Over 250,000 people die a year because of medical mistakes, indicating that medical malpractice is one of the three greatest causes of death in the United States.
Malpractice can be as simple as a failure to provide a fast diagnosis for a treatable complication of an illness, resulting in more grave consequences. Malpractice can also be as complex as a medical procedure gone wrong, causing irreparable damage.
Americans file over 85,000 medical malpractice claims annually; on average, small claims were the most successful, with over $400,000 USD paid. Typically, malpractice suits are characterized by the need for extensive care, the extent of the damage done, and proof of misconduct.
In the unfortunate case that you have encountered malpractice, you are entitled to file a claim where you can quickly and efficiently resolve disputes. Below, find out how DoNotPay streamlines this process, resulting in faster and greater benefits for you!
What is Malpractice?
Malpractice is improper, illegal, or negligent professional activity or treatment. There are three specific characteristics a malpractice claim must have to be considered in the eyes of the law:
- A Violation of the Standard of Care – If you are treated in a way that violates your reasonable expectation of care, negligence can be established.
- An Injury Caused by Negligence – You must prove that you were injured as a result of the negligence.
- Significant Damages as a Result of the Injury – You must prove that significant damages resulted from the medical negligence, resulting in disability, loss of income, chronic pain, suffering, hardship, or expensive past and future medical bills
Malpractice vs. Negligence
Although commonly used interchangeably, malpractice and negligence are different. Both terms describe a fault on the physician/medical professional’s end, but refer to different occurrences that resulted in damages.
Example: A physician failing to perform a C-section in a timely manner, resulting in injuries to the baby
Example: A physician accidentally miscalculating the number of sedatives needed for an epidural.
Suing for Medical Malpractice
Medical malpractice is a legal cause of action that occurs when a medical or healthcare professional fails to meet the standards of their profession. These are the “4 D’s” — requirements that are needed to establish medical malpractice and for solidifying cases.
- Duty of Care – A doctor owes consumers a duty of care, which is treatment within a reasonable scope of the doctor’s skillset, care, and diligence as any other reasonable physician would do in the same circumstances.
- Dereliction/Failure to Fulfill – This refers to the failure of a medical professional to provide the patient with the treatment and expertise needed.
- Direct Causation – You must prove that the dereliction (step 2) was the reason that you suffered harm; it must be the direct cause of injury or damages.
- Damages – You must establish that you’ve suffered harm; physically, mentally, or both. In addition, you must have evidence to prove this; medical records, prescriptions, or the testimony of credible witnesses (a therapist, for instance). Below are some examples of common damages:
- Loss of the use of an organ or limb
- Loss of life enjoyment
Things to Consider Before Suing For Malpractice By Yourself
It is important to consider that filing a medical malpractice lawsuit is a lengthy and often costly process that might take years to properly file and substantiate. Unlike other claims, there is an extensive review, submission, and reformatting process involved.
In addition, states like California, have a “statute of limitations” rule — preventing a claim from being filed after a certain amount of time. Keeping this in mind, it is essential to note that often, the need for legal instruction is essential.
Sue For Medical Malpractice Through DoNotPay
As a solution to this problem that is easily accessible (and affordable) — DoNotPay offers an automated lawsuit filer. It effectively streamlines the legal process and cuts costs efficiently while not compromising success. All you need to do is:
- Log on to DoNotPay on any web browser and select “Sue Now”
- Then, you will enter the dollar amount owed.
- Select whether you’d like to receive a demand letter or court filing forms
- Finally, describe your reason for filing the lawsuit, and submit any additional details (including your photo evidence)
That’s all! With DoNotPay, the extensive process of suing for malpractice is covered in an instant! DoNotPay will generate a demand letter or court filing forms for you!
Who Else Has DoNotPay Helped Sue?
DoNotPay has a track record of helping people sue big corporations or their next-door neighbors . Some of the companies we have helped sue include:
- Insurance companies
- And so much more!
No one wants to go through a bad experience with their doctor, but if it happens, you must know how to protect your rights. However, before you think about legal options, it’s important to understand the term “medical malpractice” (sadly, many patients don’t quite grasp the difference between their feelings and a real situation of misconduct or mistake in the medical world).
According to state laws (which differ from state to state), a medical malpractice case is valid when a patient has been harmed or injured by a medical provider (doctor, technician, nurse, or even medical worker). Additionally, you can also sue for medical malpractice in the case of a mistaken diagnosis due to improper handling of your analysis or data.
While most healthcare providers out there aim to help and improve the health of their patients, there are times when things go wrong. In fact, if we follow the statistics , around 41% of Americans believe a medical error was made in their care. However, despite this shockingly high number of people who believe a medical provider has wronged them, only 1% of cases end up in a lawsuit.
The main reason behind the low number of medical malpractice lawsuits stands in the fact that patients don’t have the necessary knowledge to pursue this path. Moreover, many people believe a lawsuit would be too expensive for their budget and avoid going down that road.
So, if you or a loved one or acquaintance have suffered from a medical worker’s negligence or poor skills, here are the things you should know for pursuing a medical malpractice lawsuit.
#1: Get Help From A Legal Professional
A medical malpractice legal professional can help you understand if you have a viable case or not. Moreover, they can help establish the type of malpractice and the steps to follow if it turns out you were indeed mistreated.
For instance, there are states that require patients to file a so-called certificate of merit. This is a medical assessment designed to establish that your injuries or discomfort were caused by the negligence of a healthcare professional. For this to be valid, it has to be performed by a specialized professional and your lawyer will know how to find the right one.
Quick tip: It’s best to get in contact with a legal professional as soon as possible (after you believe a case of malpractice occurred) since each state has different statutes of limitation for such situations.
#2: Gather Your Evidence
Your legal representative will ask about evidence. Otherwise, regardless of the situation, it will be very difficult to build a valid case.
But what exactly can be used as evidence?
In most cases, there will be a paper trail (forms you were required to fill at the doctor’s office, receipts, emails, and so on) to establish the doctor-patient relationship. You should also receive a prescription (if the situation pertains to treatment) or at least a medical chart specifying your diagnosis. All these can be used as evidence to prove the relationship existed and the mistakes the medical practitioner allegedly made.
Additionally, once you get the certificate of merit mentioned above, you have the opinion of a medical expert (which weighs heavily in a legal confrontation).
In summary, whenever you go to a doctor, make sure to get copies of all the papers and save all electronic communications. You never know when they may be useful.
#3: Know Who To Sue
In order to get the right compensation, you need to find the right person or entity against which to make your claim. In some cases, you may sue the doctor who wronged you, but in other cases, you may have to sue the hospital or even the healthcare system.
After you go through all these steps, it makes sense that so few malpractice cases actually reach a court of law. Therefore, it’s best to learn how to find a proper health specialist for your needs rather than try to get them to compensate you for their mistakes. Still, if you’ve been wronged, don’t let the complexity of the system intimidate you!
The lasting effects of medical malpractice cause enough stress without the daunting task of facing a potential legal battle. However, if you or a loved one have been seriously injured as a result of medical malpractice, you may be determined to take action. What can you do and where do you begin?
We are here to help. Suing for medical malpractice can be broken down into simple steps. With the guidelines we’ve provided, you will gain an understanding of whether you have a case. From there, you’ll want to gather your documents so that you can discuss them with a respected lawyer.
Read on as we break down the requirements for a case, as well as what you will need to prove your case. We give tips on how to take the first step toward winning your case: Finding a quality lawyer with experience and success in medical malpractice.
Medical malpractice: The basics
Medical malpractice is when a doctor, hospital, or other medical professional causes injury to a patient due to negligence. For example, this could mean that there was a misdiagnosis, a patient was not treated properly, or the aftercare or management of health was inaccurate.
Do you have a case?
Under law, medical malpractice has to meet these requirements:
- Standard of care violated: The standard of care involves certain medical standards that are legally recognized by the healthcare profession. Patients have the right to expect that medical professionals will deliver care according to these standards. If the standards are not met, this can establish negligence.
- Negligence resulting in injury: Patients have to prove the professional’s negligence directly caused injury.
- Injury resulting in significant damages: Patients must prove their injuries resulted in disability, suffering, pain, loss of income, or significant medical bills, both in the past and in the future.
If it makes sense in your specific situation, contact the doctor or medical professional first to try and understand what happened. Allow them to determine if it’s something they can resolve appropriately. If you’re met with contention, then you can move on to build your claim and contact your lawyer.
How to prove negligence
To prove negligence, you first should reach out to a respected lawyer with experience and success in medical malpractice cases. Medical malpractice law is highly regulated and complex, with many moving parts. You need someone on your side who can help you make sense of the pieces and guide you accordingly.
Fortunately, many lawyers offer free consultations to hear your case. Grover Lewis Johnson, for example, offers free consultations and doesn’t require payment of any fees until your case is won.
To put together your claim for negligence, you’ll need to obtain medical records and gather documents that could include bills, insurance records, a police report, and proof of your income loss. You’ll need any documents that prove the harm and suffering caused by the medical professional’s negligence.
With your lawyer’s help, you may need expert medical witnesses to testify on your behalf. These witnesses will need to convince the jury of the standard of care and how the medical professional breached their responsibility.
Do I have a case?
Different types of medical malpractice
Medical malpractice is defined in many ways. The following are some examples of situations that can fall under medical malpractice:
- Delayed diagnosis or misdiagnosis
- Misreading or ignoring lab results
- Unnecessary surgery
- Preventable birth injuries
- Medical product liability
- Surgical errors
- Incorrect medication or dosage
- Discharging too soon
- Not ordering proper testing
- Failure to recognize symptoms
- Improper followup or aftercare
- Not taking appropriate patient history or disregarding it
If you believe you fit into any of these categories or have questions about other areas, start gathering your documents and begin looking for a lawyer who can help.
First step in suing for medical malpractice
The first step to sue for medical malpractice is finding the right lawyer. To get the results you deserve, it’s important to find a bold, compassionate lawyer with years of experience and success in cases like yours.
When you find a lawyer you would like to discuss your situation with, ask questions and pay attention to how respectful, approachable, and confidently the lawyer responds before you decide to move forward.
Grover Lewis Johnson believes open communication is key to standing by our clients and supporting them. Starting with a free consultation, we will offer you honest recommendations, guided by our years of experience. If your case has merit, we will back it with our bold and respected reputation, throughout the entire process.
Our Medical Malpractice team is built on 25 years of experience and a simple mission rooted in compassion. We are genuinely interested in our clients, we carefully select our cases, and we continually exceed your expectations.
Call us today to speak with our team and schedule a free consultation to review your potential case. Whether reaching a settlement is best or we decide to take your case to trial, we will always do what is right, to help you get what you deserve.
When we go to medical practitioners, we expect healing and quality care. But what happens when a visit to the doctor’s office results in worse health, injury, or even death? Unfortunately, this occurs more commonly than we think.
Wronged parties file roughly twenty thousand medical malpractice cases annually in the US. We can best define medical malpractice as where a patient is hurt when a doctor deviates from the standard of care.
In Virginia, these cases fall under personal injury law. This categorization allows citizens to sue healthcare providers for compensatory or punitive damages due to medical malpractice.
What Is Medical Malpractice?
According to Virginia law, medical malpractice means “any tort action or breach of contract action for personal injuries or wrongful death, based on healthcare or professional services rendered, or which should have been rendered, by a healthcare provider, to a patient.”
Medical malpractice occurs when a healthcare provider causes injury, whether mental or physical, and damages, including financial impairment, to a patient by neglecting, omitting, or deviating from the appropriate standard of care, including wrongful diagnosis, improper treatment, or failure to disclose known risks, whether unintentional or intentional.
In Virginia, parties can bring medical malpractice claims against any healthcare provider. A healthcare provider can be anything from individual practitioners such as nurses, doctors, dental hygienists, and emergency medical technicians (EMTs) to facilities and corporations like hospitals and their employees—even those who don’t provide the healthcare themselves.
Statute Of Limitations On Medical Malpractices In Virginia
What is the statute of limitation for medical malpractice? Let’s define the term. A statute of limitations is the timeframe for filing a claim. There can be no legal recovery if it’s not filed within this period.
In Virginia, the statute of limitations for medical malpractice is two years from the date of injury, but there are some exceptions.
In a case of wrongful death, you must file the lawsuit within two years of the patient’s death. If the case involves a child under eight years old, you can file until their tenth birthday.
If the case is against a health provider employed by the Commonwealth of Virginia, you must provide notice to the Commonwealth within one year of the malpractice.
You may be able to extend the statute of limitations. If a patient is continuously getting treatment, they can file the lawsuit within two years of the date of last treatment. If the medical malpractice case involves a retained foreign object in the body, the plaintiff has a year from this discovery date to make a claim.
It’s best to learn how to find a lawyer for medical malpractice as soon as possible before your statute of limitations expires.
How To Sue For Medical Malpractice In Virginia
A medical malpractice case can take up to two years to settle. Here’s what to expect throughout the whole ordeal:
After you approach a medical malpractice attorney, an investigation will begin. It starts with reviewing the affected patient’s healthcare records, verifying if the records reflect the events as told by the client, and deciding whether the case is worth pursuing.
Once medical malpractice is suspected, an expert is employed to review the case to determine if negligence was present. This step is necessary for all medical malpractice cases in Virginia.
For example, if the competent reviewer looks at the case and would have followed another diagnosis or treatment, it further explains malpractice as the reason for adverse results. If the expert believes medical malpractice occurred, they certify it in writing.
After certification, you can now file a medical malpractice lawsuit. The defendant will get served and will have a month to respond.
Written Discovery And Depositions
The written discovery and depositions take up the bulk of the lawsuit, where questions and answers are sent back and forth between the parties.
Settlement Or Trial
The case can finish in a settlement or go to trial depending on the resolution attempts. It would be best to prepare for either scenario.
Get Help From A Virginia Medical Malpractice Attorney
Suppose you believe you’ve been a victim of medical malpractice. In that case, you can file a lawsuit by hiring a Virginia medical malpractice attorney at the Coastal Virginia Law Firm who can guide you through the proper procedure and help you find the peace and justice you deserve.
Home > Blog > How Hard is it to Sue a Doctor for Medical Malpractice?
Winning a medical malpractice case against a doctor is difficult. According to an NCBI study, doctors consistently win 50% of the medical malpractice cases that physician reviewers have concluded they should lose. Doctors also win 70% to 80% of medical malpractice cases with ambiguous or unclear evidence of negligence. This shows that there are variables that systematically favor doctors over injured patients in medical malpractice cases.
Another study showed that the rate of medical malpractice claims that receive some type of payout has declined, dropping approximately 56% between 1992 and 2014. If you are wondering whether it is worth pursuing a medical malpractice claim, keep in mind that the average payout has increased. Between 1992 and 1996, the payout for a malpractice claim averaged $287,000. Between 2009-2014, the average claim for a successful malpractice claim rose 23% to $353,000.
The Average Medical Malpractice Payout Varies Among Specialties
Malpractice payouts vary among specialties. Payouts for medical malpractice claims increase for specialists. For example, claims against pathologists are significantly higher than claims against general practitioners, on average. Analyzing trends in medical malpractice claims payouts can be helpful, but it is important to remember that every medical malpractice claim is unique.
Whether a general practice lawyer or specialist caused your injuries, speaking with a medical malpractice lawyer will help you get a better idea of your case’s likelihood of success. It is impossible to predict whether your case will be successful, but the experienced medical malpractice lawyers at Bishop Law Group have extensive experience. We will evaluate your case and help you understand your legal options.
Understanding the Difficulty of Medical Malpractice Cases
What makes obtaining compensation through a medical malpractice lawsuit so difficult? In a medical malpractice lawsuit, you, as the plaintiff, will need to provide substantial evidence to prove that the doctor’s negligence caused your injuries. Most medical malpractice lawsuits are heavily evidence-based, requiring a significant discovery process in which the plaintiff’s lawyer gathers records and deposes witnesses. As the plaintiff in a medical malpractice lawsuit, you will need to prove the following four elements:
- The Doctor-Patient Relationship: You will need to show that you were in a doctor-patient relationship with the defendant. In other words, you will need to provide evidence that you work with the doctor, and they agreed to care for your injury or illness. A doctor who is not directly involved in your medical treatment will not be liable for your injuries. Doctors and medical professionals owe a legal duty to their patients.
- Negligent Behavior: You also need to show that your doctor acted negligently or recklessly. Negligence happens when your doctor fails to provide you with a reasonable standard of care. You will need to provide evidence and expert witness testimony showing that any other reasonable and competent medical provider would have acted differently under similar circumstances.
- Causation: Causation is one of the most critical elements in a negligence case. You will need to use evidence that shows the doctor’s negligence directly caused you additional injury, illness, or pain. You also need to show that your original reason for seeking treatment did not lead to your injuries. In other words, the doctor may try to argue that you would have been injured anyway because of your initial illness or injuries. You will need to prove that the doctor’s negligence caused your injury or for your injury to become worse.
- Injuries: To succeed in a medical malpractice lawsuit, you will need to show that the injuries caused you a specific type of harm. For example, you will need to prove that the doctor’s negligence caused you physical harm. You can also recover compensation for the emotional and financial consequences of your doctor’s negligence.
Obtaining Evidence for Your Case
Proving all of these elements involves investigating your claim and gathering evidence. The discovery process is often complicated and expensive. During the discovery process, your legal team will gather medical records, speak to experts, and take depositions of the parties and witnesses involved. You will probably need to rely on expert testimony from other doctors or medical providers in a similar field. These expert witnesses will explain the standard of care in the defendant’s medical practice area to show that the doctor breached it, causing your injuries.
Gathering all of this detailed information is a time-consuming process, and you may not have access to all the witnesses and records you need. We recommend contacting a medical malpractice doctor as soon as possible after your accident due to the short amount of time you have to gather evidence. Your malpractice attorney will need time to investigate your case and ensure that you have a decent chance of success based on the evidence. The longer you wait, the harder it is to gather evidence supporting your claim. Witnesses may lose their memories of the event, and you may lose the evidence you need.
How Will a Personal Injury Lawyer Help You?
Winning a medical malpractice case is not easy. The burden of proof is on the injured patient, and many doctors have insurance that provides them with excellent legal counsel. However, it is worth discussing your case with an experienced medical malpractice lawyer. At Bishop Law Group, we have extensive experience representing clients in medical malpractice cases. We are prepared to use our skills and knowledge to work with you to help you and your loved ones recover the compensation you deserve.
If a doctor’s negligence has injured you or your loved one, we recommend scheduling a free initial consultation with our law firm. We will discuss your case with you and answer questions you have about the medical malpractice process. Contact us today to schedule your initial consultation to learn more about filing a medical malpractice lawsuit.
About Brian Bishop
Brian Bishop started the Bishop Law Group in October 2018. Mr. Bishop is an active member of Maryland Association of Justice, The American Association of Justice, The Academy of Truck Accident Attorneys. Mr. Bishop has received a nationally ranked Top 40 Under 40 Attorney award since 2017. Mr. Bishop has also been named a Rising Star by Super Lawyers. The American Institute of Personal Injury Attorneys has named Brian Bishop as one of The 10 Best Attorneys for Outstanding Client Services.
Home » FAQ Morelli Law » Medical Malpractice » How Do I Sue a Hospital for Medical Negligence?
The process for how you sue a hospital for medical negligence generally requires you to:
- Collect evidence of the hospital’s liability for your injuries, which may include testimony from a medical expert about the care you received
- Calculate the value of your damages
- File your lawsuit by the applicable legal deadline
A medical malpractice lawyer from our team can handle all of this for you. We can also make things easier by negotiating for damages or even taking your case to court.
Proving Negligence in a Medical Malpractice Case
In order to win a medical malpractice lawsuit against a hospital, you must be able to show that its staff caused your injuries. It is important to note that a bad outcome does not necessarily equate to medical negligence. For medical negligence to occur, a medical professional must:
- Have a provable legal responsibility to care for their patient
- Take actions that fall below the standard expected of them
- Cause a “serious injury,” as defined at ISC §5102, to their patient with these actions
What types of evidence do you need in order to prove these factors apply to your case? Our firm can help you collect all necessary forms of evidence, including the following.
Proof of Malpractice Damages
You will need to produce evidence of the damages you have suffered and their value to justify the compensation you are looking for. Types of evidence can include:
- Records and bills from your medical treatments
- Statements regarding your future treatment costs as determined by the medical experts we hire
- Documentation of lost income during your recovery period, including pay stubs or a statement from your employer
- Accounts of your pain and suffering or other non-economic damages
Medical Expert Testimony
The difference between what is and what is not medical negligence can be difficult to understand. This is why medical malpractice cases typically require medical expert witnesses to testify that:
- The care the victim received fell below a reasonable medical standard
- Another doctor in the same situation would have done something differently and prevented harm to the patient.
- The injuries you are suing over are more likely than not to have been caused or exacerbated by the liable party’s actions
We can determine which medical expert to hire based on the circumstances of your case.
A Medical Negligence Lawyer from Our Firm Can Help
If you are considering filing a medical negligence suit, an attorney from our firm can make the process smoother and less stressful for you. We may be able to collect evidence you otherwise would not be able to collect, thereby strengthening your case. Our team can also:
- Assess your case at no charge or obligation
- Hire a medical expert witness to testify on your behalf
- Submit all related paperwork correctly and on time
- Handle all communications with the other side
- Calculate how much your injuries are worth in monetary terms
- Negotiate with the hospital’s insurance company for a potential settlement
- Take your case to trial, if necessary
Your lawyer can also give you advice about your case, help you interpret the relevant laws and legal documents, and let you know what to expect throughout the process.
Can Any Personal Injury Attorney Sue a Hospital?
Medical negligence is a special subset of personal injury law. If you wish to sue a hospital, you need a lawyer with experience in medical malpractice cases. If your case meets the standard for medical negligence, you deserve to have someone experienced on your side.
Medical malpractice cases require deep knowledge of two of the most complicated sets of knowledge there are: medicine and law. As we mentioned, even lawyers need to hire medical experts who can testify about whether the care you received met the standards or not.
We Can Determine the Value of Your Case
Carefully reviewing the injuries you sustained and determining how much money you can collect for each is a vital part of the legal process. It may be emotionally difficult to revisit the circumstances of your injury, but our firm can help you to do so and to present an accurate assessment of how much you should sue for.
Examples of medical malpractice damages for which you could qualify include:
- Medical costs, including the costs of treating the malpractice injury
- Income you could not earn as you recuperated
- Lost employment, if you can no longer work at all
- Physical and emotional pain and suffering
- Loss of quality of life due to injury symptoms
- Temporary or permanent physical or intellectual disability
Meeting the Statute of Limitations in Your Case
Before you sue a hospital for medical negligence, it is important to know whether your lawsuit is timely or if you missed the deadline to sue.
Per CPLR §214-A, you have 2.5 years in which to file a medical malpractice lawsuit in New York. There are, however, some exceptions. Discovering an object left in the body long after surgery, for example, can extend the deadline to sue.
If you take too long to file your lawsuit and exceed the deadline, the judge assigned to your case could dismiss it, leaving you with no way to recover compensation for your damages. The sooner our team is able to start on your case, the more time we have to go over your options and build the strongest possible case.
How Do I Pay for My Lawsuit?
When you hire a lawyer to sue a hospital, they will do the job under a contingency agreement. This means you don’t have to pay them if you lose your case. This gives the lawyer additional incentive to do the best possible job on your behalf.
If you win your case, your lawyer will take a percentage of your final settlement as their fee. This could be done in a lump sum or in payments over time as part of a structured settlement.
Let Us Handle Your Medical Malpractice Case
If you were the victim of medical negligence in New York, Morelli Law Firm can help you sue a hospital for medical negligence. We make it easy to get started by offering free, no-obligation case reviews. To learn more about your potential settlement award and how to file, call our client intake team at Morelli Law Firm today or contact us online.
The Defense Department on Thursday will officially publish the rules governing how uniformed service members or their representatives can file a claim against the military for malpractice.
The new regulation, which will take effect 30 days after Thursday’s publication in the Federal Register, marks a significant step in service members’ or families’ ability to seek recourse for malpractice. An advance look was posted online Wednesday morning.
For decades, the Feres Doctrine — named for a plaintiff in a landmark 1950 U.S. Supreme Court case — has kept active-duty military personnel from suing the government over personal injuries they incurred as a result of their service. This made it difficult for service members to seek recourse from the military when their medical treatment was mishandled.
But the National Defense Authorization Act passed by Congress in December 2019 contained provisions to change that. Service members — or their representatives if they are dead or incapacitated — became eligible to file claims for personal injury or death caused by a military health provider in certain medical treatment facilities.
Bloomberg Government reported in February that troops had filed 227 malpractice claims that had yet to be adjudicated, with a potential total value of $2.16 billion. The Pentagon has not yet provided updated statistics.
The new claims process is in addition to the compensation provided under the military’s compensation system, which also covers combat injuries, training mishaps, motor vehicle accidents, or other deaths or disabilities in the line of duty, according to the Federal Register notice. It is separate from the Military Health System Healthcare Resolutions Program, which helps patients obtain more information about medical treatments that may have gone wrong, but is not an avenue for filing claims or legal matters.
There will be no judicial review of adjudicated claims, the Federal Register notice states, and their settlement will be “final and conclusive.”
There are some exceptions. Claims that challenge discretionary agency policies, known as the discretionary function exemption, cannot be considered, the notice states.
The combatant activities exception also applies, though the notice said that would probably occur only in “extremely unusual circumstances such as an attack on a military hospital.”
To be considered, medical malpractice claims must be for injuries that were “incident to service,” according to the register notice. For active-duty service members, this means “almost any injury or illness” that occurred from medical care received at a military treatment facility from a DoD health care provider would qualify.
The rules are stricter for reservists. A claim can be filed for reserve component service members only if it is in connection with personal injury or death that occurred while the member was in a federal duty status.
The new claims process is a last resort for those who have suffered malpractice; the notice states that claims are payable only if they can’t be settled or paid under any other law.
The Defense Department will pay claims under $100,000 directly to service members or their estates. But claims valued at more than $100,000 will be reviewed and then paid out by the Treasury Department.
Malpractice claims should be filed with the service member’s branch, the notice states. For the Army, that would be the nearest Office of the Staff Judge Advocate, the center judge advocate of the medical center where the alleged malpractice occurred, or with the tort claims division of the Army Claims Service at Fort Meade, Maryland.
Navy and Marine Corps claims should be filed with the tort claims unit of the Office of the Judge Advocate General in Norfolk, Virginia. Air Force and Space Force claims should be presented to the Office of the Staff Judge Advocate of the nearest Air Force base, or mailed to the Air Force Legal Operations Agency, Claims and Tort Litigation Division, at Joint Base Andrews in Maryland.
The new rules set a strict deadline to make claims. Service members must present their claim to the DoD within two years of when the alleged malpractice occurred, though the NDAA allowed service members whose malpractice occurred in 2017 to file claims in 2020.
Any written claim from a service member or authorized representative will suffice as long as it contains the basis for the claim, including the conduct that is alleged malpractice, the dollar amount requested for damages, and is signed by the claimant or their representative. Claims must include an affidavit when filed by an attorney or authorized representative, affirming they are authorized to do so on the service member’s behalf.
And unless the claim covers something that an ordinary layperson can recognize as malpractice, it must include an affidavit from the claimant saying he or she consulted with a health care professional who believes the military health care provider breached the standard of care and caused the alleged harm, according to the notice.
Because claimants have the burden of substantiating their claims, the notice states, they may also submit whatever information and documentation they think is necessary to support it. However, an expert opinion is not necessarily required at the time of filing, the notice adds.
The claimant must prove, by a preponderance of evidence, that the military health care provider on duty “had a professional duty to the patient involved and by act or omission breached that duty in a manner that proximately caused the harm,” the notice states.
The health care provider is required to exercise for the claimant the same level of skill, care and knowledge — based on national standards, not those of regions, states or localities — that are expected of those in their field in comparable clinical settings, it adds.
When calculating economic damages, the government will consider past medical expenses incurred, along with future medical expenses, lost earnings, loss of earning capacity, and compensation paid for someone to provide essential household services and daily living activities that the service member can no longer provide for him or herself, according to the notice.
Non-economic damages also include past and future pain and suffering, physical disfigurement, and loss of enjoyment of life, up to a total cap of $500,000.
Compensation that the DoD or Veterans Affairs Department has or will pay for the same malpractice harm will be deducted “so that the U.S. does not pay more than once for the injury,” the notice states. This could include pay and allowances while on active duty or active status, disability retired or severance pay, incapacitation pay, involuntary and voluntary separation pays and incentives, or death gratuities, among others.
The value of Tricare coverage, including Tricare for Life for a disability retiree, family or survivors, also could be deducted from malpractice damage awards.
There is no discovery process, the notice said, but claimants can obtain DoD records that are part of their personnel and medical records.
Anyone who wishes to file a comment has 60 days to do so.
— Patricia Kime contributed to this report.
Our Medical Malpractice Lawyers Explain Case Length Factors
Preventable medical errors are a leading cause of death in the United States. Depending on who you ask, medical errors kill an estimated 251,000 to 440,000 people in the U.S. each year. The famous British Medical Journal study puts the number of annual deaths at 251,000 while the Journal of Patient Safety estimates more than 400,000 patients die from medical errors each year. Patients affected by medical errors or their family members may be able to recover compensation for their damages by filing a medical malpractice lawsuit. Whether South Carolina law considers a medical error to be medical malpractice depends on the circumstances.
Our Rock Hill medical malpractice lawyers can answer questions you have about filing a lawsuit against a hospital or medical services provider. How long a medical malpractice case takes to resolve depends on the circumstances.
What Is Medical Malpractice?
Before we even begin discussing how long a medical malpractice lawsuit takes, it helps to know what medical malpractice is and is not. Medical malpractice occurs when a health professional provides medical services that are below the accepted standard of care for his or her profession. If a health provider’s negligent actions or inaction led to you or a family member suffering harm (damages), then you may be able to file a claim against the responsible medical provider.
Common reasons for filing a medical malpractice lawsuit include misdiagnosis, surgical mistakes, birth injuries, diagnostic errors, pharmacy mistakes and other types of medical errors.
The best way to determine whether you can file a medical malpractice lawsuit is to speak to a personal injury lawyer who has experience with medical malpractice cases.
How Long Will My Medical Malpractice Case Take?
How long your case takes depends on the circumstances. Medical malpractice cases generally involve a lot of evidence, and in many cases, the defendants have considerable financial and legal resources. However, this is also why you should be careful choosing a medical malpractice attorney.
Consider picking an attorney who has experience with medical malpractice cases and jury trials. Some defendants may refuse to settle and a jury trial may be necessary.
Your attorney can help you uncover and protect evidence that is important to your claim. Additionally, a medical malpractice attorney can negotiate your claim with the defendant’s insurance provider. Many medical malpractice cases settle out of court. If a settlement is impossible and it is necessary, an attorney can take your case to trial.
The entire process involved with filing motions and conducting discovery varies on a case by case basis. Some cases may resolve in a matter of years. What matters is that you receive the compensation you and your family need to recover.
What Does a Medical Malpractice Settlement or Jury Verdict Cover?
Medical errors can lead to serious damages, such as medical bills and lost income. For instance, if a medical error caused a significant brain injury, it may no longer be possible to work. A settlement or verdict may help cover:
- Medical bills and rehabilitation expenses
- Home modifications
- Lost income and loss of future earnings
- Pain and suffering (there is a cap on noneconomic damages for this type of case in South Carolina)
Many personal injury attorneys work with medical experts to help assess damages for their clients or to provide important depositions. Give yourself the best chance by picking an experienced attorney.
Contact Our Medical Malpractice Lawyers for a Free Consult
Questions about filing a medical malpractice lawsuit in South Carolina? Contact the Law Offices of F. Craig Wilkerson Jr. today to schedule a free consultation. You can schedule a free consultation by dialing (803) 324-7200 or by using the contact form on our site.
Home Blog Medical Malpractice Can A Relative Sue For A Death In A Medical Malpractice Case?
Posted on: May 11, 2022
Losing a family member due to medical malpractice can be devastating, affecting everyone in the family. After taking care of more immediate matters, you or another relative can likely sue for the death in your medical malpractice case.
However, only certain family members have grounds to take such legal action, and a lawyer with our firm can help you determine who is eligible.
Who Can Recover Compensation in a Wrongful Death Action for Medical Malpractice?
When a person loses their life due to medical malpractice, any of their immediate family members can file a wrongful death action against the responsible medical facility and recover compensation from them. According to Md. Code Ann., Cts. & Jud. Proc. § 3-904, a deceased person’s spouse, child, or parent can generally file a wrongful death action and recover compensation.
In this action, the relative can claim damages on behalf of other family members too. For example, the spouse could claim damages their children suffered. Anyone who receives compensation from the action is called a beneficiary, and beneficiaries can choose to participate in the action or not.
An extended family member may be able to file a wrongful death action if there aren’t any living immediate family members. However, this extended family member must be related to the victim by blood or marriage and must have been dependent on the victim. A lawyer from our firm can help you determine whether you or any other relatives could qualify as a beneficiary in your case.
For a free legal consultation, call 410-547-0202
How Can a Relative Sue for a Death in a Medical Malpractice Case?
Two ways in which a relative can sue for the loss of a loved one are:
Wrongful Death Actions
With a wrongful death action, a deceased person’s family member claims their own personal damages they suffered as a result of the loss of their loved one. The family member can also claim the damages of other family members.
A wrongful death action can help you and your family recover recompense for your loss and your related damages, and some of these damages can be ones you’ll incur in the future. So, filing a wrongful death action can help your family recover financially from your loss and support yourselves in the future.
With a survival action, a deceased person’s estate representative claims damages. These damages are any damages the deceased person incurred before they lost their life.
You may choose to file a survival action if your loved one had financial damages or if you believe your loved one suffered before they lost their life.
What Damages Can I Sue for in a Wrongful Death Case?
The damages you can claim depends on which kind of legal action you file. If you decide to file both wrongful death and survival actions, you’ll be able to claim your damages, as well as those of your family members and your deceased loved one. One of our firm’s lawyers can help you make your decision, list your damages, and explain them to the medical facility’s insurance company or a jury.
In a wrongful death lawsuit, you can claim the following damages and possibly others:
- Loss of companionship and loss of consortium
- Loss of financial support
- The child’s or children’s loss of mentorship and emotional support
- Funeral or burial expenses
- Post-mortem medical bills
With a survival action, you can claim:
- Medical expenses your loved one had before they lost their life
- Wages your loved one wasn’t able to earn
- Any pain and/or suffering your loved one experienced
- Any other damages related to your loved one’s estate
How Much Time Do You Have to Sue for a Death in a Medical Malpractice Case?
In each state, there are deadlines for filing wrongful death lawsuits. In Maryland, this deadline is generally three years from the date of the decedent’s death.
Your attorney can help you meet your filing deadline, but make sure you get in touch with one quickly. Failing to adhere to it could result in the court throwing your case out of court. It will then be your responsibility to make up the related costs.
Contact Brown & Barron to File a Suit for a Death in a Medical Malpractice Case
If you lost a loved one to medical malpractice, you or a relative may be able to sue the other party. You and your family deserve compensation for your damages. Also, taking legal action may help you get a sense of closure after suffering such a tragedy.
With one of the wrongful death attorneys on your team, you won’t have to worry about legal matters, so you’ll be able to focus on family matters. You can learn more about our services in a free consultation, so get in touch with Brown & Barron today.
Contact Brown & Barron online today to schedule a free case review.
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Table of Contents
When a patient is injured by a doctor (or another medical professional) who fails to perform his or her medical duties competently, this is known as medical malpractice. Medical malpractice laws differ from state to state, from when you must file your case and when you must inform the doctor in advance.
Like all civil cases the Medical malpractice lawsuits, have a time limit. Law is known as a “statute of limitations,” which sets the deadline. These laws have been passed in every state, with various deadlines depending on the type of case you choose to file.
If you think you have a case for medical malpractice against a doctor or another health care provider.
One of the first things you should note is that every state has enacted laws restricting the amount of time you have to file a civil lawsuit.
The deadline varies by state, but most are between two and four years, with outliers on either end. You must bring any medical malpractice claim within two years of the health care provider’s medical negligence in a state with a two-year statute of limitations on medical malpractice lawsuits (such as in Texas or Florida).
What Happens If The Complaint Isn’t Filed on Time?
The Court may extend the three-year limitation period on medical malpractice and personal injury cases. From the time of negligence. This ensures that Court proceedings must be started within three years by filing a claim form with the Court. However, in some cases in which the three-year time is given, but even after that, the Court does not proceed with the case.
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The Court may refuse to allow you to bring the claim if legal proceedings are not started in compliance with the above time limits. Nothing in the law prohibits a Claimant from filing a lawsuit. However, once the limitation time has passed, Defendant is likely to file a complaint with the Court to have the claim dismissed.
Is it possible to sue for medical malpractice 20 years later?
Yes, the short answer is yes, and most states offer you two or three years after malpractice to file a lawsuit.
Is there a time limit for filing a case for medical malpractice?
Most medical malpractice claims must be made within one (1) year of the date the patient discovered or should have discovered their injuries, according to California law (Code of Civil Procedure 340.5).
What is the average medical malpractice settlement?
The average amount paid out of the Court is $425,000.
Factors Affecting the Timeline for Medical Malpractice Settlements:
When a medical malpractice case is complex, the longer it can take to resolve. Cases get more complicated due to the following factors:
- medical issues that are complex or novel
- legal problems that are complicated or novel
- a large number of witnesses (including medical experts) and
- several health-care providers, each of whom may be held responsible for medical malpractice
Does Settlement Time Affect a Medical Malpractice Lawyer’s Fees?
In most cases, a medical malpractice attorney will accept a lawsuit on a contingency fee basis. This means the lawyer isn’t paid until the case is settled or a decision is returned in the plaintiff’s favor. It is theoretically possible for an attorney to accept a lawsuit on Monday and get an insurance provider to agree to a $75,000 settlement on Tuesday. In this case, an attorney working on a contingency fee basis for a third of the award would have earned $25,000 in one day.
Who Will Be Held Liable for Your Damages and Injuries?
A surgeon does not work on his or her own. More than one person may be responsible for the injuries and damages.
Several defendants can be named in a medical malpractice lawsuit, including:
- Attending physicians
- Nurses who work in surgery
- Anesthesiologists (Doctors)
- Nurse anesthetists
- Chief of Staff
- The administrator of a hospital
If your injury or illness was caused by substandard treatment in a hospital, surgery center, or private medical office, you might seek compensation.
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Over 71,000 physicians practice medicine in the state of Florida, including in Tampa. Each year, over 7,000 doctors pay a medical malpractice claim of some type. Other types of healthcare providers also face malpractice claims, including hospitals and other types of medical clinics.
The consequences of a medical malpractice can be devastating for a patient. A person who thinks he or she is the victim of medical negligence likely has many questions about how to pursue a medical malpractice lawsuit. Here are few things you’ll need to know about medical malpractice in Tampa, FL.
Understanding Medical Malpractice in Tampa, FL.
There are many misconceptions when it comes to medical malpractice. The presumption of many Florida residents is that if the final result of a medical treatment or procedure is not favorable, a doctor or another healthcare provider has made a mistake, done something wrong. In fact, guaranteeing a positive outcome for any kind of medical treatment or procedure, even one considered minor, is impossible.
The question is not whether something went badly in a medical treatment or procedure, but rather did the doctor exercise a reasonable duty of care in the treatment of a patient. The duty of care can be summed up as a consideration of whether a doctor provided appropriate care under the circumstances. An examination is made of what an appropriately trained doctor reasonably would have done under the circumstances.
Only if there was a deviation from the duty can a person lay the foundation for making a malpractice claim against a doctor, or other healthcare providers. In addition, the breach of the duty of care owed to a patient must be what legally is called the proximate cause of the injuries sustained by that individual.
Proximate cause is a term used by lawyers to establish a legal connection between the breach of a doctor’s duty of care and an injury sustained by a patient. The injury a person complains of cannot have been caused by something else, even if a demonstration can be made that a doctor deviated from an established standard of care.
Common Types of Medical Malpractice Cases
A person contemplating a medical malpractice case likely has a number of questions about what actually constitutes medical malpractice in a real-world sense.
Surgical errors come in many different forms. A surprising number of surgical error cases involve a surgeon performing an incorrect procedure. Although something of a cliché, operating on the wrong or leg illustrates a surgical error involving an incorrect procedure.
Another example of a surgical error case that also occurs with surprising frequency is leaving medical instruments in a patient’s body at the conclusion of a surgery. Yet again, a long-used cliché about a sponge left behind by a surgeon actually does illustrate the point of what can happen in regard to certain types of surgical error cases.
Misdiagnosis and Delayed Diagnosis Cases
A common type of medical malpractice case involves a doctor misdiagnosing a patient. In that situation, a doctor is negligent in failing to properly diagnosis the disease, condition, or ailment afflicting a patient. Under the circumstances prevailing at the time the doctor in question made an incorrect diagnosis, a physician using reasonable care would have diagnosed correctly.
A delayed diagnosis represents a related type of medical malpractice. In this scenario, a doctor eventually arrives at a proper diagnosis of a patient. Nonetheless, a proper diagnosis of not, the doctor does not make it until an inordinate amount of time lapsed. Such a delay in making a proper diagnosis typically results in an unnecessary aggravation of a patient’s condition.
Improper or Incomplete Medical Advisement
Medical advisements are crucial when it comes to a patient giving truly informed consent to a medical procedure or treatment, including surgery. Unfortunately, time and again, health care professionals undertake the patient advisement process in a manner that oftentimes can be considered pro forma at best.
A patient has a right to have clear and readily understandable information about a proposed medical procedure or treatment before providing his or her consent. This includes an appropriately detailed explanation of the risks associated with a procedure or treatment.
If an appropriate advisement is not provided to a patient, and the patient suffers a side effect from the procedure or treatment, he or she may be able to make a malpractice claim if he or she was not properly advised of the risk.
Questions About Medical Malpractice in Florida
In addition to understanding different types of medical malpractice cases, a person likely has other questions relating to Florida medical malpractice.
What is the Statute of Limitations?
The statute of limitations is a strict Florida law. The statute of limitations sets a deadline by which a person must file a medical malpractice case. A medical malpractice lawsuit must be filed within two years of the date the injury or incident is discovered, or reasonably should have been discovered. Missing the deadline precludes a person from filing a Florida medical malpractice lawsuit.
For more information see the 2016 Florida Statutes for Medical Malpractice and Related Matters.
Is a Lawyer Necessary for an Insurance Claim?
In a word, yes. Insurance companies do everything in their power to reduce the amount of money paid in medical malpractice cases. In the end, they make money by reducing the amount paid to injured Floridians. Experienced medical malpractice lawyers in Tampa understand how to take on an insurance company to obtain the compensation an injured person needs.
Why Choose Jack Bernstein in a Tampa Medical Malpractice Case
Experience matters when it comes to choosing Tampa medical malpractice lawyers. Jack Bernstein has over 30 yeas of experience in representing clients injured due to the negligence of doctors and other healthcare providers. In addition, he has represented Florida families who have lost loved ones due to the negligence of doctors and other involved in the healthcare industry.
In addition to a wealth of experience, Jack Bernstein is known for his compassionate representation of clients, individuals who oftentimes truly are at the lowest points in their lives. He doesn’t shuttle of his clients to others and is always the primary connection during all phases of a medical malpractice case. He understands how important it is to bring a medical wrongdoer to justice.
Jack Bernstein does not charge a fee for an initial consultation with a person injured because of the negligence of a doctor or other type of healthcare provider. During an initial consultation, he provides a preliminary evaluation of a case and addresses any questions a person might have about the medical malpractice claim settlement and lawsuit processes. At the Jack Bernstein, Injury Attorneys law firm, no fee is charged a client unless and until a settlement or judgment is obtained.
The last thing someone suffering from an injury or illness expects is to suffer even further due to the negligence of their healthcare provider. Fortunately, when your caregiver makes an inexcusable mistake, you can hold them accountable by pursuing an Illinois medical malpractice claim.
However, you may not have any idea how to launch a personal injury claim or even whether you have a viable claim. Below, we go into further detail about some of the most common types of medical malpractice cases in Illinois and other legal details you need to know before proceeding with your claim.
Common Types of Medical Errors in Illinois
Many patients are informed of the risks associated with a certain medical procedure or treatment, but there is a big difference between standard risks and issues that arise due to medical negligence . For a medical malpractice lawsuit to be successful, you must prove that the medical standard of care has been breached.
To put it more simply, a breach in the standard of care would be a mistake or error that another reasonable medical professional would not have made. Some of the most common types of medical errors to sue for in Illinois include:
- Failure to treat
- Failure to provide follow-up care
- Surgical errors
- Anesthesia errors
- Birth injuries
- Medical product liability
- Delayed diagnosis
If you have suffered an injury or illness due to one of the mistakes listed above, or some other medical error, you may be able to file a civil lawsuit against your healthcare provider and seek maximum compensation for your suffering.
Statute of Limitations for Illinois Medical Malpractice Lawsuits
Those who are interested in having their attorney file an Illinois medical malpractice lawsuit on their behalf will need to act quickly. The statute of limitations for medical malpractice claims in Illinois is only two years. This means you have just two years from the date of the medical error to fil a claim.
Although this may seem like more than enough time, building a compelling case and gathering the necessary evidence takes time and effort.
Making sure to get your claim filed before the statute of limitations expires is crucial, as failure to do so will surely result in the dismissal of your lawsuit. When this happens, you will lose the chance to not only be awarded compensation for your losses, but also to bring the liable party to justice.
Meet with an Illinois Medical Malpractice Lawyer
If you have reason to believe that you may be a victim of medical negligence and are interested in learning more about your legal options, schedule a free, no-obligation consultation with an experienced Illinois medical malpractice lawyer at Lane & Lane, LLC .
To get started, call 312-332-1400 or complete the convenient contact form below.
Shereen Lehman, MS, is a healthcare journalist and fact checker. She has co-authored two books for the popular Dummies Series (as Shereen Jegtvig).
Before selecting a doctor, you may want to make sure that they haven’t been disciplined in the past by their medical board for unsafe behavior. You make also want to make sure that they haven’t had any malpractice suits filed against them. Malpractice suits may be filed if a patient experiences injury, harm, or death due to inappropriate medical care.
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This article explains how to find out if your healthcare provider has ever received complaints or has had a malpractice lawsuit filed against them.
How Do I Find Out if a Doctor Has Complaints?
Finding out if your healthcare provider has ever received any complaints may be a bit tricky. While you may be able to see some ratings or disciplinary information on a healthcare rating website, it may not be complete or current. In some cases, it is up to the healthcare provider to self-report problems, which some may avoid doing.
How Do I Do a Background Search on a Healthcare Provider?
It may take some time to search for information on a healthcare provider, so don’t be discouraged if you don’t get answers immediately. In some cases, you may need to speak with someone on the phone if you can’t find the answers online. To do a background medical search:
- Go to the Federation of State Medical Board’s Physician Data Centerto check the healthcare provider’s basic information. This includes education and board certifications, which are additional exams that some doctors take to prove their specialty knowledge. Other information may include what states an active license is maintained and any actions against the healthcare provider.
- Check the state’s medical licensing board for your state and anywhere the healthcare provider has practiced using the American Medical Association Doctor Finder. If you find a healthcare provider’s license has been suspended, that generally means that there has been an actionable offense.
- Do an online search. Place quotation marks around the healthcare provider’s name and follow this with keywords like “malpractice,” “lawsuit,” “sanction,” “complaint,” or “suspension.” Start by using only one keyword at a time. You can use more as you widen your search.
Remember that there may be more than one healthcare provider with the same name, so cross-reference whatever information you find.
It is important that you contact every state medical licensing board where the healthcare provider has practiced, not just your own. Malpractice suits and disciplinary actions do not always get transferred from one licensing board to the next.
How Do I Make a Qualified Judgment When Selecting a Doctor?
Keep in mind that evaluating a healthcare provider based on their malpractice track record or ratings may not provide the whole story. For example, some rating websites may indicate that a surgeon is “successful.” However, some surgeons, in order to keep their ratings high, will not accept high-risk patients. A record that shows a higher failure rate doesn’t always mean that a healthcare provider is “less successful.”
The same may apply to a malpractice suit. As much as a malpractice suit may be a red flag, it doesn’t necessarily mean that it was justified. It is not unusual for a suit to be filed for a death or injury beyond a healthcare provider’s control.
Try to be objective and focus on finding the best healthcare provider, surgeon, or specialist for your needs and condition. Don’t hesitate to ask a healthcare provider about a malpractice suit or other action you may find.
Keep in mind that ratings from a website, or even a filed malpractice suit may not necessarily reflect a healthcare provider’s skills or the level of care given to previous patients. Sometimes low ratings and malpractice suits are filed for reasons beyond a provider’s control.
When searching for a healthcare provider, you may want to see if they have ever received any complaints or have had any malpractice suits filed against them. To search for this information, you can use specific keywords, as well as certain reputable websites.
While found information may be helpful, keep in mind that it may not accurately or fully reflect the healthcare provider’s skills or the circumstances around the complaint or lawsuit.
A Word From Verywell
Upon completing a background search, don’t be disappointed if you end up with little information. It may mean that the healthcare provider has a clean record, or it may be that an infraction has been removed.
You can always ask your healthcare provider directly if they have had a malpractice suit filed against them. Be respectful and follow your gut when it comes to finding the best healthcare provider for your needs.
Frequently Asked Questions
A medical malpractice suit may be legally filed against a medical professional who has caused an injury or death due to insufficient levels of care. These lawsuits may be filed against an individual or an institution, such as a hospital.
Three things that must be proved in a malpractice suit:
- That the treatment given was not consistent with the standard of care
- That the patient suffered an injury as a result of inappropriate treatment
- That the injury resulted in significant loss or other difficulties
All medical errors should be reported to the state’s medical board. The board will provide you with details as to what is needed for the complaint, which can vary by state.
Once a malpractice report is filed, the healthcare provider or hospital and associated insurance company will be contacted by the state medical board. If there is evidence of malpractice, you may be contacted by the insurance company about a settlement. However, filing a report does not mean you will get a response, particularly if the board determines there is no evidence of negligence.
You would need to hire a malpractice attorney. A malpractice attorney can advise you if a malpractice claim is actionable and assist you with filing a report with the state medical board.
Created byВ FindLaw’s team of legal writers and editors | Last updated October 02, 2019
The legal concept ofВ medical malpracticeВ is not limited to the conduct of medical doctors but applies also to anyone in theВ scope of employment, such as nurses, anesthesiologists, health care facilities, pharmaceutical companies, and others that provide health care services.
The main thrust of aВ medical malpracticeВ suit isВ proving faultВ that leads toВ personal injuryВ — often by theВ employer’s liabilityВ to theirВ employee’s actions, such as a doctor or someone else directly related to medical care making a poor decision. Sometimes other entities, such asВ parental liabilityВ orВ contributory negligence, are part of theВ injured person’s case and can be sued in theВ medical malpracticeВ claim.
Hospitals are corporations that are either public or private entities. In the context ofВ medical malpracticeВ actions, hospitals can be held directly liable for their own negligence, and can also be held “vicariously” liable for theВ negligentВ actions of anВ employee.В Vicarious liabilityВ means a party is held responsible not for its own negligence, but for the negligence of another.
A hospital’s medical staff will consist of licensed physicians and other licensed health care providers, such as nurses, physician’s assistants, and nurse practitioners. In hiring its medical staff, a hospital must make reasonable inquiries into an applicant’s education, training and licensing. If a hospital fails to make reasonable inquiries regarding a member of its medical staff, it might be held liable under the “corporate negligence” doctrine for negligent supervision or retention, if the staff member’s negligent care injures a patient. A hospital might beВ held liable for its own negligenceВ where, for example, it fails to investigate the credentials of an attending physician before granting him/her privileges at the hospital, or where it allows a physician whom it knew, or should have known, was incompetent, to treat patients at the hospital.
Hospitals are also required to ensure that there is a sufficient number of registered nurses on duty at all times to maintain quality patient care. A hospital that fails to do so may be held liable for injuries to patients resulting from a nursing shortage. Another area of potential liability arises when a hospital’s employees fail to follow the orders of a patient’s private attending physician. Conversely, if a hospital employee finds a private physician’s treatment plan to be clearly contraindicated, but fails to make a reasonable inquiry of the physician as to the treatment plan, the hospital could also be found liable.
When a hospital employee’s malpractice injures a patient, the hospital itselfВ may be held vicariously liableВ under theВ legal doctrineВ of “respondeat superior.” Under this doctrine, an employer may be held liable for theВ negligent actsВ of its employee, if the employee was acting within the scope of his or her employment when theВ negligent actВ or omission occurred. This doctrine is very important to plaintiffs inВ medical malpracticeВ cases because it helps ensure there will be a financially responsible party to compensate an injured plaintiff.
In some situations, health care providers such as physicians are consideredВ independent contractorsВ rather than hospital employees, and the doctrine of “respondeat superior” will not be applicable. What this means is, if a doctor or other health care professional is anВ independent contractor, and commits malpractice while treating a patient in a hospital, the hospital cannot be held liable for the doctor’s negligence. In certain situations, a hospital may be vicariously or directly liable for the acts or omissions of contractors it retains to operate emergency rooms and outpatient facilities.
In some cases, aВ pharmaceutical manufacturer may be liableВ where a drug caused a patient injury, but only if the manufacturer failed to warn physicians of the drug’s potential side effects or dangers.
A pharmaceutical manufacturer’s primary duty is to physicians. Thus, a manufacturer generally will not be liable for a patient’s injuries, as long as it adequately informed the physician of all risks associated with a particular drug. As to the ultimate consumer, a pharmaceutical company only owes a duty to ensure that the medication it manufactures will be reasonably safe when used as intended. To ensure a drug’s safety, the manufacturer must research the drug’s possible side effects and risks before putting it on the market. If the pharmaceutical manufacturer fails to adequately warn a physician of a drug’s dangers, however, the drug becomes what is known under product liability law as “unreasonably dangerous,” and the manufacturer might be held liable for the failure to provide proper warnings.
In most cases, the prescribing physician is considered a “learned intermediary,” which means that because of his or her superior medical knowledge, and assuming he or she has been given adequate information from the manufacturer, he or she is in the best position to determine whether a particular drug or device is appropriate for a patient. Thus, the physician has the primary duty of advising the patient of the risks and side effects of a medication or medical device he or she prescribes.
Get a Claim Evaluation from aВ Medical MalpracticeВ Attorney
Got aВ medical malpracticeВ case, but unsure who is liable and who you should sue? A qualifiedВ medical malpracticeВ attorney can help you answer these questions. A skilled attorney can discuss the strengths and weaknesses of your case and advise you about who will make the best defendant(s). A great first move is to get aВ claim evaluation from aВ medical malpracticeВ lawyer.
Medical errors claim the lives of more than 250,000 patients every single year. In fact, it is the third-leading cause of death behind heart disease and cancer. Sadly, negligent doctors and healthcare professionals caused many of these errors. When a serious medical injury results in harm, patients are often left wondering what they can do. Fortunately, South Carolina law allows patients to sue for medical malpractice. However, medical malpractice lawsuits are complex and notoriously difficult to win. As such, it is important that injured patients ensure that they are meeting the appropriate filing deadlines. If you fail to meet these deadlines, then you may not be able to sue for medical malpractice in South Carolina. Thus, you should obtain the services of an experienced medical malpractice lawyer from the start.
What Is the Statute of Limitations for Filing a Medical Malpractice Lawsuit in South Carolina?
Every state treats medical malpractice claims differently. In South Carolina, injured patients only have a specific amount of time to sue for medical malpractice. This is known as a statute of limitations. South Carolina Code of Laws section 15-3-545 says that this kind of case must be filed “within three years from the date of the treatment, omission, or operation giving rise to the cause of action or three years from date of discovery or when it reasonably ought to have been discovered, not to exceed six years from date of occurrence.” If you miss this deadline, then you most likely cannot file a lawsuit to collect damages.
Unfortunately, injured patients spend a large amount of this time trying to recover. They may struggle with rehabilitation and life after their injury. For this reason, it is important to contact an experienced Rock Hill medical malpractice attorney. Your attorney can ensure that you do not miss any critical deadlines. He or she can also investigate your incident and gather the evidence needed to win your case during this time.
Proving Medical Malpractice in South Carolina
In the state of South Carolina, injured patients can sue for medical malpractice. Yet, in order to have the best chance of success, your attorney must clearly establish the following:
- The healthcare professional owed you a duty of care
- He or she breached this duty of care and was negligent
- The healthcare professional’s negligence caused the injury
- The injury you suffered led to specific damages, such as pain, suffering and medical bills
Yet, just because you may be unhappy with the care you received or the outcome of your surgery, does not mean medical malpractice occurred. Even adverse events and complications are not always the result of medical malpractice. In order to win your case, your attorney must show that the doctor acted negligently. There must be a clear deviation from the acceptable standard of care. This is best shown by having a medical expert testify on your behalf.
Seeking Damages After a Medical Error
Finally, if you can prove that the medical professional acted negligently, then you have the option of recovering damages. However, there are medical malpractice claim caps in South Carolina. For example, South Carolina law caps noneconomic damages at $350,000 when the claim is against a single health care provider. When you file a lawsuit against multiple health care providers, you can seek up to $1.05 million in noneconomic damages.
Your attorney can help you sue for both economic and noneconomic damages.
- Medical bills
- Rehabilitation costs
- Lost wages
- Loss of future earnings
- Future medical treatment
- Long-term care
- Pain and suffering
- Emotional distress
- Loss of consortium
- Loss of quality of life
Contact Our Rock Hill Medical Malpractice Lawyers
Did you suffer a medical injury? Do you believe that your doctor was to blame for the injury and your suffering? At the Law Offices of Wilkerson, Jones & Wilkerson, our Rock hill medical malpractice lawyers know that a medical injury can cause significant harm to patients and their loved ones. We believe in helping injured patients put their lives back together. We also know how to hold negligent doctors and medical professionals accountable. Call us today at (803) 324-7200 or fill out our confidential contact form for more information.
How to Write a Letter of Intent to Sue Medical Malpractice (With Free Samples)
The truth is that no man is infallible and certainly doctors are not, so if you have been injured or faced with medical negligence due to medical malpractice and intend to file a claim with an insurer, it is pertinent to write the physician or the facility the letter of intent to sue. This will help you to claim for medical practice which you would be entitled to some compensation this letter of intent will be very important as the negotiations of the claim will be concentrated on the details that were disclosed in the letter. The whole letter of intent to sue idea is to be able to settle the medical malpractice case to avoid approaching the court if need be. So if the case needs to be settled by everyone involved then the first step should be writing the letter of intent to sue for medical malpractice.
So letter to intent to sue medical malpractice which is otherwise known as the demand letter is a notification sent to a defendant ( the physician or the insurance company) about a pre-suit letter as a condition to filing a lawsuit with the court. The letter will help you detailed all your injuries and also state the need to be compensated. You would be able to summarize the whole encounter you had with the physician concerned, described how you were injured through the physician’s negligence and how such has impacted your life. The truth here is that with a case of claim like this, it is the physician’s insurance company you would be dealing with and most insurance companies do not like to oblige in situations like this. it is a lot better to use an attorney to write your letter of intent. The attorney will be able to write them appropriately and make your case go a lot smoothly but you can still write on your own if you can’t hire one.
Writing a good letter of intent to sue medical malpractice needs to be written in a very clear and purposeful manner as such you need to get all the right information that will help with argument into it. To write an effective letter you would need to employ the below points to help you achieve your aim.
- Start your letter with a complete details of your name, date of birth , the date of the incident and the name of the party responsible for the losses
- Write your letter to be purposeful and establish the fact that your physician or hospital used directly caused your injuries
- Give a summary of all the relevant facts, state what led to the injury and how you came to that conclusion
- You can give detailed information on what really transpired, state the most injury sustained and state the injuries that might be long term. You can also raise the issue of the intangible damages that have impacted your life.
- Then mention the treatments that you receiving at the moment
- the evidences that were discovered during your investigation. These are what will be used as back up to your demands
- You can go ahead to list the damages and the amount you need for them
- Then you can end your letter with an attention grabbing demand. Give a final summary of all facts and demand for a compensation you think you deserve
Below are the sample letter of intent t sue for medical malpractice
567 miracle Mile Street,
456 Lawson estates, Mary Land
Re; Dr. Josh Mark
Claimant: Ryan. B. Kelly
Date of loss: 12 th May 2021
For settlement purposes only
To reply to our past discussion on 3 rd june, please accept this letter as an official demand for settlement in this medical negligence case.
I, Ryan Kelly was a patient of your insured client Dr. Josh Mark on 12 th may, I presented to the doctor symptoms of tightness in my chest, lightheadedness and fatigue. I stated during the visit to the doctor that I have had the persisted symptoms for about 3 months before visiting him. now, against medical routine check, the doctor didn’t examine me and later sent me home after just speaking to me in about 10 minutes. He failed to perform any blood pressure test or check my chest.
On the 28 th of may , I began to experience severe tightness in the chest and pains too. Due to this I was reached by ambulance to the state general hospital Sacramento where I was discovered that I suffer a great heart attack and I got admitted for emergency bypass surgery and given prescription for my heart condition.
I was unable to work for about 3 months trying to recover from my surgery which have cost me my wages. Though I have recovered from the heart attack but I still need physical therapy once every 3 months. The expenses I have incurred include the following:
The recovery room$500
Bypass surgery $2000
This negligence of your client has caused a lot of harm to me, as a result I demand a compensation for both general damages and medical malpractice to the tune of $10,000. Anticipating your response within 30 days
3456 Napoli road
Basehor insurance company
456 Greenland estates
Re: Dr. Leo Lawson
Claimant: Sarah. Raymond
Date of loss: 1 st April, 2021
For settlement purposes only
This letter of intent is coming your way to fulfill the words of our last discussion of 10 th may, 2021. So please accept this letter as a official demand for the settlement in the above case.
The factual summary
Mrs. Sarah Raymond was a patient at your insured hospital, Dr .L Lawson on the10th of March 2021. Mrs. Raymond presented to Dr Lawson symptoms of stomach tightness and incessant cramps. She had told him during the visit that she has been having the symptoms for about 4 days before visiting the hospital. Against the routine check protocol, Dr. Lawson didn’t examine the vital areas of Mrs. Raymond before sending her home. He failed to examined her stomach or provide medications to ease the pains
On March 13 th , Mrs. Raymond began to experience severe pains which lead to huge bleeding. She was rushed to a nearby private facility where it was determined she was experiencing a threatened abortion and needed to be excavated. She was battling with her life and she lost the baby. During this period she had to stop work not just that her body was trying to recover but because she was also emotional down grieving her baby that would have lived if not for the negligence of your client.
The expenses incurred during this include $1000 for the evacuation, $500 doctor fees.$450 prescriptions totaling$2000
This issue has caused her a whole lot and at this point we are demanding a compensation of $12000. So we would be expecting your response in the day 12 days. Thank you
Percy Richie Esq.
The fact remains that a letter of intent to sue is an essential document as such need to be detailed enough with the right language to win a claim. The truth is that a medical malpractice claim is always very difficult to negotiate. This is why you would have to put in all the necessary information to have efficient one. You have the writing guidelines and the samples as outlined above, you would need to adopt them when writing for a client or for self.
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Suffering from medical malpractice is a life-altering and oftentimes devastating experience. If you believe that you are the victim of medical malpractice, you may desire to sue the doctor, hospital or other health care provider who harmed you. A medical malpractice suit is an extremely complicated type of lawsuit. However, as is the case with all other types of civil cases, you do have the legal right to bring such a case on your own and without legal representation. Initially, you need to understand how to file and start a medical malpractice suit on your own.
Obtain a medical assessment from a reputable physician that delineates the injury or damage you suffered as a result of the alleged medical malpractice. The assessment needs to be in writing.
Draft a demand letter to the health care provider you believe is guilty of malpractice. The laws in many states actually require that you make a reasonable effort to attempt to settle a medical malpractice claim before filing a lawsuit.
Set out in the demand letter the general facts surrounding your allegation of malpractice.
Make a specific demand setting forth the dollar amount you will accept from the health care provider in order to avoid undertaking further legal action.
Obtain from the court clerk in the county in which you reside a standard petition form. If the health care provider elects not to enter into a settlement with you and does not respond affirmatively to your demand, the next step is filing suit.
Complete the petition form. You insert information about the parties to the case (you and the health care provider) and the basic facts giving rise to your claim. You also itemize the injuries and damages you suffered because of the malpractice. These injuries and damages include such items as medical bills, lost wages, future medical expenses, as well as pain and suffering.
File the petition with the court clerk. The filing starts the court proceedings.
Request that the court clerk direct the sheriff to serve the petition on the health care provider you are suing.
- Keep in mind that if you pursue a medical malpractice case without legal representation, you will be held to the same standards as an attorney. Overall, a judge is going to hold you to the same standards of practice and procedure required of an experienced medical malpractice attorney. Therefore, if you make a mistake in preparing or proceeding with your case, you face sanctions from the court — including a dismissal of your lawsuit.
- Although you legally can file your own medical malpractice suit, seriously consider hiring an attorney. There are lawyers who specialize specifically in medical malpractice cases. The state and local bar associations maintain directories of attorneys in different areas of practice, including medical malpractice. Contact information for these organizations is available through the American Bar Association.
- “Medical Malpractice Law and Litigation”; Beth Walston-Dunham; 2005
- “Medical Liability in a Nutshell”; Marcia Boumil, Clifford E. Elias & Diane Bissonette Moes; 2003
- Find Law: Medical Malpractice
- Yale New Haven Medical Center: The Four Elements of Medical Malpractice
- American Bar Association: Directory of State and Local Bar Associations
- Although you legally can file your own medical malpractice suit, seriously consider hiring an attorney. There are lawyers who specialize specifically in medical malpractice cases. The state and local bar associations maintain directories of attorneys in different areas of practice, including medical malpractice. Contact information for these organizations is available through the American Bar Association.
- Keep in mind that if you pursue a medical malpractice case without legal representation, you will be held to the same standards as an attorney. Overall, a judge is going to hold you to the same standards of practice and procedure required of an experienced medical malpractice attorney. Therefore, if you make a mistake in preparing or proceeding with your case, you face sanctions from the court — including a dismissal of your lawsuit.
Mike Broemmel began writing in 1982. He is an author/lecturer with two novels on the market internationally, “The Shadow Cast” and “The Miller Moth.” Broemmel served on the staff of the White House Office of Media Relations. He holds a Bachelor of Arts in journalism and political science from Benedictine College and a Juris Doctorate from Washburn University. He also attended Brunel University, London.
It may not hit you right away that the losses you suffered because of a medical injury were due to medical malpractice. Your doctor may be a great doctor—except that this time, they’ve left you severely injured and suffering.
The problem is, many malpractice victims don’t know when to sue for medical malpractice. You may be lost yourself, and now you’re worried about whether you’ll receive compensation at all for your losses.
If you’re not sure when to sue, you may need a lawyer’s guidance on your medical malpractice claim. Making the right call for your claim can be tough. But if you wait too long or make a mistake, it could be the end of your claim. Reach out to a medical malpractice injury attorney today by calling 888.HAWK.LAW or use our contact form before you miss your window to sue.
Medical Mistakes vs. Medical Negligence
You may need to determine fast whether you have grounds to sue before you file any paperwork. Not every medical injury or worsened illness is caused by negligence—sometimes, your doctor has done all they can to prevent your injuries.
Medical negligence means your doctor was careless enough with your safety to cause an injury. For example, a doctor treating you for one illness when you really had a different one isn’t necessarily grounds for medical malpractice. If your doctor neglected to test you for other possible conditions before treating you, though, they could be held responsible for your losses.
You Don’t Have Much Time to Sue in South Carolina
When dealing with medical malpractice, it may be better to act sooner rather than later when it comes to suing. Your time limits in South Carolina could affect you, and the rules can get complicated fast.
Call a SC Medical Malpractice Attorney for Guidance
When you’re seriously injured by a medical professional, it can be such a shock to have gone through this that you may not be sure what to do or how to respond. You may even be unsure when to sue for medical malpractice.
At HawkLaw, PA , we understand that deciding when you’re ready for a medical malpractice claim is tough. Having a South Carolina medical malpractice lawyer on your side can make that easier, though. We can even get started with a free consultation* once you call 1-888-HAWK-LAW (429-5529) or fill out the online contact form below.
In any personal injury case, the plaintiff must prove that the defendant was negligent, or failed to use reasonable care. In the context of medical malpractice, when a healthcare provider fails to use the duty of care they owe all patients, you may have a case.
Medical malpractice claims in North Carolina can encompass a variety of different actions for individuals injured by a medical professional’s negligence. Some common examples of medical malpractice include:
- Prescription error
- Error in administration of anesthesia
- Mistake during childbirth that harms the mother or baby
- Failure to diagnose (heart disease and cancer are the most common) or misdiagnosis
However, just because a person suffers an injury while under the care of a medical professional does not automatically mean that patient has a medical malpractice suit against the doctor. All medical malpractice claims must have the same basic components to succeed. These require a plaintiff to prove in court that:
- The medical professional defendant had a duty, or standard of care, to you, the plaintiff
- The defendant failed to meet that duty
- The mistake caused the plaintiff’s injury
- The injury/the medical professional’s negligence damaged the plaintiff
Below is an explanation of each of the elements you must prove to succeed in a medical malpractice claim in North Carolina, and what you can be compensated for if you do.
Duty/Standard of Care
Medical professionals owe their patients what is called a standard of care, and you deserve to be compensated for failures to meet that standard of care that injure you.
What the standard of care is in any specific medical malpractice context depends on a number of factors. These include:
- The standards of practice used by similar members of the same healthcare profession, as discussed above,
- The specific disorder or malady being treated
- Specifics about the patient’s age and overall health
Because it involves the application of topics the average member of society would not know, North Carolina law requires that expert testimony be used to identify the applicable standard of care in medical malpractice cases.
Failure to Meet That Standard of Care
This part of the claim is where you detail what the medical professional did wrong. After having established what standard of care applies, you have to prove to the court that the defendant-doctor’s actions fell short of that standard. Doctors, after all, are allowed to make errors. They are allowed to be wrong. They are not, however, allowed to be negligent.
Besides standard of care and failure to meet that standard, to succeed in a medical malpractice claim in North Carolina you must show that the doctor’s breach directly caused or contributed to your injuries.
Showing that the doctor’s breach of duty directly caused your injuries means you must prove to the court that if it were not for the doctor’s actions, you would not have been injured. Note that the breach does not have to be “the” cause, but it must be “a” cause.
Causation can be a difficult factor to prove in a medical malpractice case. Expert witnesses can be key to proving this element. However, unlike expert testimony as to the standard of care, expert testimony regarding causation does not have to come from a doctor who is in the same field or specialty as the defendant.
“Damages” as injury
The fourth and final prong you must prove to succeed in a medical malpractice claim is that you were injured by the doctor’s actions. The injury that you sustained is referred to as “damages.” Note that these damages do not typically include injury that is partially caused by the plaintiff’s own negligence (for example, if you fail to closely follow your aftercare instructions post-surgery).
“Damages” as remedy
This word also refers to the money a court awards you to compensate you for your injury.
There are three types of monetary damages that apply to medical malpractice cases. North Carolina law limits, or caps, some of these.
- Non-economic damages: This type of damages compensates a person’s pain and suffering and is meant to cover things like a plaintiff’s discomfort, pain, anxiety, stress, loss of enjoyment of life, scarring, and other negative intangible effects the injury and continual recovery has on the person’s life.
- North Carolina law puts a $500,000 cap on non-economic damages a person can receive in a medical malpractice action.
- This amount is adjusted upward every so often to account for inflation.
- This damages cap applies in two ways:
- The total amount of non-economic damages against all defendants cannot exceed $500,000, and
- The total amount given to all plaintiffs cannot exceed $500,000.
- However, this damages cap will NOT apply to noneconomic damages in a medical malpractice case if the jury finds BOTH of the following:
- The plaintiff suffered the loss of use of part of his or her body, permanent injury, disfigurement or death.
- The defendant’s actions (or their failures to act) were grossly negligent, reckless, fraudulent, committed with malice, or intentional.
- This is a narrow exception and can be difficult to prove.
- Economic damages: This type of damages covers costs like past, present and future medical bills and lost wages. North Carolina law does not limit recovery in economic damages.
- Punitive damages: These are intended to punish the medical professional for actions that are grossly negligent, reckless, fraudulent, committed with malice or intentional.
- North Carolina law caps the amount of punitive damages a court can award in medical malpractice cases at three times the amount of compensatory (economic and non-economic) damages or $250,000, whichever may be greater.
In general, a person in North Carolina has up to three (3) years from the date of the medical treatment that caused injury, or one year from when the injury was or should have been discovered, to file suit against a medical professional for malpractice.
Proving all of the elements above can be tricky, especially when you are trying to do so while surviving the potentially devastating injuries of medical malpractice. If you or someone you love has been injured by the malpractice of a medical professional, please contact Arnold & Smith, PLLC to schedule a free consultation. One of our experienced and dedicated personal injury attorneys are prepared to fight on your behalf.
Patients who are injured by medical malpractice most often sue the individual doctor who was responsible, but sometimes they consider suing the hospital as well. A hospital generally is liable only for malpractice by its employees, which tends to exclude most doctors, although there are situations in which a hospital still may be liable for malpractice by a doctor. On the other hand, a hospital generally is liable for malpractice by other health care providers, such as nurses, anesthesiologists, and technicians. This is because these professionals are usually employed by the hospital directly.
Hospital liability is based on the notion of vicarious liability, or respondeat superior. This holds an entity accountable for careless or incompetent actions by its employees in the scope of their job duties, even if the entity did not act carelessly or incompetently. The plaintiff would need to show that the employee was acting within their employment relationship at the time. This is usually easy to establish, unless a doctor who was not employed by the hospital was supervising the hospital employee. The hospital may not be liable in those cases if the doctor was present when the malpractice occurred and could have prevented it.
Liability for Doctors Employed by the Hospital
More often than not, doctors who work at a hospital are independent contractors rather than employees. This means that the hospital would not be liable for their negligent actions. It cannot be held liable solely on the basis that the malpractice occurred on its property. A doctor who is affiliated with a hospital may or may not be an employee. This is a complex legal test that varies depending on the state.
A doctor may be employed by a hospital if the hospital has substantial control over when and how the doctor practices medicine. For example, a doctor may be considered an employee if the hospital requires him to work on a specific schedule or provides him with a certain amount of vacation each year. If the hospital determines the fees that the doctor charges, they likely will be considered an employee. Any terminology used by either the doctor or the hospital in describing their relationship generally has no impact on whether the doctor is an independent contractor or an employee.
Liability for Doctors Not Employed by the Hospital
If a doctor is an independent contractor, there are a few unusual situations in which the hospital still may be liable for their negligence. The most common exception is when the doctor is an apparent employee of the hospital. To avoid liability, the hospital needs to clearly state on intake forms that the doctor is not an employee. This is not possible in the emergency room setting, however, so patients who receive incompetent treatment from doctors in emergency rooms often can sue the hospital for malpractice. Some states even provide a statutory right to sue hospitals based on emergency room malpractice.
If a hospital allows a doctor to practice at its facility when it knows that the doctor is incompetent, it may be liable for the doctor’s malpractice even if the doctor is an independent contractor. If a doctor formerly was competent but becomes incompetent, the hospital may be liable if it continues to allow the doctor to practice there. (Perhaps the doctor developed an alcohol problem or a mental condition that undermines their ability to practice.)
What is medical malpractice?
Medical malpractice occurs when a doctor or hospital causes an injury to a patient through a negligent act. This negligence might be due to errors in diagnosis, treatment, or health management. The four elements of malpractice are duty of care owed to patients, dereliction of this duty of care, and the economic or non-economic losses suffered by the patient.
It has three characteristics:
- If the treatment has not been consistent with the standard of care.
- Only if the person has suffered an injury due to negligence.
- If the injury has resulted in significant damages like disability, pain, or significant burden of medical bills.
Examples of medical malpractice
- Failure to diagnose
- Misreading laboratory results
- Surgical errors or unnecessary injuries
- Improper medication
- Premature discharge
- Failure to recognize symptoms
Medical malpractice law
Malpractice laws vary among nations but it follows a general rule that happens when a health care practitioner does not show a competent degree of skill when providing medical care to a patient or if a practitioner holds himself out as a specialist and do not provide appropriate care.
As laws vary by jurisdiction, specific professionals may be targeted:
- Physicians, surgeons, dentists
- Nurses, midwives, nurse practitioner
- Physiotherapists, osteopaths, podiatrists, etc.
To prove that medical malpractice has occurred, the following things should be proved:
A doctor- patient relationship existed:
There should be proof of the physician’s or doctor’s appointment and that the doctor simultaneously agreed to it. For example a person cannot sue a doctor if he heard him advising at a party.
The doctor was negligent:
A person cannot blame a doctor just because he is not satisfied with his treatment, to sue a doctor, there should be proof of negligence.
Injury due to doctor’s negligence:
It is hard to prove that injury or death is caused by doctors’ negligence. For example, if a patient dies after cancer, it is difficult to prove that the patient died because of cancer and not because of the doctor’s negligence. In such cases, the patient should have a medical expert testimony to prove that the injury is caused by doctors’ negligence.
Requirements of malpractice cases:
A malpractice lawyer basically represents clients who are suing medical doctors or practitioners for negligence.
How do they work?
Malpractice lawyers perform day to day work of a typical civil litigator. Civil litigators work on cases where there’s legal discord but no criminal charges. They interview clients, investigate the case, develop trial strategies, and litigate cases.
Medical malpractice lawyers also perform the following tasks:
- They work with medical experts to develop case theories, reports, and testimony to support the case.
- They gather and analyze medical records
- They take the deposition of medical experts, personnel, and other third parties
- They set up medical examinations to obtain an objective evaluation of the injured patient.
- Working with legal nurse consultants to analyze case merits and medical records.
img source: freepik.com
There is detailed information about dealing with malpractice on www.bakerandgilchrist.com.
The attorney’s ultimate role is to compensate victims and their families by proving the care or treatment was not substantial. The lawyer helps a person with all the necessary requirements. It is vital to choose the best lawyer for the case because an inexperienced lawyer can lose the case.
The attorney helps you to recover and compensate. The compensation can be in any of these ways:
- Payment of all past, current, and future medical bills that are associated with injury
- Damages for disfigurement, pain, and suffering.
- Retraining for employment if the injury is severe enough to make the person unable to work.
How to protect your family from malpractice?
There are the following ways from which we can protect family members or loved ones from negligence or malpractice:
● A designated family member as an advocate:
Ask the doctor to include a person in any discussion regarding the patient’s treatment or health.
● Speak up for the things if they do not seem right:
Do not hesitate in asking things if they do not seem right to you.
● Asking the questions:
Ask questions to trigger the medical practitioner to think of alternative diagnoses because medical providers often get stuck on one diagnosis. It is important for them to remain flexible and to think of possible diagnoses. Seek for someone else if questions are not being adequately answered.
img source: freepik.com
Emergency room negligence attorneys:
Emergency rooms are quite chaotic and have multiple doctors performing their duties, making negligence possible. Therefore, the patient must prove two things to demonstrate negligence:
- Standard of care
- And breach of standard care.
The above article explains the importance of medical malpractice lawyers following hospital negligence or malpractice. There is a misconception that doctors, nurses always provide appropriate diagnosis, treatment, and healthcare but sometimes these expectations are not met due to malpractices.
If somebody becomes the victim of serious malpractice, it is important to seek help from a medical malpractice lawyer. A malpractice lawyer helps in investigating the case, presenting it in the court of law, and compensating the victim’s family. A firm and experienced malpractice lawyer should be hired for better control of the case.
The biggest mistake often done by the patient is the delay of the case. Time is an important factor in proving that malpractice actually occurs so it is important to file a case as soon as possible after malpractice occurs.
It is important to keep an intact medical record and have proper knowledge of the disease before choosing a doctor and treatment.
In most cases, the injured person is the proper party to bring suit for the damages caused by the wrongful conduct. However, there are certain situations where other persons may be substituted or included as parties in a case. The law of the state you are in will dictate who can file and what they can recover.
If the injured party has signed a power of attorney for someone else to act on his behalf, then the party who has had the power of attorney may bring suit on behalf of the injured party. This situation may arise where the injured party no longer has the mental or physical capacity to bring suit on his own. It also occurs commonly in nursing home cases where a family member may hold the power of attorney to act on behalf of an elderly loved one.
Sometimes, a guardianship is taken out over an injured person due to incapacity. In those cases, the person who has the guardianship is the proper party. However, powers of attorney and guardianships generally expire upon the death of the injured party.
In most states, when an injured party has died (either due to the injuries the subject of the lawsuit or due to other causes), then the person authorized to act on behalf of the estate can bring suit to recover damages for which the injured party could have sued if still alive. In some states, however, when a person dies due to causes unrelated to the case, that person’s claim for personal injuries is terminated.
When allowed by state law, the claim can be brought by an executor named under a will and appointed by a court. If the deceased did not leave a will, a person (usually a close family relation) can petition a court to be named an administrator of the estate. However, you do not always have to open an estate to pursue a lawsuit on behalf of a deceased person. Some states allow for alternate procedures. In Texas, for example, if there are no debts owed by the deceased and no other reason exists for opening an administration, the heirs of the deceased may bring a lawsuit on behalf of the deceased.
Sometimes, persons close to an injured party may also have a claim for their own damages and may join in the lawsuit asking to be compensated for their own injuries. This is in addition to the injured party’s claims.
When the injuries are severe enough, a spouse may bring claims for loss of spousal consortium (loss of affection, solace, comfort, companionship, society, assistance, sexual relations, emotional support, love and felicity) and for loss of household services (domestic duties the spouse performed prior to the injury but is no longer able to perform). Likewise, a minor child of an injured party can often claim a loss of parental consortium (love, affection, protection, emotional support, services, companionship, care and society) that he or she would have received if the injury had not occurred, but unlike the spousal claim, the injury to the parent usually must be serious, permanent, and disabling before a child may recover.
In wrongful death cases where the wrongful acts the subject of the lawsuit caused the death of the injured party, spouses, children and parents usually claim damages for their own loss. A spouse or child may claim damages for pecuniary losses (financial losses) and loss of inheritance, as well as loss of companionship and mental anguish, when supported by the evidence. A parent can claim certain pecuniary losses (much more rare) and loss of companionship and mental anguish. In some states, a litigant must choose between the options and cannot file for all the damages allowed in other jurisdictions.
The facts of each case and the law where the claim is brought will determine who is eligible to bring a legal claim for damages. Therefore, it is important to have the facts of your case evaluated by an attorney familiar with this area of the law.