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Your Guide to Medical Malpractice Claims: Chapter 5

Important Information Relating to Medical Malpractice

Understanding when you might have a medical malpractice case is only part of the process. Knowing when to file, who can file and the various checkpoints involved in pursuing a case is best handled when working with a professional.

Who Can File a Lawsuit?

Various individuals may be eligible to file a lawsuit or pursue legal action following medical malpractice or negligence, with the help of qualified malpractice attorneys. The most obvious eligible person is the patient. If the patient is able, they should be the first to take action.

In medical malpractice cases, it is usually the person who has suffered damages or injuries who can file. This individual can then pursue compensatory and non-economic damages for their injuries. In some cases, punitive injuries can be pursued, too.

If the patient is a child, is incapacitated or has died as a result of the malpractice, which is termed “wrongful death,” the closest surviving relative or executor or administrator of the deceased’s estate — in many cases these are the same person — can file a lawsuit on the patient’s behalf.

The closest surviving relative or executor of the deceased's estate can file a lawsuit on the patient's behalf.

In these cases, the person filing the suit may be pursuing damages on behalf of the injured patient. For example, a parent may seek damages on behalf of a child who has suffered a permanent birth injury so the child can have medical care during their life. In some cases, those who file the claim can also claim their own damages. For example, a spouse filing a “wrongful death” lawsuit after a fatal surgery may claim loss of income contribution or mental anguish as a result of the injury.

It is important to note that, in the case of death, the individual who wishes to file a suit must be appointed to do so. This appointment can be from a pre-existing agreement — such as a will or power of attorney — or after a hearing or trial to appoint the individual.

If you’re not sure whether you can file a claim, contact a medical malpractice attorney. They have experience in medical malpractice law and can review your course of action.

What Is the Process of Pursuing a Medical Malpractice Lawsuit?

Where should you start or what should you do if you have been impacted or harmed by medical malpractice? Your first step is critical — select an experienced medical malpractice attorney to represent you. We will cover this more in Chapter 7. For now, keep in mind that you should feel comfortable and confident with your legal team.

Your attorney will guide you through the following steps:

1. They will review and investigate your medical records and the actions that were taken. A medical professional will be found to offer an opinion on whether or not negligence took place.

2. If it is determined malpractice did take place, your attorney will make a demand and handle negotiations. It is important to note pre-lawsuit settlements are not common in medical malpractice cases. However, sometimes they happen.

3. If a pre-lawsuit settlement does not take place, your attorney will file a lawsuit along with the proof that has been gathered that malpractice took place. As required in Pennsylvania, your attorney will file a Certificate of Merit, which is an affidavit from a medical professional stating that in his or her opinion, the defending doctor did not exhibit a reasonable level of care.

4. After the lawsuit is filed and the judge has approved it, the “litigation” phase begins. Each party begins to conduct discovery. This allows each side to investigate the legal claims in place and the strategies that will be used. Attorneys will communicate with each other and depose all witnesses who may be a part of the process. This process can take a year or longer depending upon the deadlines in place.

5. Next, mediation and negotiation begin. This stage is where most medical malpractice cases are settled. Sometimes cases are settled between lawyers, but sometimes a mediator is brought in to work with both parties to settle the case.

6. If the case is not settled through mediation, it will go to trial. The trial itself can last a week or more. Trials typically provide a conclusive answer as to whether malpractice took place and to what monetary figure the patient or patient’s family may be entitled. However, there could be options to appeal.

What Are the Signs of Medical Malpractice?

Medical malpractice law is complicated. Understanding the signs of medical practice will help you and your lawyer determine if you have a case.

It is important to note none of the following signs constitutes medical malpractice on its own. A bigger picture and research are required to uncover that answer. Instead, these are limited signs that may be indicators of malpractice:

  • Your condition or injury does not improve or gets worse.
  • Treatment occurred before you were given an explanation or options. You feel as though you did not have a say in the process.
  • You did not get a full review of the risks of a treatment.
  • You wake up during surgery under general anesthesia .
  • You suffer complications or infection after the surgery.
  • More treatment is required after your treatment, and this was not originally part of the plan.
  • You do not feel as though adequate testing was performed during your stay, prior to treatment or before you were discharged from the hospital or a provider’s care.
  • Follow-up did not occur, or you had trouble reaching your provider for answers after treatment.
  • You obtained a second opinion that led to a differential diagnosis or prognosis than you received from your original healthcare provider.
  • Something just feels “wrong.”
  • A foreign object was left in your body during surgery.
  • You have tried to obtain your medical records and have faced delays or other trouble during the process.

Again, these are red flags — not absolute proof of malpractice. If you have encountered one or more, pursuing further action and legal counsel may be in your best interest.

Sometimes, evidence of medical malpractice is very clear. If you go into an emergency room with symptoms of a heart attack, are released and then suffer a heart attack later that night, you may think you have a medical malpractice claim.

In many cases, the signs of malpractice are not so clear and it may be difficult to tell whether your injuries were preventable. Doctors and medical staff will not admit to malpractice and in some cases hospitals, clinics or professionals may try to hide evidence of wrongdoing. They may blame a negative medical outcome on chance or something else.

It is also important to remember that having a poor outcome alone is not proof of medical malpractice. Even if your doctor does something wrong and makes a mistake, it does not mean you have a strong claim. To pursue a claim, you will have to prove:

  • You had a doctor-patient relationship with the doctor who caused your injury
  • Your doctor was negligent, either in action or by failure to act
  • The negligence led to your injury
  • Your injury caused you financial loss or other harm

Unfortunately, it can be challenging to know whether medical malpractice occurred in the first place. You may not have the medical background to evaluate the actions of a physician. Then, it can be difficult to know whether you have a claim. This relies on legal knowledge you may not have.

If you have any reason to suspect you may have been injured by a doctor breaching his duty of care to you, the patient, contact a medical malpractice attorney at once. Attorneys have the legal knowledge to understand whether you have a case. They can also subpoena medical records and consult with medical professionals to determine whether medical malpractice occurred. Experienced attorneys have seen hundreds or thousands of malpractice cases and know what evidence to seek.

Who Is Responsible for Harm That Was Done?

Contrary to popular perception, medical malpractice is not limited to doctors. While it may be easy to assume harm or injuries resulted from the actions of the doctor, hospitals, pharmaceutical companies or other parties may be responsible and can be sued for malpractice. In addition, nurses, pharmacists, therapists and other medical professionals can be held liable for breaching their duty of care to a patient and causing injury and harm.

Medical malpractice is not limited to doctors.

Note that the United States offers first responder/sovereign immunity. In emergent situations, first responders — providing they act per training standards and document each action — can be considered immune from medical malpractice.

In some claims, more than one person may be responsible for the harm which was done. In a surgery injury, for example, an anesthesiologist and surgeon may both be held liable for negligence if they failed to act in a professionally reasonable way.

Often, it is difficult for patients to know who is liable in their case. If they have been misdiagnosed, for example, it may not be clear whether a lab tech performed a test incorrectly, whether a lab sent the wrong results or whether a doctor read the results incorrectly.

If you have been injured in any medical setting, working with medical malpractice attorneys is important. An attorney can carefully evaluate medical records, evidence and medical expert testimony to uncover all liable parties in your case.

Special Requirements in Medical Malpractice Cases

Medical malpractice cases involve different steps and requirements that are not common in other legal proceedings, such as:

  • Review panels: In certain situations, before a lawsuit can be brought officially against a provider, it may be subject to a malpractice review panel. The panel consists of experts in the field who will review records and evidence and listen to expert testimony to determine whether malpractice took place. This step may be required before going to court, and findings can be presented during the case.
  • Expert testimony: To prove medical malpractice, an expert opinion or multiple opinions are required. Usually, this expert has experience in the field in question and can provide insight on whether or not malpractice took place.
  • Limits on damages: Certain damages awarded during malpractice cases are limited, such as punitive damages, for example. These vary from one state to another and can depend upon whether there was malicious intent or fraudulent behavior that led to the negative outcome.

Length of Medical Malpractice Cases

Before taking action, you may wonder how long a medical malpractice case will take to settle.

It is important to understand there is no “set” time from the filing of a medical malpractice case to its conclusion. However, Harvard Medical School puts the average length at 43 months, with an additional two years from the incident to when the case is filed.

Factors that can influence case length include:

  • Multiple parties being involved.
  • Complex or new legal issues arising during the discovery phase.
  • Complicated medical histories or conditions needing to be sorted out before determining the cause of harm.
  • There may be difficulty obtaining medical records, important information or expert testimony.

Delays may also be caused by some parties trying to prolong the trial, by lengthy negotiations or by other factors.

For many patients, the length of a claim is important because a plaintiff may be relying on an expected settlement to pay for medical costs and other damages. Due to medical complications caused by the injury, plaintiffs sometimes feel they cannot wait for an outcome.

If you are concerned about delays in your claim, speak to your medical malpractice attorney. Your attorney can estimate how long your case will take and can keep you updated about the status of your claim, including any delays.

If you would like to speak to a medical malpractice attorney, contact KBG Injury Law for a consultation. Our team of attorneys has successfully resolved thousands of cases through negotiation and the courts for more than 30 years. KGB Injury Law networks with medical professionals and we have successfully resolved birth injury, surgical error, anesthesia injury and other medical malpractice claims.

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