Medical Malpractice FAQ
Q. What is medical malpractice?
A. Medical malpractice occurs when a health professional fails to follow established procedures for his/her medical specialty resulting in an injury to the patient. Nursing home abuse, failure to follow proper diagnostic procedures, misdiagnosing, prescription errors, surgical errors, birth injuries and hospital or nursing negligence, HMO and lower tier health care provider negligence, e.g. family doctors, mid wives, physician’s assistants, medical assistants are common areas in which medical malpractice can occur.
Q. Can I file a malpractice suit against someone who isn’t a doctor?
A. Yes. Anyone who provides health care can be guilty of not following the standard procedures in their area of medical expertise, including nurses, technicians, physical therapists, and others.
Q. How can I tell if my case involves medical malpractice or not?
A. Experiencing a poor medical outcome does not automatically equal medical malpractice. In order to prove that you are the victim of medical malpractice, you have to prove that you did not receive reasonable care. Where your injury occurred and the level of skills available in the location are also evaluated. As a medical malpractice attorney I have handled many medical malpractice cases and am able to evaluate your information and assist you to determine if you have a case.
Q. What do I need to prove to establish a successful medical malpractice case?
A. To win a medical malpractice case, three things must be proven. 1) The defendant failed to act according to established medical practice standards when treating the injured party; 2) This failure to follow standard practice resulted in your injury or suffering; and 3) damages to the injured party. As you can see, medical malpractice cases are complicated and require expertise.
Q. How do I know what details are important enough to tell my attorney?
A. Assume that no detail is too minor to bring up. A medical malpractice attorney has far more experience than you at evaluating which details are significant. One of your “minor” details could prove pivotal in proving negligence.
Q. If I suspect that I have been the victim of negligence, how can I avoid tipping off the physician (or other health professional) that I am considering a lawsuit?
A. The following tips will help. First, if you are under the care of a physician, change doctors. If you must give a reason for changing doctors, give a reasonable response such as, “I would like a second opinion.” Having your new doctor request your medical records is routine, so it shouldn’t raise any concerns. You also have the legal right to request your medical records. Just make sure you don’t let on that you have been unhappy with your care. If a lawsuit is suspected, information can disappear.
Q. My doctor released my medical records to my employer. Can I sue?
A. It depends. Most medical records are confidential under HIPPA. Consulting a medical malpractice attorney can help you determine whether you have to disclose your records and whether or not you have a case.
Q. I was misdiagnosed. Do I have a malpractice case?
A. If your doctor exercised his judgment but his/her care did not fall below the standard of care, you may not have a case. The law does not require doctors to be perfect, only to follow standard procedures in seeking to diagnose and treat illness or injuries.
Q. What are these “standards of care” and who determines what they are?
A. The medical community provides the measuring stick as to what is the standard of care. This measuring stick is not as exact as a tape measure. It takes into account many variables. But the ultimate goal is to determine whether a physician or other health care professional acted in a manner consistent with or below the standard practices of other like professionals. This why the testimony of expert witnesses who have experience in the same practice area are essential for winning a medical malpractice suit.
Q. Can I lose my right to pursue a medical malpractice suit because I didn’t follow a doctor’s instructions?
A. Yes, you can. If you fail to exercise what is known as due care and do not mitigate your damages, you can be found comparatively at fault, which will minimize your recovery of damages. Make sure your follow your doctor’s or your health care providers’ instructions.
Q. How likely is it that my case will go to trial?
A. Medical malpractice claims are far more likely to proceed to trial than other claims. Part of this has to do with the complexity of medical malpractice cases. The burden of proof is on the plaintiff to prove that negligence occurred. Because of this, insurance companies are more likely to take the risk of a trial. Physicians who settle, even if it’s for less than $20,000, may be reported to the national data bank. This record follows a physician for the rest of his/her career, so you can understand why a physician would prefer to take his/her chances at winning in court.
Q. What expenses can I expect to cover when my malpractice case is settled?
A. You can pursue the following compensation in most situations: 1) Money to cover past, present, and future medical expenses related to your medical malpractice injury. 2) Money to cover other financial and economic damages, such as loss of income earning ability, etc. 3) Money to cover pain and suffering and disability or disfigurement.
Q. Is there a normal settlement I can expect for a medical malpractice case?
A. No, because every case is unique. Factors that contribute to the final settlement include: 1) changes in earning capacity; 2) impact on life functions; 3) jury perception of the injured party; 4) general feelings about medical malpractice in the region. A medical malpractice attorney can give you a better idea of what type of settlement you might receive after reviewing your case.
Q. Can I sue a doctor for what might have happened?
A. No. Just because a doctor might have chosen a better option, as long as no negligence was involved, it would be very difficult to pursue a case and win. Exercise of judgment or a bad outcome do not equate or give rise to a medical negligence claim. A health care provider is not a guarantor of any result.
Q. Can a case be reopened once it has been settled?
A. Most settlements require you to sign a release that prevents you from pursuing any additional claims in the future, so generally, once a case is settled, that’s it. This is why hiring a medical malpractice attorney is so important. You don’t want to sign your rights away.
Q. How soon must I file a medical malpractice lawsuit before I lose the right to do so?
A. In Washington, you may have 3 years in which to file your claim. If a minor is involved, there may be an extension. Consult a lawyer to verify your rights and to determine precisely by when the statute of limitations shall run on your case as the three (3) year rule does not apply to everyone.
Q. How much does it cost to speak with you about my situation?
A. We never charge for an initial consultation and review of the facts surrounding your case. Email Rob at Rob@kornfeldlaw.com or call 1 (800) 282-4878 to schedule a free consultation or case evaluation over the telephone, by e-mail or in person at a convenient location for you, either at our main office, a satellite meeting location, in your home or at the hospital.
Q. Why would you turn down my malpractice case?
A. We will not take on a case we do not feel we have a reasonable chance of winning. Unless we can find a credible expert witness that can support the claim of malpractice, we have wasted your time. You injury needs to be severe enough to have long-term consequences. Also, if the cost of bringing the case to trial will exceed the settlement, there is no point in dragging you through all that emotional turmoil, only to get nothing in return. We also consider the risk that your case will not prevail.
Author: Rob Kornfeld