When To Sue For Medical Malpractice
POSTED BY Jan Dils . October 10, 2016
Undergoing a medical malpractice case can be a daunting and stressful process, especially if you aren’t terribly familiar with what constitutes a legitimate medical malpractice claim. While a Parkersburg medical malpractice lawyer can help guide you through each stage of the claim process, it’s still a good idea to have a little knowledge beforehand of what the entire process will entail. Of course, it’s also worth reviewing this information before visiting a hospital, so that you’re better prepared for any situations before they turn from bad to worse. An injury attorney can only do so much after the fact, you’ll have to rely on your own sense of judgment when dealing with doctors directly.
Basic Requirements of a Medical Malpractice Claim
When filing a medical malpractice claim, you and your injury attorney must be able to prove a set of several facts: there was a doctor-patient relationship between yourself and the doctor, the doctor was negligent in a way that a doctor acting reasonably would not have been, the doctor’s negligence is responsible for the injury, and that the injury led to a set of specified damages.
Before any claim can be taken seriously, you must first be able to prove that you and the doctor had an actual doctor-patient relationship. Just because someone happens to be a doctor and gave you some advice in passing does not mean that it was medical malpractice. As it is legally defined, medical malpractice can only result from a doctor failing in their role as a doctor, not when they’re outside of their work.
The next step is to prove that the doctor’s actions were negligent. It’s important here to discern the difference between negligent and unsatisfactory. Even though you’re disappointed with the results of a treatment or diagnosis, it doesn’t necessarily mean that the doctor acted poorly. Instead, there must be proof that the doctor’s decisions were in contrast to the way in which an otherwise reasonable doctor would have acted.
After proving that the doctor was negligent, the next step is to prove that it was because of this negligence that an injury occurred. Unfortunately, this can also create a complication when it comes to determining what constitutes an injury. After all, most people that go to the hospital do so because they’re already under some kind of duress. Thus, you have the burden of proof in a medical malpractice suit to prove that the doctor not only caused you harm, but that it was independent of anything you were suffering from.
Finally, you must prove that any injuries that resulted from the doctor’s negligent actions caused a real and provable harm that needs to be rectified. This is where the expertise of a professional like a Parkersburg medical malpractice lawyer comes into play. Lawyers can break down the damages caused by an injury and turn it into easily defined terms, such as physical pain, mental anguish, lost work, and lost earning capacity. This also serves to create the baseline for the damages sought from the lawsuit.
Special Requirements for Medical Malpractice Claims
In addition to the basic requirements outlined above, many states have additional regulations in regards to medical malpractice claims.
One of the biggest issues that might catch people off-guard is just how quickly a claim must be brought forward. In most states, a medical malpractice claim must be filed within six months to two years at the most. This is why it’s so important to seek out an attorney if you’re not sure whether or not you have a claim. At least if you speak to a professional early, you’ll have more options available to you later on. It’s also worth mentioning that different states have different regulations regarding when the “clock” officially starts ticking on a medical malpractice claim. While some states understandably start counting from when the negligent act occurred, others define the start date as when the injury should have been discovered.
Another obstacle that might come up, depending on the state, is a review panel. Review panels are comprised of experts in the field and will typically look at all of the components of the medical malpractice claim. While they do not take the place of the trial, their findings do have a significant impact on it. If a case is not found to be worthy, as according to the review panel, then it will typically be dismissed in court. Conversely, if the review finds that medical malpractice did occur, then this can have a positive impact on the outcome of the trial for you.
Some states have passed laws to provide further protection to doctors, in order to protect them from frivolous medical malpractice suits. As a result of this protection, some states require that you notify the doctor ahead of time before you file the malpractice claim.
While an expert’s testimonial is not a federally mandated legal requirement of medical malpractice claims, many states have actually turned it into a requirement. Even in these situations though, there are certain exceptions where an expert’s knowledge is not required. Typically, these are situations where the harm was obvious and negligent, such as accidentally leaving a surgical tool inside a patient after an operation.
The last thing to consider before filing a claim in a state is the state’s cap on medical malpractice damages that can be awarded to an individual. As mentioned previously, the rise in frivolous malpractice suits has made some states become stricter about how much can be won from a case.
Common Types of Medical Malpractice
Medical malpractice claims can primarily be broken down into three broad categories of malpractice: a diagnosis failure, an improper treatment, or a failure to warn a patient of known risks.
For cases that hinge on a failure to diagnose, the victim must provide evidence that any reasonable doctor would have been able to make a more accurate diagnosis than the one the doctor actually made. In addition, there must be evidence that a more accurate diagnosis would have had a more positive impact on the outcome of treatment.
With regards to improper treatment, these are probably the most widely known cases of medical malpractice. Improper treatment occurs whenever a doctor’s method of treatment results in additional harm to the patient. This doesn’t necessarily mean the treatment was incorrect, either, as it can also mean the doctor simply didn’t administer it properly.
The last type of medical malpractice claim is probably the one that is least widely known. Referred to as the “duty of informed consent,” it essentially means that a doctor is required to notify their patient of all possible risks before allowing them to go through with a treatment.
All of these state variations, requirements, and claim types may seem overwhelming. It is precisely for this reason that having an experienced medical malpractice lawyer by your side is so valuable to the outcome of a malpractice claim.