Introduction to Medical Malpractice

All physicians aspire to render conscientious and competent care and, in nearly all instances, that goal is easily achieved. On occasion, however, a physician’s conduct may fall below “the standard of care.” The standard of care is that level of care that would be provided by a reasonable doctor exercising ordinary care. It is not a standard of excellence or superior practice. Rather, the standard of care is simply what a competent doctor would have done under similar circumstances. The failure to exercise the standard of care is commonly referred to as medical negligence or medical malpractice. If a physician’s conduct falls below the standard of care, and if a patient is harmed by that occurrence, then the patient may have a valid claim against the treating doctor.

To have a successful claim of medical malpractice, the Plaintiff (i.e. the party initiating a lawsuit) must establish the existence of four specific factors. These factors --- duty, breach, harm, and causation --- are commonly referred to as the elements of negligence. If any single element is missing, then the Plaintiff’s claim is likely to collapse. An exploration of these elements is the first step in objectively evaluating any medical malpractice complaint.

Duty is the legal relationship between two parties. In the practice of medicine, there is a duty between the doctor and the patient. When a patient presents for evaluation by a physician, a duty is established and the physician must care for the patient in an appropriate manner. In other words, the physician has a duty to treat the patient, and must perform that duty in a competent manner. Since duty is usually quite easy to prove, it is only disputed under special circumstances in medical malpractice cases.

Breach of duty is a failure to maintain the duty that the physician owes to the patient. In basic terms, this is the “malpractice” of which the patient is speaking. When a treating physician departs from an appropriate “standard of care,” he or she may be committing “malpractice” (also know as medical negligence). If a physician is negligent, then he or she has breached the duty to appropriately care for the patient.

Harm is the personal loss, injury, or deterioration that results from the negligence of the physician. A patient is harmed, or “damaged,” when a physician commits “malpractice” and the patient suffers an identifiable effect. This harm may take the form of pain, suffering, scarring, loss of life, or any of a number of other injuries. Essentially, harm is the way in which the malpractice affected the patient. Although damages may be emotional, physical or financial, the law allows for a successful Plaintiff to recover a monetary award in order to compensate for the harm sustained. In unusual cases, “punitive damages” may be awarded when a defendant physician has willfully caused harm. The dollar amount that can be recovered depends on a variety of specific factors including the legal theory, the state in which the claim is filed, and the actual damages suffered by the patient.

In addition to medical negligence, there are other wrongful acts that a physician may commit. These include assault, battery, invasion of privacy, breach of confidentiality, and violation of civil rights. Additionally, physicians practicing emergency medicine must abide by a series of federal laws (i.e. EMTALA; Emergency Medical Treatment and Active Labor Act) that protect patients who present to an emergency department.

When considering a claim of medical malpractice, patients and their attorneys also must be aware of the “statute of limitations.” This statue defines the period of time in which a claim must be filed. The statute of limitations for medical negligence varies from state to state and generally ranges from 1 to 3 years. The statute of limitation for other wrongs also varies in different jurisdictions. In general, the statute of limitations begins to toll at the moment that a negligent act was discovered, or at the moment that a reasonable person should have discovered that a negligent act occurred. The failure to file a claim prior to the expiration of the statute of limitations will often bar a patient from ever filing the claim again.

How Do I Know if I Have a Case?

So, how do you know if you have a case? This is a complex question and there are many ways to find an answer. Before asking that question, however, you need to decide if you want to have a case. Litigation is a long and complex process that should not be entered into lightly. It is one of the most important decisions that you will ever make, and it may place you in a variety of uncomfortable situations. For example, you will need to relive the entire medical experience as you recount the medical details during pretrial preparations, depositions, and possibly in the courtroom. You will be asked extensive questions by attorneys from both sides. You will also come face to face with the physician that you are accusing of malpractice when you encounter him or her at deposition or at trial. At the extreme, the process can drag on for years, cost thousands of dollars, and yet still result in a verdict in favor of the physician.

On the other hand, any patient who has been negligently harmed is entitled to file a complaint, and that complaint takes the form of a malpractice lawsuit. It is a right under our system of law, and if a patient truly wishes to seek justice for their injuries, then the legal system is there to serve them. At this point, the patient (or the patient’s estate) becomes the plaintiff and the physician becomes the defendant.

For those considering this path, the first step is to speak with an attorney who specializes in medical malpractice law. Most attorneys will provide a free telephone consultation or a free initial meeting, and this serves as a good starting point to learn more about your potential case. The attorney may ask you to get copies of your medical records, or he may have you sign a release that allows the law firm to obtain them. The records will be required in order for the attorney to have a medical expert review them.

Alternatively, some people prefer to have a medical expert review the records themselves. This approach allows the patient to speak with an expert directly and get a quick “yes or no” answer about what happened. For some families, just having someone explain what happened may be all they need in order to feel comfortable about their medical situation. This may be acceptable if the person knows a physician who is willing to do this and the physician is experienced in legal matters. It should be strongly noted that many physicians lack knowledge of the legal requirements for medical malpractice, and the use of an inexperienced physician may lead to a dangerously incorrect opinion. Of course, THE MEDICAL EXPERT is available to directly consult with patients and their families. For most people, however, the usual route is to speak directly with an attorney.

What does it cost to find out?

As for the cost, it is usually quite expensive to fully litigate a medical malpractice case. Expenses arise from preparing medical records and other documents, obtaining a preliminary case review, securing additional expert opinions and testimony, creating trial exhibits, and paying for the time of all experts and attorneys involved in the case. There are several ways that these charges may be paid. In some cases, the attorney will ask for an “upfront fee” in order to begin the case. This is spent on copying the medical records and getting an initial expert opinion as to whether or not the case has medical merit.

Some attorneys, however, may decide to perform the initial investigation and pay for the fees themselves. This first step depends on the complexity of the case and typically costs between $500 and $2000. If the case is felt to have merit and the attorney decides to proceed, then further expenses will be incurred. At this point, most attorneys handle medical malpractice cases on a “contingency fee” basis. This means that the attorney will be paid his or her hourly rate and expenses from the funds recovered by the plaintiff if the plaintiff wins or settles the suit. In general, attorneys receive 25% to 40% of the amount awarded to the plaintiff, plus expenses which are paid from the remaining amount.

Regardless of the outcome of the case, the plaintiff may still be responsible for some expenses, though most attorneys will only try to recover their fees and expenses if the plaintiff wins. The bottom line is that medical malpractice cases are expensive to pursue, but a plaintiff may be able to proceed with minimal or no cost at all. Talk to your attorney to learn more about his or her specific fee schedule.

Where do I go Now?

You are welcome to have THE MEDICAL EXPERT review your case for a flat fee of $750. Complex cases, and those with extensive records, may require an additional fee that can be discussed when you call THE MEDICAL EXPERT.

This preliminary analysis will answer your questions about all aspects of the patient’s care. It will also determine whether or not you may have a potential claim for medical malpractice. In most cases, this basic level of service is an excellent starting point in order to educate patients and their families about what occurred during their medical encounter. Realizing that most cases are without true negligence, this review may also provide piece of mind and serve as a point of closure. Since THE MEDICAL EXPERT does not provide legal advice, you will still need to contact an attorney for specific legal questions. THE MEDICAL EXPERT can also refer you to an attorney in your area at no additional charge.

Please feel free to contact us for a confidential discussion of your care. You may Ask the Expert! Or, call toll-free: (888)335-3652.

NOTE: The information on this web site is provided as an educational courtesy by THE MEDICAL EXPERT. It neither is intended to provide specific legal advice, nor is it a substitute for consultation with a licensed attorney