Frequently Asked Questions - Medical Malpractice
Medical negligence, hospital malpractice and doctor mistakes can be a subject of personal injury claims. Medical questions and legal rules involved with injuries or illnesses due to the careless, unprofessional or incompetent treatment of a doctor, nurse, hospital, clinic, laboratory or other medical provider are complex. They almost certainly require that you hire a lawyer experienced in medical malpractice cases. If your question is not answered below, please contact the Medical Malpractice attorneys of Holland & Lamoureux for a free consultation.
Q. What is medical malpractice?
When a medical professional, such as a doctor, nurse, dentist, technician, hospital worker, hospital or other health care provider causes harm or death to a patient by failing to provide suitable care, medical malpractice or medical negligence occurs. An error in judgment is not malpractice. A medical malpractice lawyer can help determine if your health care provider did not provide acceptable care or if medical mistakes occurred. Your lawyer can also help explain the medical-legal process and help you feel at ease.
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Q. What are some examples of medical malpractice?
Examples can include failure to diagnose, misdiagnosis, prescription errors, surgical errors, birth injuries, nursing home abuse and more. Medical errors and mistakes made by hospitals, doctors and other medical professionals can result in medical malpractice, as well as sub-standard care and failure to perform a necessary function in order to prevent harm to a patient.
Q. Is misdiagnosis considered malpractice?
Not necessarily. Medicine is not an exact science and the law does not require doctors to be right every time they make a diagnosis. However, a misdiagnosis may be malpractice if your doctor neglects to get your medical history, order the appropriate test for your illness, or recognize the symptoms of your illness. If you have not suffered any injuries as a result of the misdiagnosis and the consequent treatment, you have no basis for a medical malpractice claim.
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Do unexpected or unsuccessful results mean medical malpractice has occurred? |
No. In general, no guarantees are made of medical results. Malpractice does not automatically occur just because a patient suffers a bad outcome. Unintended complications sometimes cause a bad outcome. Complications are not generally considered to be malpractice. In fact, most complications are contained on the consent form. Some of these include infection and bleeding.
Q. Have I waived my rights if I signed a waiver or consent form?
A consent form does not release a physician from liability who was negligent in performing a medical procedure. Except in extraordinary emergency situations, patients sign a general consent form for treatment upon admission to a hospital or prior to having an invasive procedure or operation, indicating that the doctor has explained the nature of the patient’s problem, the suggested treatment as well as alternative treatments, the risks involved with those treatments and that the patient has had an opportunity to ask questions before consenting to the recommended treatment. Signing a consent form does not waive a patient’s right to bring a medical malpractice claim if you can establish that your doctor deviated from the applicable standard of care in performing the procedure and you were injured as a result.
Q. Are medical malpractice cases common?
Medical mistakes remain a national epidemic. Each year in the United States, it’s estimated nearly 98,000 people die as a result of medical malpractice. Thousands more Americans are injured as a result of medical errors annually. Despite this high incidence of medical malpractice, statistics prove most medical malpractice goes unrecognized and unreported, with only about two percent of injured patients seeking compensation through a lawsuit.
Q. If I suspect that malpractice has occurred, what should I do?
If malpractice is suspected, do not accuse or insult the treating health care providers. As soon as possible, consult an experienced medical malpractice attorney. Tell the attorney exactly how the events unfolded; if possible, obtain your medical records so the attorney can have them reviewed by an expert. If the patient’s care is ongoing by the physician, you may want to transfer the patient to another hospital or health care provider.
Q. What must be proved in medical malpractice cases?
Three basic elements must be proven in a medical malpractice case against a health care professional. First you must show established standards of medical practice were not followed. Next, negligence or wrongdoing that resulted in the patient’s injury or suffering must be proved. Lastly, damages caused by the medical malpractice must be shown. Lack of adequate proof of any one of the three elements will result in failure of your case.
Q. How long will my case take?
To bring a case to conclusion, it normally takes 1 to 3 years. The time varies because of factors such as the number of parties involved, the number of depositions and investigation needed, schedules and commitments of experts, the judge and so forth. Most of the cases that we accept eventually settle. If the case is tried and you obtain a favorable verdict, a defendant has an absolute right to appeal. That appeal usually prolongs a case’s conclusion by two to four years. Although more than 80 percent of our cases settle, we find that defendants are now more willing to take cases all the way to trial because of tort reform.
Q. What kinds of expenses are involved?
The prosecution of a malpractice case is expensive. Medical records must be obtained, depositions must be taken and experts must be paid. The investment also includes costs for exhibits and technology to fully demonstrate the devastating injuries that are personal to each of our clients. The cost for our firm to develop a medical negligence case today often runs $50,000 to $200,000. In more complex cases, this cost may be substantially higher.
Q. How will I pay for an attorney’s time and expenses?
Our malpractice cases are handled on a contingent fee agreement. Your executed agreement provides that we receive a percentage of the recovery made as a result of the case’s prosecution. We do not expect you to pay or defray any of the expenses of developing the case until such time as a recovery is made. At that time, those expenses will be deducted from your settlement. In the event no recovery is realized, we do not expect you to repay the out-of-pocket costs for developing the case.
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Jason F. Lamoureux