Dominique A. Penson
April 22, 2015
New York ,NY 10007-2811
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When a health care professional causes personal injury in the course of diagnosis or treatment, it is known as medical malpractice. The average damages award in a successful medical malpractice lawsuit is several hundred thousand dollars. Even if your doctor makes a mistake while treating you, however, you are not guaranteed to win a lawsuit.
In an ordinary personal injury case, such as an auto accident, the defendant will be liable if he failed to act as carefully as a reasonable person of “ordinary prudence” would. When the defendant is a doctor or other health care professional, however, the standard is raised. The provider will be liable for failure to act as carefully as any reasonable professional within that area of specialty, considering education, training, and licensing standards. This doesn’t mean that every professional must make the perfect decision every time. If it did, every patient could sue every doctor.
A medical mistake is not enough to win a malpractice case. If you suffered no harm, then you have no case. Damages can take many forms. You can claim damages for present and future medical expenses, lost wages, and pain and suffering. You can even claim “loss of consortium” if your injury prevents you from enjoying sexual relations with your spouse. Typically, amounts awarded for psychological damages such as pain and suffering greatly exceed amounts awarded for medical expenses.
To initiate a medical malpractice lawsuit against a healthcare provider, you must file a complaint with a state court, typically in the state where the malpractice occurred. You must also complete a summons, which is a demand that the defendant show up in court to defend the case. The court will send a state official to personally deliver these documents to the defendant. You may need to sue more than one party. For example, you may sue both your surgeon and the hospital where your surgery and recovery took place. If the defendant is a member of a general partnership, you may sue every member of the partnership.
The majority of medical malpractice cases are settled out of court with the defendant’s malpractice insurance company. In fact, it’s likely that a busy court will strongly encourage you to settle. You may reach a settlement at any time before the final verdict. The insurance company will insist that you sign a settlement agreement preventing you from ever filing suit on the same claim again. Before you sign, make sure that the settlement is enough to cover all of your losses – now and in the future. This can be hard to predict. Never sign a settlement with having it reviewed by a qualified attorney.
The law surrounding personal injury caused by medical malpractice is complicated. Plus, the facts of each case are unique. This article provides a brief, general introduction to the topic. For more detailed, specific information, please contact a personal injury lawyer.