Medical Malpractice FAQs
Frequently asked questions about medical malpractice
What is “medical malpractice”?
Medical malpractice is a broad term generally used to describe any treatment, lack of treatment, or other departure from accepted standards of medical care, health care, or safety on the part of a health care provider that causes harm to a patient. There are many examples of medical malpractice, including, misdiagnosis, improper treatment, failure to treat, delay in treatment, failure to perform appropriate follow-up, prescription errors, etc. In many instances, medical malpractice is not obvious to a layperson and requires review and analysis by medical experts.
What must be shown to succeed in a medical malpractice case?
While there are various types of medical malpractice claims, generally speaking, the person making a claim (the claimant) must usually show the following:
- The health care provider owed a duty to the patient
- The health care provider breached that duty
- The patient suffered an injury, and
- The patient's injury was a proximate cause of the health care provider's breach
A physician owes a duty to a patient once a "doctor-patient" relationship has been formed. Such a relationship is usually formed when the physician agrees to care for the patient. Nonetheless, even if it is established that a duty existed and the health care provider breached that duty (e.g. failed to meet the requisite standard of care), a claimant may not recover unless the claimant suffered injuries that were a direct result of the breach. If the breach resulted in no harm to the patient, a claimant generally has no right to recovery.
What is the first step in pursuing a medical malpractice claim?
The first step in pursuing a medical malpractice case is suspecting that one may have been the victim of medical malpractice. While not every bad result is due to medical malpractice, one who develops a "gut feeling" that something was wrong should consult a qualified attorney to review the matter. That attorney often will consult with medical professionals. This process involves obtaining and reviewing medical records and other pertinent information. If it is determined that the claimant has a good case, the next step is usually to give written notice of the claim to the individuals or entities that are believed to have committed the medical malpractice.
Will I have to go through a trial in court before my case is finished?
While some cases do require a formal trial proceeding, many of our cases are settled before they go to court.
I’ve heard that lawsuits take a long time. Is that true with malpractice cases?
Malpractice cases don't necessarily take any longer than other cases. We work hard to prevent delays.
I know lawyers can be expensive. How does your firm charge?
You pay nothing unless and until we recover money for you. Our fee is a percentage of that recovery.
I have no idea how much money I should ask for or expect. What kind of expenses are typically included in a settlement?
A typical medical malpractice claim will include compensation for pain and suffering, payment of medical expenses for treating the injury caused by the malpractice, and reimbursement for any past, present or future financial losses that you have incurred as a result of the malpractice. However, this varies by state.
It has taken me several months to work up the nerve to do anything about my situation. Am I running out of time to file a lawsuit against my doctor?“Statutes of limitation” govern the length of time one has to file a lawsuit or be forever barred from pursuing such a claim. Each state has different statute of limitations periods that apply to personal injury cases under various circumstances. In some cases, the statute of limitations may be as short as one year, while under different circumstances, it may be four years or more. Many factors bear upon when the applicable statute of limitations period expires, including the age of the plaintiff, the type of personal injury claim, the particular facts giving rise to the injury, and others. One must make absolutely certain they are aware of when their statute of limitations period expires or risk jeopardizing their legal rights. An experienced personal injury lawyer can be of assistance in this regard.
Have I waived my rights because I signed a consent form?
This is a question asked by many. A consent form does not give the health care provider a license to commit malpractice. While the execution of a typical consent form indicates acknowledgement of stated risks and complications associated with a given treatment or procedure, it does not relieve the health care provider from his or her duty of meeting the standard of care associated with such treatment or procedure.