Medical Malpractice FAQs

malpracticeIf you believe a health care provider was responsible for an injury you may have suffered, you may have grounds for a medical malpractice case. While it falls under the scope of personal injury law and has similar elements as other types of injuries, medical malpractice is also unique in many ways. Here are some frequently asked questions about this branch of personal injury cases.

What is Medical Malpractice?

Medical malpractice occurs when healthcare providers do not follow established procedures and in doing such, the patient suffers injury. Malpractice claims can be brought against numerous entities besides doctors—examples include nursing homes, HMOs, midwives, physician assistants and hospitals. Types of malpractice include failure to diagnose an illness or condition, an improper diagnosis, prescription errors, improper treatment, failing to inform a patient about known risks of medications or procedures, improper treatment, surgical errors or birth injuries.

In order to bring a case, you must prove negligence—simply being unhappy with the outcome of treatment is not applicable. The defendant must have acted in way that a similar entity would not have given similar circumstances. Doctors are not expected to be perfect, however; they are only expected to act according to the standards of care set forth by the medical community. This means that even if there was an error, this does not automatically entitle you to damages.

How Long Do I Have to File a Claim?

medical-malpractice-claimIn most states, there will be a statute of limitations, or a time frame in which you must begin legal proceedings. Failure to act within this established period may leave you with no recourse. The time frame will vary between states, with most requiring action within six months to two years. It is important to find out what that time applies to—either the time from when the negligent act occurred or the time you discovered the injury.

How Does Fault Come Into Play?

Like other types of personal injury cases, any role you may have played in your injuries can affect compensation. If you failed to follow the doctor's orders or take the necessary steps to mitigate the severity of your injuries, any damages you receive will likely be reduced by your percentage of fault. Depending on the extent of fault, your case may become substantially weaker or you may have no case at all.

Will My Case Go to Trial?

Many personal injury cases eventually settle out of court at some point in the proceedings. Medical malpractice cases, however, are much more likely to go to trial because of their complexity. The burden of proof is on the plaintiff and for this reason, insurance companies are willing to gamble on a trial. If doctors settle malpractice suits, even for relatively small amounts, they will be reported and this spot on their record will follow them the rest of their career—so, they too, are more likely to take their chances with a trial.

What about an Attorney?

Most attorneys will work on contingency, meaning they will only get paid if they win your case for you. It is important to pick your representation carefully. This is a very specific type of personal injury case and you do not just want to pick any lawyer in this specialty—you need to find attorneys who have experience with medical malpractice (preferably your specific type of injury) and who have successfully brought cases to trial. As a plaintiff, you do not want to go with a practice that functions primarily as a medical malpractice defense firm—while they may have experience in the arena, they may not represent you as well if they are used to playing for the other team.

Kelli Cooper is a freelance writer who blogs about all things law.

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