Like many other people, you may think you have a medical malpractice lawsuit if your doctor makes a mistake while treating you. This may or not be true. The truth is, there's a lot more to a medical malpractice case than a patient getting hurt. The key factors involve showing or proving:
- A doctor or another medical professional made a mistake, and
- You were harmed by that mistake
Usually, any malpractice case is a long and complicated legal matter because it's not always fast or easy to prove those two things.
What Is It, Exactly?
Medical malpractice is when a doctor or another medical professional - like a nurse or technician - does something or doesn't do something that causes an injury or some harm to you, the patient. The medical professional's act or failure to act (called an "omission") is called "medical negligence."
As you can see from this definition, a medical malpractice case involves a mistake or error by a medical professional that damages or harms a patient.
The mistake or omission can happen at any time during medical treatment. For example, your doctor may make a mistake diagnosing your illness, or she may not give you the proper treatment or medication for that illness. The key here is the standard of care. This is the generally accepted method or methods used by other medical professionals in the area to treat or care for patients under the same or similar circumstances.
For example, if you're a 45-year-old business professional with asthma living in Michigan, the standard of care your doctor must use is the standard other doctors in the Michigan and surrounding areas use to diagnose and treat asthma in 45-year-old business professionals. This standard is different, of course, for 20-year-old athletes in Arizona, or a 70-year-old retired railroad workers in West Virginia. The standard changes depending on the patient's age and medical problem, and usually, where the patient lives.
If you can prove your doctor didn't follow or "breached" the standard of care for your particular medical problem, you've made a big first step in making a good medical malpractice claim.
Injury or Damage
It's not enough that your doctor made some sort of mistake. Before you can file a lawsuit, you have to be able to show that the mistake caused you damage or further harm. The amputation of the wrong limb, brain damage after an operation, a medical condition or disease got worse after treatment, or even death are good examples of injuries or damage. In short, unless you've been harmed, there's no medical malpractice case.
You also have to prove that the injury is connected to the negligence. This is called "causation," meaning your damage or harm was caused by the doctor's mistake. This may be the most difficult - and expensive - part of any medical malpractice case. As a general rule, you'll need at least one expert witness to explain how the mistake caused your injury. These expert witnesses are almost always other doctors or medical professionals.
Experts are also used to help you show the standard of care that applies to your case and how your doctor breached that standard of care.
As you can see, a medical malpractice case is usually complicated from the get-go, and usually takes some time to get through. You have a lot to prove. And the defense usually doesn't pay up without a fight. You can bet the doctor or medical professional you're suing - usually, it's that person's insurance company who defends the case - will do everything possible to show that the doctor didn't make a mistake or cause your injury. The defense will use its own experts to do this.
It may take months or even years for the case to be over. And you can't wait forever to file the case, either. The "statutes of limitations" set out how long you have to file a lawsuit against someone else, including a malpractice claim. The time period varies from state to state, but generally it's two years from the date of your injury.
These cases aren't cheap, either. Experts cost a lot of money, sometimes over $1,000 per hour, especially if you need them to take off work and come to court to testify. Plus there are all kinds of other costs, like filing and other court costs, as well as discovery.
As a practical matter, though, you may not have to worry too much about these costs, at least not immediately. Most lawyers take medical malpractice cases on a "contingency fee" basis. This means that your attorney will pay most if not all of the costs of the case up front, and he won't charge attorney's fees unless you win the case. If you win, she'll take a percentage of the amount of money you win as her fees and reimbursement for the costs she paid. Generally, if you lose, you'll still have to pay the court costs, but not the fees.
Don't let the potential costs and complexity scare you away from a case. If you've been injured by a medical professional's mistake or failure to act, talk to an attorney to see if you have a good case. Not only can you get money or "damages" for medical bills, lost wages and pain and suffering, but you can help make sure the same mistake doesn't happen to another patient.
Questions for Your Attorney
- Do I have to tell the IRS about any money I get from a malpractice lawsuit?
- I traveled to another state for medical treatment. Can I file a malpractice suit in my home state, or do I have to file in the other state? Can you represent t me in the other state?
- I heard that our state has "tort reform" laws that limit how much money I can get in a malpractice suit? Is that true? How much is it? What if that doesn't cover all of my medical bills, lost wages, and pain and suffering?