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Frequently Asked Questions About Medical Malpractice
1) What is "medical malpractice"?
Medical malpractice is a broad term generally used to describe any
treatment, lack of treatment, or other departure from accepted standards
of medical care, health care, or safety on the part of a health
care provider that causes harm to a patient. Examples of medical
malpractice are too numerous to list. Medical malpractice can include,
however, misdiagnosis, improper treatment, failure to treat, delay
in treatment, failure to perform appropriate follow-up, prescription
errors, etc. In many instances, medical malpractice is not obvious
to a lay-person and requires the review and analysis by medical
experts.
2) What must be shown to prevail in a medical
malpractice case?
While there are various types of medical malpractice claims, generally
speaking, a claimant must usually show the following:
The health care provider owed a duty to the patient
The health care provider breached that duty
The patient suffered an injury, and
The patient's injury was a proximate cause of the health care
provider's breach
A physician owes a duty to a patient once a "doctor-patient"
relationship has been formed. Such a relationship is usually formed
when the physician agrees to care for the patient. Nonetheless,
even if it is established that a duty existed and the health care
provider breached that duty (eg. failed to meet the requisite standard
of care), a claimant may not recover unless the claimant suffered
injuries that were a direct result of the breach. If the breach
resulted in no harm to the patient, a claimant generally has no
right to recovery.
3) What is the first step in pursuing a
medical malpractice claim?
The first step in pursuing a medical malpractice case is suspecting
that one may have been the victim of medical malpractice. While
not every bad result is due to medical malpractice, one who develops
a "gut feeling" that something was wrong should consult
a qualified attorney to review the matter, who often will consult
with medical professionals. This process often involves the obtaining
and review of medical records and other pertinent information. If
it is determined that one has a good case, the next step is usually
to give written notice of the claim to the individuals or entities
that are believed to have committed the medical malpractice.
4) Will I have to go through a trial in
court before my case is finished?
While some cases do require a formal trial proceeding, many of our
cases are settled before they go to court.
5) I’ve heard that lawsuits take
a long time. Is that true with malpractice cases?
Malpractice cases don’t necessarily take any longer than other
cases, but doctors, hospitals, and insurance companies often try
to drag them out. Malpractice claims are often delayed because the
doctor or hospital knows they will ultimately have to pay. In other
words, they know that they made a horrible mistake. We work hard
to prevent these delays.
6) I know lawyers can be expensive. How
does your firm charge?
You pay nothing unless and until we recover money for you. Our fee
is a percentage of that recovery.
7) I have no idea how much money I should
ask for or expect. What kind of expenses are typically included
in a settlement? A typical medical malpractice claim will include compensation
for pain and suffering, payment of medical expenses for treating
the injury caused by the malpractice and reimbursement for any past,
present or future financial losses that you have incurred as a result
of the malpractice. However, this varies by State.
8) It’s taken me several months to
work up the nerve to do anything about my situation. Am I running
out of time to file a lawsuit against my doctor?
"Statutes of limitation" govern the length
of time one has to file a lawsuit or be forever barred from pursuing
such claim. Each State has different statute of limitations periods
which apply to personal injury cases under various circumstances.
In some cases, the statute of limitations may be as short as one
year, while under different circumstances, it may be eight years
or more. Many factors bear upon when the applicable statute of limitations
period expires including the age of the plaintiff, the type of personal
injury claim, the particular facts giving rise to the injury, and
others. One must make absolute certain that they are aware of when
their statute of limitations period expires, or risk jeopardizing
their legal rights. An experienced personal injury lawyer can be
of assistance in this regard.
9) Nothing serious has happened to me yet,
but I’m beginning to question my doctor’s care. What
can I do to prevent malpractice?
The best advice we can give to you is to listen to your body. If
your doctor tells you that you’re fine, but you don’t
feel fine, make another appointment.
As you are listening to your body, educate yourself on what’s
happening. Use the library and the Internet to find out about your
symptoms and what tests are usually run for them.
Have your doctor write everything down for you. If your doctor denies
you a particular test or a referral to a specialist, have the doctor
explain in writing the reason for the denial. If the doctor won’t
write it down, you should seek counsel by a qualified attorney.
10) Have I waived my rights because I
signed a consent form?
This is a question asked by many. A consent form does not give the
health care provider a license to commit malpractice. While the
execution of a typical consent form indicates acknowledgement of
stated risks and complications associated with a given treatment
or procedure, it does not relieve the health care provider from
his or her duty of meeting the standard of care associated with
such treatment or procedure.
Drug-switching practices happen and are very dangerous
Another public-spirited drug giant, Merck, was forced to pay a settlement of $1.9 million to 17 states in 1995 for drug-switching practices involving its Medco subsidiary. Medco pharmacists, who had given excessively favorable treatment to Merck products, were thereafter required to reveal their Merck connection to their customers.
Newsroom
News about Medical Malpractice cases in Montana and nationwide:
Definition:
Liability in which each liable party is individually responsible for the entire obligation. Under joint-and-several liability, a plaintiff may choose to seek full damages from all, some, or any one of the parties alleged to have committed the injury.
Res ipsa loquitur
Definition:
The use of res ipsa loquitur should be prohibited in medical malpractice cases because under this doctrine the mere fact that the injury occurs means that the defendant was negligent, although it is not all the time.
Confidentiality
Definition:
The principle that prohibits physicians from disclosing confidential comments made to them by patients unless required to do so by law. The law may require physicians to violate patient confidentiality if the patient poses a serious threat to his or her own health and the well-being or that of others.
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