According to Hopkins Medicine, medical errors kill approximately 250,000 people in a given year. In fact, medical malpractice is the third leading cause of death in the United States, directly following cancer and heart disease.
Medical malpractice is defined as any act or omission by a medical professional during the treatment of a patient that differs from accepted norms of practice (also referred to as negligence) in the medical community and causes an injury to the patient. The negligence could be a result of an error during diagnosis, treatment, and/or aftercare. Medical malpractice is a specific type of tort law that deals with professional negligence and is a common type of personal injury lawsuit.
In order to prove that medical malpractice occurred, you need to be able to prove the following things:
You must be able to prove that you, the victim, had a doctor-patient relationship with the medical professional that you are suing. This means that you hired the physician, and the physician agreed to be employed by you. For instance, you cannot sue a doctor that you overheard giving medical advice. If a medical professional started seeing and treating you, it should be pretty simple to establish that a doctor-patient relationship existed. Questions typically arise on whether or not the doctor-patient relationship existed when a consulting doctor did not personally treat you.
Sometimes individuals are simply unhappy with their treatment or results; however, that does not mean a doctor is liable for medical malpractice. The acting physician must have been negligent in relation to your diagnosis or treatment. In order to sue for medical malpractice, you must show that the physician caused you harm in a way that a competent doctor would have under the very same circumstances. A doctor’s care does not have to be the best possible, but it does have to be “reasonably skillful and careful.” Whether a doctor was reasonably skillful and careful is usually at the core of a medical malpractice lawsuit. Almost every U.S. state requires that the patient present a medical expert to speak on the appropriate medical standard of care and show precisely how the medical professional deviated from that standard.
A common question is whether or not what the doctor did, negligent or not, directly caused the injury. This is because many malpractice cases involve patients that were sick or injured before a doctor’s care. For instance, if a patient passes away after treatment for lung cancer, and the medical professional acted negligently, it may be hard to prove that the doctor’s negligence was the cause of death rather than cancer itself. A patient must prove that it is “more likely than not” that the physician’s incompetence was the cause of the injury. It is typically required of a patient to have a medical expert testify that the physician’s negligence caused the injury.
Even when it is obvious that the doctor performed below the expected standard of care, you cannot sue for malpractice if you did not suffer any injuries. Below are a few examples of the types of harm a patient can sue for:
Of all of the hundreds of thousands of medical mistakes that are made each year, the most common preventable types of medical errors include:
In the United States, medical malpractice law has traditionally been categorized under the authority of the individual states (not the federal government) compared to many other countries. In order to win any financial compensation for an injury related to medical negligence, one must be able to prove that the substandard medical care was the reason they were injured.
The claim of medical negligence must be filed within a certain amount of time, known as the “statute of limitations.” This time frame varies from state to state. Medical malpractice statutes of limitations can be complex because they often contain more than one deadline.
For example, in the state of Alabama, the first part of the statute of limitations is known as the standard deadline, which gives a victim of medical malpractice a particular number of years to file a claim after the supposed wrongdoing occurred. The standard deadline for Alabama is two years, meaning that if you do not file a medical malpractice claim within two years of your malpractice incident, you lose all rights to sue for medical malpractice.
However, there are exceptions to this rule created by other parts of the statute of limitations. The second part of the statute of limitations is called the discovery rule. This rule is an exception to the standard deadline in instances where the victim could not have sensibly learned that they had a medical malpractice case. The discovery rule in the state of Alabama states, “if the injured person did not discover the medical malpractice claim and could not reasonably have discovered the claim within the two-year statute of limitations, the claim may be commenced within six months from the date of discovery of the malpractice or the date of discovery of facts which would have lead to such discovery. Whichever is earlier.”
The third part of the statute of limitations is the deadline for minors or their parents or guardians to file a medical malpractice claim. In Alabama, there is a designated deadline only for minor children under the age of four at the time of the wrongdoing. If a victim of malpractice is under four years old, the child has until their eighth birthday to file a claim.
The fourth part of the statute of limitations is the statute of repose. It is important to note that not all states have this part in a medical malpractice case, and not all states call them a statute of repose. A statute of repose enforces an absolute deadline no matter when the victim discovers the malpractice. In Alabama, the statute of repose specifies that a medical malpractice claim cannot begin more than four years after the supposed act of malpractice, except for minor children who are subject to the deadline for minors detailed above.
Alabama has other exceptions to the statute of limitations of a medical malpractice case. For instance, the statute of limitations may be extended if the defendant fraudulently concealed the malpractice, if the defendant departed the state after committing the wrongdoing, or if the victim of malpractice was mentally ill.
Once a patient proves that the negligence led to their injuries, the court will calculate the financial damages that will be paid in compensation. The damages that will be taken into consideration will be both economic and non-economic. Economic damages are lost income, medical bills, and the cost of future medical care, and non-economic damages are typically pain and suffering. Medical professionals who practice in the United States usually carry medical malpractice insurance to protect themselves in the case that medical negligence or unintentional injury occurs. In some cases, this type of insurance is required as a condition of hospital privileges or employment with a medical group.
As stated above, the measure of whether or not a medical professional acted negligently, or failed to provide proper care, depends on whether the victim (patient) would have received the same standard of care from another medical professional under the same circumstances. The majority of medical professionals aim to operate at the highest standard of care for every patient they see; however, there are times when things can go severely wrong.
If you or a loved one has experienced less than adequate medical care that has ended in harm or injury, you most likely will be entitled to medical malpractice recovery. Contact an experienced medical malpractice attorney at The Cochran Firm for a free, no-obligation initial consultation. It is also essential to understand what to expect when/if your medical malpractice claim begins and that the requirements vary from state to state. Below you will find how to file a medical malpractice claim and considerations to keep in mind when filing.
Although particular injuries can be handled without professional assistance, a medical malpractice claim is not one of them.
First of all, you must file your case within the statute of limitations. If you fail to do so by the time the deadline passes, unfortunately, you will not be able to file a claim for this injury ever again. Even though there are exceptions to the statute of limitations in many states, it is better to file your claim sooner rather than later so you do not miss the deadline. If you do not know what your state’s statute of limitations is, an experienced medical malpractice attorney will be familiar with the deadline in your state and will be able to do everything possible to act in accordance with it.
Second, and depending on where your case is going to be filed, compliance with pre-lawsuit requirements such as medical expert testimonies, review boards, and notices of intent to file a claim will decide whether or not your case will be allowed to begin. An attorney that regularly handles medical malpractice cases will have the experience, resources, and procedural knowledge to ensure that your claim has the best possible chance of success.
Medical records are typically the best evidence in any medical malpractice case. Because of privacy laws that are set in place, you must sign a release form allowing your attorneys, along with the defendant’s attorneys, to obtain copies of any of your medical records needed for your case. It is a good idea to get a head start on this process by requesting copies of your medical records as soon as you think that you may have a medical malpractice case.
The sooner you deliver your medical records to your attorney, the sooner your attorney will be able to begin analyzing your case in-depth. This will also allow them to solicit medical opinions from medical professionals, including doctors, nurses, and other professionals that could serve as medical expert witnesses on your case. It is possible that after a thorough review of your medical records, an attorney will advise you not to file a lawsuit or suggest that your damages were not the result of a medical professional’s negligence. The sooner medical and legal professionals can review your records, the sooner you will be able to decide if your case has a good chance of success.
Whether formally or informally, it is sometimes helpful to give notice of a potential lawsuit to medical professionals and their insurance providers. In certain states, notifying healthcare professionals and their insurance companies is necessary to take the matter to court. However, this type of notice will prompt insurance coverage and internal review in all cases, so you may find that you can reach an agreeable settlement before filing a lawsuit. The assistance of an experienced attorney is indispensable as they will act as the liaison between you and the claims professionals who may or may not decide to take advantage of you in your case. Even though this is a mere negotiating tactic, it is no the less very unpleasant. When it boils down to it, having an experienced attorney provide the appropriate parties with a notice of intent to file a lawsuit is the best course of action.
As mentioned before, most states have a systemized pre-filing requirement for medical malpractice cases. Pre-suit requirements were made to streamline litigation, encourage settlement, and help weed out any insignificant claims. Most pre-suit guidelines require some sort of expert support, either in the form of an “affidavit of merit” that comments on the appropriate medical standard of care that was supposedly violated and any resulting injuries.
If you fail to follow these pre-suit requirements, your case can be dismissed altogether; however, you will usually get a chance to come into compliance before you lose your right to a legal remedy for good.
The last and final step in beginning a medical malpractice case is actually drafting and filing a complaint in civil court. This complaint is the formal declaration of the allegations against the defendant medical professionals and/or medical facility. Once this complaint is filed, a lawsuit will begin. The filing of this lawsuit will start the clock on when the case may get to trial. Each state’s pre-trial policies are different, but it typically takes between a year and a half to three years after a lawsuit is filed for a medical malpractice case to go to trial.
In most states, the victim’s lawyer is required to submit an “Offer of Proof or an Affidavit of Merit” when filing the lawsuit and before any pretrial investigation takes place. The purpose of the Offer of Proof or an Affidavit of Merit is to ensure that the medical malpractice suit is legitimate. Depending on the state you filed your case’s laws, the attorney is required to submit a written opinion of negligence from a medical professional who has reviewed the victim’s records or an affidavit from the attorney stating that the attorney talked through the case with a medical professional who believes the victim has a legitimate medical malpractice case. In some instances, states require a pre-lawsuit panel to consider the victim’s allegations before filing a lawsuit.
Once all pre-lawsuit policies are satisfied, litigation starts and the parties conduct “discovery,” a process where each party investigates the other’s legal claims and defenses. They send questions and document requests to the other and take depositions of all appropriate parties and witnesses in the case, typically starting with the victim and defendant.
This process lasts a year or more, depending solely on the court’s deadlines, and usually requires the parties to go back to court to get the judge’s help. It is typical for one or both parties to be unsatisfied with the other party’s response to the questions or document requests and leads to filing a motion to compel further responses. The judge will hear each side’s argument and make a decision. This often happens multiple times during the lawsuit.
When the discovery period comes to an end, the attorneys will begin talking about the settlement. Sometimes attorneys can settle a case amongst themselves, but in other cases, it will go to mediation, where clients and attorneys go in front of an unbiased mediator to settle the case.
Usually, mediation will work, but when both sides are too far apart, the case will be scheduled for trial. It is important to note that just because a lawsuit is scheduled for trial does not necessarily mean the trial will happen on the specified date. Many trials are delayed and rescheduled due to the court’s schedule and delays in the case’s progress.
Johnnie Cochran had long dreamed of creating a national law firm of men and women from all races, religions, creeds, and backgrounds to show how well we could all work together to make the world a better place. When Mr. Cochran started The Cochran Firm, his mission was “a journey to justice.” Today, with more than 35 offices across more than 20 states, the attorneys at The Cochran Firm work every day to fulfill that dream and continue that mission by working for our clients with the same work ethic and dedication to justice exemplified by Mr. Johnnie Cochran himself.
The Cochran Firm is a diverse group of highly skilled and experienced lawyers that are dedicated to bringing high-quality representation to injured people and their families. Our experienced attorneys at The Cochran Firm are among the nation’s most recognized and successful attorneys in the country. When navigating through the legal process, you deserve to have an experienced attorney by your side. Our attorneys at The Cochran Firm know how to fight for you.
Here at The Cochran Firm, our medical malpractice attorneys are ready to help victims who have been devastatingly injured due to the negligence of a medical professional receive the maximum compensation and financial recovery for all of their pain and suffering. Our attorneys work closely with each of our clients using pooled resources and their access to legal expertise to ensure the most effective legal representation available is provided.
You need the help of an experienced attorney who has proven successful results in other similar cases to guide you through the process and help you to receive the monetary damages you are entitled to under the law. At The Cochran Firm, we have the offices, the experience, the results, and the resources to aid clients throughout the United States.
If you’re looking for an experienced lawyer to help you pursue justice for your medical malpractice case, please contact our medical malpractice attorneys at The Cochran Firm today for your free, no-obligation initial consultation today. We serve the entire country with offices in many major U.S. cities.