There may be a difference between bad medical care and negligent care. The standard of care does not hold physicians to the highest standard of doctoring but rather a baseline for competency. You may have been displeased with the care you received but it may not be negligent if other doctor’s would have reasonably chosen the same course of treatment or diagnosis.
The only way to establish negligence and that the negligence caused harm is through the use of expert testimony. An expert in the same medical field as your doctor would establish the standard of care for their profession and offer an opinion as to why the treating doctor’s care was negligent and caused the patient’s injury. [3] X Research source
Misdiagnosis or delayed diagnosis cases involve injuries, including death, that result from a doctor failing to diagnose a disease for some time, which prevented the patient from seeking treatment that could have prevented serious injury or death. Certain childbirth injuries are linked to medical malpractice, such as cerebral palsy and seizure disorders. These injuries can result from negligent prenatal care, failure to diagnose a condition that harms the fetus, or negligent delivery of the baby. Often, childbirth injuries are not linked to a failure on the part of the doctor but if you are concerned or have questions you should speak with an attorney. Patients can be injured by medication injuries, which may include the doctor prescribing the wrong drug and/or dosage or the pharmacy giving the wrong medication. Patients may be injured from anesthesia errors. These types of cases can include a doctor giving the wrong amount of anesthesia, failing to inform the patient of all of the potential side effects or accurately reviewing the patient’s medical history, and/or failing to properly monitor the patient. Another category of medical malpractice cases include surgery errors, whereby the surgeon negligently damages an organ, leaves a medical device in the patient, operates on the wrong body part or provides negligent post-operative care. [4] X Research source
In some states the statute of limitations does not begin to run until you have discovered or reasonably should have discovered that you have an injury. This is referred to as the discovery rule. Under the discovery rule, if a patient does not have any symptoms for a few months, the statute of limitations would not begin to run at the time of the negligent act, for example, a surgery, but rather when the symptoms started and a reasonable person would seek follow-up care to see what was wrong. [5] X Research source To view statute of limitations by state, visit: http://www. nolo. com/legal-encyclopedia/state-state-medical-malpractice-statute-limitations.
Ask family and friends whether they have ever required the services of a malpractice attorney and whether they could make a recommendation. Check with local bar associations and review the list of medical malpractice attorneys in your area. You can also check with the bar association to see whether the attorney has any complaints filed against them. You can find state bar association information at https://www. americanbar. org/groups/legal_services/flh-home/. Carefully review the attorney’s website to see if they specialize in medical malpractice and look for a list of significant verdicts in their client’s favor. Only choose an attorney that is willing to front the costs of the case. This is called a contingent fee agreement, which means that you don’t pay anything unless you win your case. If you win, the attorney is reimbursed for all costs and is paid a percentage of the overall verdict. Meet with several attorneys to get a sense of how they interact with their potential clients. Ask about their medical malpractice experience. Discuss the billing and fee arrangements.
An attorney must review the medical records to make sure that a potential case is supported by the medical records. [7] X Research source
Keep in mind, doctors charge a fee for their service so your attorney may (or may not) charge you to pay for their expertise.
The cost of past and future medical care; Loss of income and/or the loss of your career; Pain and suffering; The cost of any psychological care; and A claim by a spouse for the loss of care, companionship or other damages that they suffered as a result of their spouse’s injury or death.
The Complaint puts the doctor, now the defendant, on notice that they are being sued and that they must file a legal Answer. The Complaint should be typed, double-spaced and each paragraph should be numbered. It should include a brief introduction that explains why the case is being filed in a particular court. It will include a list of facts relevant to proving negligence and damages. It will include all of your legal claims and your demand for damages. It will request a jury trial, if you want a jury to hear your case. The Complaint will be filed with the court and a copy will be provided to the defendant doctor. [10] X Research source Your attorney will also file a “Certificate of Service,” which provides proof to the court that you provided the defendant with a copy of the Complaint in a legally allowable way. [11] X Research source
Your attorney will receive the discovery requests and will most likely meet with you to discuss your answers. Your attorney will include legal objections but in the end you must answer the questions truthfully. [12] X Trustworthy Source American Bar Association Leading professional organization of lawyers and law students Go to source Both attorneys will take depositions, which is where they ask questions of potential witnesses under oath and in front of a court reporter. The purpose of the deposition is to gather additional facts and to find out what a witness will say at trial. If you are the injured party, you can expect to be deposed. If your injuries are in dispute, the defendant may request that you get an “independent medical exam. ” Your attorney will most likely accompany you to this doctor’s visit, where you will be given a basic examination and asked questions about your injury and any changes it caused in your life. [13] X Research source
Many cases settle at this time because it is before the added expense of trial for both parties. Parties, through their attorneys, can engage in settlement negotiations directly. In bigger cases, parties often hire a mediator to facilitate settlement discussion. The mediator is a neutral person, usually a retired judge or attorney. The mediator discusses, with both sides, the strengths and weaknesses of their cases and helps the parties come to an agreement. [14] X Research source
During trial, the jury is listening to all of the witnesses and gathering facts to determine whether the plaintiff proved his or her case. The judge will explain the law to the jury and then the jury makes a decision as to whether, by a preponderance of the evidence, the plaintiff showed that he or she was injured by the doctor’s negligence, and this negligence caused the plaintiff’s damages. [15] X Research source
