Medical Malpractice Frequently Asked Questions

What is Medical Malpractice?

In order to establish that medical malpractice occurred, the plaintiff must prove that the physician involved in his care deviated from the accepted standard of practice for that type of medicine. Importantly, this does not mean that just because another physician would have done something differently that the defendant breached the standard of care. The plaintiff has to prove that no reasonable physician in that specialty would have done it that way. An error in judgment is not malpractice.

Do most patients realize that medical malpractice has occurred?

No. There is an old saying that reads: “doctors always bury their mistakes.” Although this is a bit of a cliche used to over dramatize medical malpractice issues, it is true that the statistics prove that most medical malpractice goes unrecognized and unreported. In fact, one study estimates that as much as 90% of documented malpractice was not reported and not pursued by the patients.

Does a bad outcome mean that medical malpractice has occurred?

No. Just because the patient suffers a bad outcome does not automatically mean that malpractice occurred. Frequently, a bad outcome is caused by an unintended complication. Complications are not generally considered to be malpractice. In fact, most complications are contained on the consent form. Some of these include infection and bleeding.

How come more medical malpractice acts do not result in claims?

Much speculation can be offered as to why medical malpractice is not more frequently reported or pursued, but the likely explanation is that unless the wrong leg is amputated, most medical malpractice is not readily apparent to a victim or his family. Moreover, most state laws do not require that victims be informed of malpractice. In fact, most state laws specifically preclude the patient from discovering that a physician has been reprimanded or disciplined by his peers for actions which are considered to be malpractice.

What do I do if I suspect that malpractice has occurred?

When malpractice is suspected, do not accuse or insult the treating health care providers. Quietly request the records and have them reviewed by an expert. If the care by the physician is ongoing, you may want to request a transfer of the patient’s care to another hospital or health care provider. Document the events as they unfold. Most important, consult an experienced medical malpractice attorney.

Should I make a claim for any act of medical malpractice which is suspected?

No. Medical malpractice cases are not like auto cases where the filing of a claim will result in some settlement offer. These cases require the expert testimony of a physician which is extremely expensive. Moreover, even a clear-cut case of malpractice is not worth pursuing unless there is at least $100,000 in provable damages. Thus, without clear evidence of malpractice and significant damages, these cases are not worth pursuing.

What is the time limit for filing a medical malpractice claim?

Each jurisdication varies in the time period allowed for bringing a claim. In Louisiana, a person has only one year from the date the malpractice was discovered or should have been discovered to bring a claim. In no event can the claim ever be brought after three years from the date of the malpractice.

Can any lawyer effectively review and handle a medical malpractice claim?

Absolutely not. These cases are extremely complex, expensive and time consuming. The attorney who reviews these cases should be experienced in handling medical malpractice claims and have sufficient resources to have the case reviewed by top experts.

What fees do most medical malpractice lawyers charge?

Most medical malpractice lawyers charge a contingency fee of at least 40% of the total recovery. This fee is a little higher than the contingency charged for an ordinary personal injury case. The reason for the larger fee in a medical malpractice case is because of the large costs of pursuing the case and the substantial risk of not prevailing.

Do most medical malpractice cases settle?

No. If a physician settles the case for even $1, he gets reported to a national data bank. That reporting follows him for the rest of his career. Most medical malpractice insurance policies give the physician the right to decide if the case will settle.

Do most medical malpractice cases result in a verdict in favor of the patient?

Nationwide statistics tell us that only about 30% of all medical malpractice cases that proceed to trial result in a verdict in favor of the patient. That means that physicians win about 70% of the cases tried in court.

Are physician expert witnesses easy to find and are they usually willing to testify against another physician?

No. Good physician expert witnesses are not easy to find. However, experience medical malpractice lawyers usually have resources to find the best witnesses. Physicians in the same state usually do not testify against each other. Expert witnesses usually must be retained from out of state.

Why do medical malpractice cases take longer than normal legal cases?

In Louisiana, a patient must first submit the claim to a medical review panel before a lawsuit can be filed. This delays the case by at least two years. Moreover, the schedules of the multiple physicians usually involved in the case (expert witnesses and defendant doctors) delay it further.

Should I obtain my own medical records or should I get an attorney to obtain them for me?

It is essential that the patient attempt to get his own medical records first. When doctors and hospitals see requests from lawyers, such requests put them on notice of a potential claim. Records can be lost or even changed in some instances after a request from an attorney is received.

Are most medical malpractice awards subject to a cap on damages, if so, which damages are capped?

Each state has its own laws regarding medical malpractice. Louisiana has a cap on damages of $500,000. It includes all items of damages except medical expenses. Other states like California may have lower caps, but their caps allow recovery of lost wages.

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