The Basics
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To determine if someone is "liable" - that is, legally responsible, for your injuries, you need to figure out if a health care provider was negligent and if so, whether that negligence caused your injury. Just because your case turned out poorly doesn't necessarily mean that a doctor was negligent. The key factors in determining negligence are the accepted standard of care, whether that standard was followed and, if not, whether not following that standard caused the injury.
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Negligence can occur at various stages. A health care provider may misdiagnose a problem, or fail to treat the injury or illness properly or administer the wrong medication. A doctor can also be held liable for failing to adequately inform a patient about the risks of a procedure or about alternative treatments.
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Even if you can prove that a doctor was negligent, you don't have a case unless you can document that the negligence caused your injury or worsened your condition. In a case involving misdiagnosis of cancer that caused a patient's death, for instance, the health care provider may argue that the illness was terminal and that nothing could have been done anyway.
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If you establish liability you are entitled to damages, which can include compensation for medical bills, lost wages and pain and suffering. The damages may cover losses you've already suffered as well as future medical bills and lost wages.
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Damages vary widely depending on each person's situation - even two 42-year-old women who both lose their right index fingers through botched surgical procedures may see very different outcomes. The amount of damages you receive depends on how the injury affects your earning potential and quality of life. So a concert pianist and an avid bowler may get more for a missing finger than a lawyer and confirmed couch potato whose life won't be as disrupted. A good trial lawyer who takes a look at the witnesses, the individual and the medical circumstances can estimate the potential damage awards.
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Damages must be substantial for lawyers to take on a case, because of the huge expenses involved - it's not unusual for a lawyer to dole out $30,000 to $50,000 before the case is resolved. Many medical malpractice cases require two or three doctors to serve as expert witnesses to support the injured patient's case - doctors who may charge upwards of $1,500 an hour to review records or answer attorneys' questions.
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Malpractice claims tend to be a fight to the death; they're settled less often than most other cases, which means more time and expense.
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Even if you decide you can establish liability, the person or organization you're suing must have the resources to pay damages for your case to be worthwhile. Usually, this isn't an issue in the case of a doctor, hospital or clinic. The vast majority of health care providers are insured and the insurance company steps in to cover the loss in the event of a medical malpractice claim.
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Keep in mind that you have a deadline to file your claim. The statute of limitations varies by state but is typically about two years. That time often starts running at the moment of the negligent act, but other factors may come into play, such as when you learned of the negligence and when you stopped receiving treatment. You also may have to consider other filing deadlines if, for instance, your case involves treatment by a government agency, such as a county hospital.
Getting Help
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Medical malpractice cases are complicated, risky, expensive time-suckers - lawyers who handle them turn down a lot more cases than they accept. So finding someone who's willing and capable of handling your case may take some time. Here's what you need to consider:
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Check out the lawyer's track record. Ask what percentage of their cases are medical malpractice; the higher the better. Also find out what portion go to trial rather than settle. If the lawyer usually settles, the insurance companies will know that and negotiate accordingly.
- Evaluate references. Do lawyers you respect recommend the attorney? Are past clients satisfied? If privacy concerns prevent the lawyer from sharing the names of their clients, consult the local newspaper archives; you'll probably be able to dig up a few names of clients there.
- How about professional activities? Your lawyer should, of course, belong to the national or local association of trial lawyers. But it doesn't take much to pay dues and join - check out whether he or she is an active member or holds leadership roles that suggest your lawyer has the respect of their peers.
- Is the firm solid? These cases require lawyers to dish out a pile of money up front for things such as experts and medical research. Make sure they've got the resources to support that kind of outlay.
If you're having a hard time getting a lawyer, consider rounding up your medical records and having them reviewed by a health care professional. There are a number of good, caring nurses willing to help. Coming to a lawyer with the preliminary investigation already done could be a good way to get him or her to take your case.
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But if you keep hearing "Great case, but I don't have time," guess what? You might not have such a great case. Sometimes lawyers say that instead of arguing about the merits because it'll get you off the phone faster. It may be time to drop it.
What's Next?
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Malpractice cases tend to take a long time. They require lots of research, and insurance companies and providers are generally reluctant to settle because they typically win. They also know they can weed out the small cases by making them too costly to pursue. If you decide to pursue the case there are some things you should expect along the way.
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Regardless of how seriously you've been injured, it's unlikely your lawyer can tell you how successful your case will be straight off. That requires review of the medical records and consultations with experts.
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About 90 percent of all cases settle before they go to trial. Although that rate is somewhat lower with medical malpractice cases, there's still a chance your case will settle.
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In some states, you may be required to first try to resolve your case through mediation or arbitration. That can mean anything from sitting in front of a panel in a hotel conference room to meeting with an arbitrator in a courtroom. In some instances, the process may result in a speedier, cheaper resolution. In others, it's a waste of time. Your lawyer or other people who have pursued similar cases can tell you what to expect.
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If a lawyer agrees to take your case, it will be probably be handled on a contingency basis, which means you might not have to pay anything up front, but your lawyer will expect anywhere from 30 percent to 50 percent of whatever damages you may receive.
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Keep in mind, though, that regardless of whether your claim is successful, in some states you may be liable for the significant up-front costs of acquiring your records and consulting with experts. Make sure you agree at your first meeting on how to handle those expenses.
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During your first meeting, you'll be asked to sign release forms giving your lawyer and experts access to your medical records. Generally, your lawyer will have a medical professional - many times a nurse consultant - review the case to determine if there's evidence of malpractice. If there is, the next step is to retain a specialist who can testify if the case goes to court.
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Your case may continue for years, especially if it goes to trial and is appealed. During this time, there may be periods during which you hear from your lawyer or law office staff every day and there may be several week stretches where you hear nothing at all while both sides wait for court dates or filing deadlines.
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If you're suing your regular doctor, you'll want to talk with your lawyer about whether you want to continue treatment at that clinic or find someplace else. The most important consideration, of course, is ensuring you get the best health care possible.
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