Pay Medical Expenses Until I Win a Settlement or a Trial Award?
From the time of the incident through the time of settlement or a trial award, you are probably out of work and worried about paying your bills, never mind medical expenses. But, you cannot stop seeing the doctors who are trying to correct the issues caused by a negligent medical professional. Those doctors and other medical professionals want compensation for their services. So, how do you pay them when you are not working?
If a car accident caused your initial injuries, you could use your health insurance and vehicle insurance to pay some of your medical expenses. If your original injuries happened on your property, you might receive help from your homeowner’s insurance. When you receive a settlement or a trial award, you will reimburse the insurance companies.
How Do I Pay a Medical Malpractice Attorney?
Personal injury attorneys generally work on a contingency basis, which means they do not get paid unless you win your case. You are already worried about putting food on the table and keeping a roof over your head. While you are recovering, you should not have to worry about paying an attorney to help you recover the compensation you deserve.
Your initial case evaluation is free. When you come in for your case evaluation, should you decide to retain a personal injury attorney, they will outline all fees and costs in your contingency agreement. Their fees come out of your winnings. They will discuss “hard costs,” such as filing fees and when they are due during the case evaluation.
The Statute of Limitations for Medical Malpractice
Each state has a statute of limitations—a law that tells you how long you have to file a case against the defendant. While two or more years seems like a long time, it is not. Most people attempt to settle first. Additionally, your attorney needs time to gather evidence to present to a negligent doctor’s insurance for settlement purposes. You might also need to see a doctor for a second opinion for injuries caused by a negligent medical professional.
Because no one can determine how long it will take to obtain all of the information and appointments needed for a settlement, it is best to contact a medical malpractice attorney as soon as possible.
Pennsylvania’s statute of limitations for most personal injury cases, including medical malpractice and wrongful death, is two years.
Florida’s statute of limitations for most medical malpractice cases and wrongful death cases is two years from the time of the incident or from the time you discover the incident. The statute does put a limit on the time of discovery. You have only four years from the date of the incident to discover the medical malpractice and file a claim. However, you must do your due diligence to apply the four-year statute of limitations. If the evidence shows that you should have discovered the medical malpractice sooner, the statute bars recovery.
In another situation, the statute allows up to seven years from the date you discovered or should have discovered the injuries if the medical professional committed fraud such as covering up negligence.
Contact a Medical Malpractice Attorney
If the negligence or gross negligence of a medical professional injured you, contact a medical malpractice attorney for a free case evaluation.