Medical Malpractice - Malpractice FAQ

Q: What is medical malpractice?

A doctor or medical practitioner is guilty of medical malpractice when their treatment digresses from the appropriate standard of care while treating a patient.

Medical malpractice is more than a simple mistake made by your physician or health care provider. Malpractice occurs when the health care provider makes a judgment call or performs an action that other reasonably qualified treatment providers would have not done when faced with the same medical situation. When the doctor or another healthcare worker acts in a negligent manner or when he or she FAILS to act in the appropriate manner, medical malpractice has occurred.

When malpractice, or medical negligence, occurs, the victim or victims are entitled to monetary compensation for any injuries which may result.

Q: If a patient goes to a doctor and the result is unfortunate, are these easy cases for a medical malpractice lawyer to win?

No. Medical malpractice cases are among the most complex and difficult personal injury cases for a victim or victim's attorney to win.

To successfully bring a malpractice case to trial, expert testimony is necessary to describe in detail what was done wrong and how it could have and should have been avoided. Good, reliable experts are expensive, and great lengths must be taken to find doctors or experts willing and available to testify. Often, doctors within a community refuse to testify against one of their own colleagues, and doctors from other regions must be brought in to testify.

In many ways, the law recognizes the practice of medicine more as an art than a science. Physicians are given considerable latitude insofar as treating patients.

Q: Do all medical malpractice cases end up in trial?

While a malpractice case may settle before going to trial, many times the insurance company cannot settle a case without the doctor's or other treatment provider's consent. In many cases, doctors are unwilling to admit to making a mistake because doing so may adversely affect their insurance premiums, their hospital privileges or even their licensing. Without the doctor's consent the case cannot settle, no matter how much the patient and the doctor's insurance company may want to settle it. However, sometimes settlement is more plausible. For instance, when the claim is against a hospital or other type of treatment provider. In those instances there may be no consent clause to prevent the insurance company from settling meritorious cases.

In addition, in some states and in some situations there is a whole category of medical malpractice cases that never go to trial, but instead are resolved through binding arbitration. Many hospitals and doctors have the clients sign an agreement to go to binding arbitration if there is any dispute. These agreements are often in fine print in the initial papers the patient fills out when they first see the doctor or when they are initially admitted to the hospital. Often, the patient doesn't realize that he or she has signed a binding arbitration agreement until there is a problem and the lawyer finds this clause buried in the patient's medical records.

Q: How much can a victim of malpractice recover?

Some states provide an arbitrary cap on the amount of money that can be awarded in medical negligence actions for non-economic damages such as pain and suffering. The age of the victim is not factored into this decision.

Other states have no such caps. The amount that can be awarded is left to the sound discretion of a jury and/or a judge.

Q: Are there any other limits on medical malpractice lawsuits?

Yes. The statute of limitations is a limitation that applies to most lawsuits and is, what some might consider, the harshest of those placed on malpractice suits. Within a state's applicable time period, if a victim doesn't takes steps to formally preserve his or her claim for malpractice, all rights to bring any lawsuit will be lost after the time period has expired.

Sometimes, the laws of a state provide an exception to this rule if the patient is a minor or suffers from a disability, if the health care provider committed fraud against the victim, or in the unusual situation where a foreign body was left inside of a patient during surgery.

Q: How can one tell if a medical malpractice lawsuit is necessary?

Due to the financial cost involved in hiring experts and pursuing a malpractice case along with the difficulty in winning these cases, only the most serious malpractice claims have a chance for a successful conclusion. These cases are extremely hard fought and can be more emotionally taxing for the client than almost any other type of litigation.

Q: What is necessary to prove that someone died because of abuse or negligence?

The best way to prove the cause of death in a court of law is to order an autopsy. While it is possible to win a case without an autopsy, it will be extremely difficult to prove most cases if one is not performed. Even if you believe you know the cause of death, autopsies provide valuable information to aid in the lawsuit in addition to providing answers to family members about the circumstances surrounding a wrongful death.

It is best if the autopsy is performed at a location other than the hospital where the questionable medical care was received. If you can absorb the expense, consider having the autopsy performed at a university medical center. Be sure to request for the doctors involved in the care and treatment of the patient to NOT be allowed to be present during the autopsy and for the medical examiner/pathologist/toxicologist involved in the autopsy to NOT communicate with the treating doctors about what is discovered during the procedure.

Generally, it will take a couple of months to compile the final report regarding the autopsy. In the interim, whomever is listed as next of kin on the death certificate should IMMEDIATELY order ALL records from the hospital or health care facility where the questionable care was rendered. Bring the photo ID of the heir requesting the records together with a copy of the death certificate to the medical records department when requesting records. Record the name of whomever is taking the order for the records and the date the records will be prepared.

The records MUST be retrieved before the autopsy is completed so the health care providers in question will be unable to alter the records in order to conform to whatever is in the autopsy report that may or may not assist their version of events.

Q: What will an attorney do to determine if I have a good case?

If the victim suffered a severe and permanent injury, an experienced malpractice attorney will read and summarize all of the person's medical records to make an initial determination as to whether the case is viable. Most times, the medical malpractice attorney will do the necessary medical research to assist in the initial evaluation.

A malpractice lawyer will have all medical charts reviewed by a qualified expert to ensure there is a viable case before filing the malpractice lawsuit.

It is impossible to ascertain the merits of a medical malpractice lawsuit without extensive investigation, research, evaluation and consultation with medical experts.

Q: How much do medical malpractice attorneys charge to represent a victim?

Medical malpractice attorneys are most often hired on a contingency fee basis, meaning the victim does not pay any hourly fees to the attorney for his or her time. Attorney fees in medical malpractice cases are often based on a percentage of the amount of money recovered after the conclusion of the case. In some states, the contingent fee structure is mandated by statute.

However, in addition to the attorneys' fees there are many costs associated with expert testimony in malpractice cases.

Q: What can I do to make sure I select a good attorney to handle my medical malpractice case?

1. Select an attorney who devotes a substantial part of their practice to medical negligence and abuse claims and has done so for a number of years.
2. Inquire about other medical malpractice cases the lawyer has handled. If he or she has no experience with a case involving your same scenario, has a past case involved the same specialty? If so, ask them to describe it.
3. Inquire if the attorney has taught medical malpractice to other attorneys or authored any articles or books in the area. If they have not, what steps does the attorney take to keep abreast of evolving changes in both law and medicine?
4. Is the victim or client expected to pay for an expert's initial evaluation? If so, how much will the fee cost and at what time is it due?
5. Will the case be personally handled by the attorney, or will it be handled by an associate? If it is handled by an associate, how much experience does the associate have and what direct involvement will the primary attorney retain in the case?
6. What type of experts will the attorney retain to review the file, and how are they advised to oversee aspects of your case? Ask to see the experts' curriculum vitae (resume) to ensure the expert has a solid background in their field.
7. This final issue, the validity and strength of the case, is the most important factor. The investment both the victim and the attorney will make in pursuing the case will involve a tremendous amount of effort, time and resources. Given how difficult medical malpractice cases are to win, the client should make every effort to ensure they have a solid case before proceeding forward.

From society's point of view, filing a claim which ultimately cannot be proven hurts the civil justice system and will be used to attack the system by those who try to eliminate the rights of victims.

Q: Who should obtain my medical records?

It is impossible to determine whether or not you have a good case without reviewing your medical records. Sometimes, it is better for the victim or client to obtain a copy of ALL medical records rather than tasking the attorney with obtaining the records.

Having the patient rather than the lawyer obtain the records can be both beneficial and detrimental to the case. The benefits include the following: If it is determined that the case is either weak or unsubstantial, the healthcare provider will never know a lawyer reviewed the records. If the records are pulled with the excuse of obtaining a "second opinion," the health care provider is less suspicious in handing over the records. This also means records are less likely to be changed (on rare occasion health care providers have been known to lose or change select records). Finally, the provider will sometimes charge a patient less for a copy of the records than they would charge an attorney due to the nature of the request.

However, having a lawyer obtain the records saves the patient time and misery since they will be free from the hassle and inconvenience of dealing with doctors and hospital staff.

Often, if the health care provider knows that an attorney is involved, they will not release the records without first having a copy reviewed by their own attorney or risk management department, adding several weeks to the process and the eventual disbursement of the medical records.

When weighing the pros and cons, it is better for the patient to try to obtain their own records.

The patient or client should try to obtain ALL RECORDS AS SOON AS POSSIBLE after the medical malpractice incident occurs.

If the records are being obtained in a wrongful death case, the next of kin should give the health care provider a copy of the death certificate listing the individual as next of kin and a copy of their identification proving they are the person identified as next of kin.

If you or a loved one has suffered an injury, permanent damage, or death that seems to be your physician's fault, call VanDerGinst Law at 1-866-843-7367 or click here for a FREE online case evaluation. The initial consultation is free of charge. If we agree to handle your injury case, we will work on a contingency fee basis, which means we get paid for our services only if, and when, there is a money recovery for you. In many cases a lawsuit must be filed before an applicable expiration date, known as a statute of limitations. So please call right away to ensure that you do not waive your right to possible compensation.

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Mon, 12 May 2008 00:45:00 GMT Barack Obama Obama also pledges to support disease prevention programs, promote quality and cost transparency and reform medical malpractice insurance. Click here to read this Medical Malpractice - Malpractice FAQ news article.

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Sat, 10 May 2008 05:16:00 GMT Mississippi's Tort Reform Triumph Since the law took effect, the number of medical malpractice lawsuits has fallen by nearly 90%, which in turn has cut malpractice insurance... Click here to read this Medical Malpractice - Malpractice FAQ news article.

Fri, 9 May 2008 23:24:00 GMT Trial lawyers' group spent more than $1.1M in first quarter lobbying... The American Association for Justice, a trade group representing trial lawyers, spent more than $1.1 million in the first quarter to lobby on... Click here to read this Medical Malpractice - Malpractice FAQ news article.

Fri, 9 May 2008 16:47:00 GMT Oregon medical malpractice limit upheld The Oregon Supreme Court has upheld a five-year statute of limitations on medical malpractice lawsuits involving minors. Click here to read this Medical Malpractice - Malpractice FAQ news article.

Fri, 9 May 2008 14:30:00 GMT 77 more hepatitis cases may trace to clinic, officials say - The... LAS VEGAS (AP) - Seventy-seven more people who were treated at a Las Vegas outpatient clinic have been diagnosed with hepatitis C, health officials Click here to read this Medical Malpractice - Malpractice FAQ news article.

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