The first thing you think of when we go to a healthcare provider is that you’re going to get better. You believe that the doctor, nurse, or medical provider is going to help you with your medical issue and try their best. But sometimes, when their best isn’t in line with what they’ve been taught or in line with what is reasonable under the circumstances, bad things can happen. In these situations, these bad things can further harm or even kill someone and may be examples of medical malpractice.
If you or a loved one is injured because of a healthcare provider, whether it was a doctor, nurse, or someone else, then you might have a medical malpractice claim. In these situations, you should talk to a medical malpractice lawyer for advice. When dealing with these issues, a lawyer experienced in medical malpractice claims a skilled professional who will have your best interests in mind.
In this article, we’re going to cover various topics about medical malpractice and how to hire an experienced lawyer. Some of the issues we’ll discuss are the different types of medical malpractice, how to prove medical malpractice in court, damages a court can award, and finally how a medical malpractice lawyer can help.
At the end of this article, we’ve provided a link to our guide. The guide will teach you everything you need to know about how to get a lawyer.
Before we go further, you need to know that the information in this section is only general information about medical malpractice law. It is not legal advice, and it is not even specific advice. Instead, it is general information to prepare for your meeting with a medical malpractice lawyer. At the meeting, the lawyer can accurately advise you on how medical malpractice law applies to the facts of your specific situation.
Medical Malpractice Basics
The top two leading causes of death in the United States are heart disease and cancer. Do you know what number three is? You won’t believe it, but it’s medical malpractice! In the United States, there are more than 200,000 people that die each year from medical malpractice!
Here are the top four types of medical malpractice that medical malpractice lawyers handle each year:
The most common cause of medical malpractice is not surgery. Instead, the most common cause is medication error. Over 500,000 people each year get hospitalized because of mistakes involving medicine. In this category, a medical malpractice lawyer could bring a lawsuit against a doctor for writing the wrong prescription. Another common type of malpractice case is where a pharmacist filled the order with the wrong drug.
One more type of lawsuit that medical malpractice lawyers handle often is drug interactions. The doctor failed to read essential parts of the patient’s record and didn’t realize the patient was already taking certain medications or had sensitivity or allergies to certain drugs. In these instances, an attorney would review the detailed history of the patient and decide whether to file a medical malpractice claim.
Another leading cause of medical malpractice is a misdiagnosis. Misdiagnosis is a broad category that includes many different actions by healthcare providers. For example, misdiagnosis can be incorrect diagnosis, incorrectly prescribed treatment, failure to diagnose the condition, and also failure to correctly read the patient’s charts, lab results, or history.
If you think that a healthcare provider has misdiagnosed you, then collect as much evidence as possible for your lawyer. Make sure to document everything and show it to a medical malpractice lawyer during a free consultation. The lawyer will be able to analyze the facts of your situation and indicate whether your injury was the result of misdiagnosis or something else.
It’s surprising that surgical errors are even a thing, but they happen very frequently. In many surgeries, the error was incorrect site surgery. An incorrect site surgery is where they operate on the wrong body part. It could be that they amputated the wrong leg or even the right leg on the wrong patient!
Another standard surgical error is when the healthcare provider or doctor negligently leaves surgical materials inside your body — the typical example of where a doctor left a sponge inside a patient after the surgery. A medical malpractice lawyer should know of the different ways that surgical errors can occur and can apply that knowledge to the facts of your case.
Post Treatment Errors
The final common category for medical malpractice is called post-treatment errors. It could be that the doctor failed to follow up after the surgery and this lead to complications. A medical malpractice lawyer will look at whether these complications were avoidable if not for the negligence of the doctor.
Another type of post-treatment error is a failure by the doctor to prescribe the appropriate recovery treatment. In these cases, whether the error rises to the level of a lawsuit is something you should discuss with a lawyer experienced in medical malpractice law.
A medical malpractice lawyer must prove something called negligence to win your lawsuit. In general, a healthcare provider acted negligently if their actions were unreasonable given the circumstances, and other healthcare providers in the same situation would have acted differently.
Negligence has four different elements:
- Duty of care owed to the patient
- Breach of the duty of care
- Harm was caused by the breach
Duty of Care Owed to the Patient
A duty of care exists upon creating a doctor-patient relationship. If a doctor advised a patient or operated on a patient, then the doctor owes that patient a duty of care. The duty of care owed is that the medical provider or doctor must exercise reasonable care under the circumstances.
Breach of the Duty of Care
A lawyer will try to show that the medical provider breached the duty of care because their actions were unreasonable in the circumstances.
Harm Caused by the Breach
But it’s not enough that the healthcare provider breached his or her duty of care. The medical malpractice attorney must also prove that the breach of the duty caused the harm to the patient. To prove this, a lawyer must prove two different elements: actual causation and proximate causation.
The first element of providing causation is actual cause. The lawyer must prove that the medical practitioner’s actions caused the result. The second element of proving causation is proximate cause. The medical malpractice attorney must show that the resulting injury was a reasonably foreseeable possibility based on the provider’s actions.
The last element of negligence is called damages, which refers to injuries that the patient has suffered.
As a hypothetical example, what if a pharmacist filled the prescription with the wrong medication, but caught the mistake and corrected it before giving the drug to the patient. In that situation, was the patient harmed and did they suffer any damages?
We’ve already talked about damages above, which are those suffered by the patient at the hands of the medical provider. But when a court uses the word damages, they are talking in terms of restitution (i.e., money to compensate you for your injury).
In general, the court bases its award on the type of injury. Here are a few of the many different ways a court can classify an injury:
- Temporary injuries (major or minor)
- Permanent injuries (major or minor)
- Injuries requiring lifelong care
The different injuries listed above can affect the injured person in various ways. Here are some of the different types of damages a medical malpractice lawyer could argue in court based on the type of injury:
- Medical costs
- Future treatment costs
- Pain and suffering
- Lost wages and future wages
- Funeral expenses
- Punitive damages
- Partial or total disability
In some states, a court might cap damages based on the severity of the injury. Whether you have a cap in your state is something that your medical malpractice lawyer could explain at a free consultation.
Finally, the last thing we should mention is the average payouts for various degrees of injuries. Again, these numbers are just averages and act as general indicators. But your lawyer should explain that the exact amount can fluctuate depending on the nature of your injury and specific facts.
- $1,000,000 for lifelong car or quadriplegic, brain damage, etc
- $500,00 for a significant permanent injury
- $200,000 for a significant temporary injury
- $50,000 for minor temporary or insignificant injury
How a Medical Malpractice Lawyer Can Help
A medical malpractice lawyer is invaluable if you get injured because of a healthcare provider. Here are some of the additional ways that a lawyer experienced in medical malpractice law can help your case:
Identification of Responsible Providers
In some situations, it’s easy to determine who is responsible for an injury. At other times, however, it’s less clear. For example, when you go to the hospital, there might have been ten to fifteen different providers that interacted with you. Which one of them caused the error? Who should you sue? Can you sue the hospital itself, or do you have to sue everyone?
Identifying the responsible party is one of the first things that a medical malpractice lawyer will investigate. It’s imperative to find the right people because it can waste a lot of time and money going after someone who isn’t at fault.
Ability to Negotiate with Insurance Companies
You might not know this already, but over 90% of all medical malpractice claims settle outside of court. That is a HUGE number. But knowing what amount to settle for is critical. A lawyer with experience in medical malpractice cases will know what the going rate is for similar injuries and can persuasively argue these statistics to the insurance company.
The key to remember is that settling before a lawsuit can be a lot cheaper than going to court. Yes, your lawyer will still take a portion of your settlement to pay their fees, but settling before a lawsuit takes fewer billable hours. In the end, you could save a lot of money assuming the settlement isn’t less than you would have received at trial.
The key to any medical malpractice claim is evidence. Anytime you go to the hospital, records upon records created. A few days stay in the hospital could result in hundreds of pages of documents. It’s critical for your attorney to get these records and review them for mistakes. In many situations, what happened to you won’t line up with what’s in the file, and this makes it easier to prove negligence.
To show that a medical provider’s actions deviated from what was reasonable under the circumstances, a medical malpractice lawyer can bring in expert witnesses. In some states, the law places restrictions on who can act as an expert witness in court. A lawyer should understand these requirements and hire an expert who satisfies the qualifications.
Knowledge of Filing Requirements
In every state, each court has unique filing requirements for medical malpractice claims. For example, some states require a certificate of merit before filing a complaint against a doctor. The certificate of merit is like a pseudo-review of the doctor’s actions by another doctor. The other doctor states in their certificate that the plaintiff’s doctor’s actions did not follow commonly accepted medical practices. The certificate also asserts that the plaintiff’s injuries were a result of not following those widely accepted medical practices. Without this certificate, a plaintiff cannot sue a doctor for medical malpractice in these states.
A medical malpractice lawyer, assuming you hire someone in the right city, should know the filing requirements of the local court. The experience the lawyer brings to your case is invaluable anytime you are dealing with medical malpractice issues.
Free Initial Consultation
Unlike many other fields of law, medical malpractice lawyers usually offer free consultations and work on a contingency fee basis. What does this mean? It means that you can meet with a lawyer free of charge and discuss your case. If you decide to hire the lawyer, you don’t pay them a dime unless you win your case. That’s a sweet deal right?
Ability to Create Convincing Arguments in Court
The biggest thing most people forget about lawyers is their knack for crafting a compelling argument. At most law firms, they have lawyers who work behind the scenes on cases but also trial lawyers, whose only job is to argue before the judge and jury. These types of lawyers are experts at their craft and know how to tug on the heartstrings of the jury to convince them that the medical provider is at fault.
How To Get A Medical Malpractice Lawyer
If you’ve come this far, then you should have enough general information about medical malpractice law to assist a lawyer in advising you about your specific situation. Also, you should have a general idea about how a medical malpractice lawyer can help your situation.
But before you start searching for a local medical malpractice lawyer, there is one more step you should take. We highly recommend reading our guide about how to get a lawyer. In the guide, you will learn many things about how to get a lawyer. Here is an example of what you will learn:
- How to find a lawyer experienced with medical malpractice law.
- How to research the lawyer’s background.
- Questions to ask before an initial consultation.
- Questions to ask during an initial consultation.
- Observations to record about the lawyer
- How to decide whether to hire a medical malpractice lawyer.
Once you read this guide, you should be prepared to hire a lawyer to help with your medical malpractice needs.