Medical Malpractice Basics

Understanding Medical Malpractice and Filing Medical Malpractice Claims

When a medical professional, such as a physician, fails to conduct their medical duties in a competent and responsibly way and causes harm to a patient it may be considered medical practice. However, these cases are governed by strict rules that define specific requirements needed before a case can be presented in court. While these laws vary from state to state, there are general guidelines that apply to the most common types of medical malpractice claims. Here is an overview of the general principles regarding filing claims.

Basic Medical Malpractice Claim Requirements

If you believe that you or a loved one was harmed by a medical professional and you want to file a medical malpractice claim against that physician, you will be required to prove –

• • That you had a medical relationship with the physician you are filing the claim against. You can’t file a claim against a physician who was not directly involved in your care. For example, you cannot file a claim against a physician for advice given to someone else. In fact, filing a claim against a physician who was consulted in your care can be difficult if they did not treat you. Proving the relationship is a basic component of the lawsuit and generally very easy to prove.
  • The physician was negligent in your care, diagnosis, or treatment. This does not mean that you can file for medical malpractice because you are dissatisfied with your treatment. You will be required to prove that your physician failed to treat you in accordance with medical standards. Medical malpractice laws require that you show that the harm caused to you by a physician would not have occurred if the physician would have been reasonably skillful and careful. For example, you may have a medical malpractice claim if you can show that the course of treatment prescribed by your physician was very different than one another physician would have prescribed, and you were injured by your physician’s course of treatment.

• • The negligence of your physician caused your injury. Because medical cases can be quite complex, you must show that your physician’s negligence “more likely than not” caused your injury. The difficulty comes with trying to prove that the physician’s negligence caused injury and that it was not because of an underlying an injury, illness, or disease. As an example, if a cancer patient dies, it would be up to you to prove that the patient died because of the treatment or diagnosis of the physician, and not because of the cancer. For this reason, medical experts are usually called into testify that the negligence of the physician caused the injury or harm.
  • The injury caused by the physician’s negligence caused specific harm or injury. A patient is not able to sue for medical malpractice if they did not suffer harm, even if the physician treated that patient with substandard care.

Types of injury that can be used to file a medical malpractice claim include –

• • • • Mental anguish and suffering
      • Physical pain and suffering
      • Additional medical costs
      • Missed work and lost wages

Most Common Types of Medical Malpractice Cases

There are any number of situations that may lead to a medical malpractice claim, everything from a physician failing to remove surgical sponges from an incision following an operation, to a doctor failing to warn a patient about the contra-indications of a prescription. The common types of medical malpractice claims are –

• Diagnosis – If the physician failed to diagnose an illness that could have resulted in a better outcome had proper diagnoses been made, you may have a medical malpractice claim
• Improper treatment – If the physician fails to issue competent treatment, or if the physician chooses the correct treatments but fails to administer it properly, then a patient may have a medical malpractice claim.
• Failing to warn patients of the potential risks involved with a particular treatment or procedure, especially if the patient would have declined to have the procedure or treatment had they known of those risks may open a physician up to a medical malpractice case, especially if the patient suffers an injury that the doctor should have warned about.

Medical Malpractice Special Requirements

Every state has its own guidelines regarding medical malpractice and it is in your best interest to know the specific guidelines for your state, or the state where the medical malpractice occurred. However, the following rules are applicable in most states and in most cases.

1. Statute of Limitations

The statute of limitations is essentially a time limit on how long you have to file a lawsuit with the courts. The Statute of Limitations for medical malpractice claims varies by state, but generally allows claims to be filed up to two years following the malpractice. If you do not file a claim within the time period set by your state’s statute of limitations, your case will be dismissed.  Be aware that in some states, the time limit established by the statute of limitations begins when the physician negligence occurred, while in other states, the time limit begins when the injury was discovered, or when it should have been discovered.

2. Medical Malpractice Review Board

In many states, a patient is required to file a medical malpractice injury claim to a malpractice review board prior to filing a claim with the courts. The board, made up of a panel of medical experts, reviews the evidence of the case, hears arguments from both sides, and even the testimony of any experts called. The panel will decide if you have a legitimate medical malpractice claim. You are able to present the medical panel’s findings in court; equally, the court may dismiss a case in which the panel found no medical malpractice. The medical review panel does not make any decisions regarding compensation for damages.

3. Expert Testimony

Expert opinions and testimony are usually required at the malpractice review board meeting, and will be a critical part of your medical malpractice case. In fact, an expert testimony is required at trial. Every state has its own rules regarding what makes someone an expert, but generally it is someone with a particular amount of experience or skills that are relevant to the medical malpractice case. There are only very few situations in which expert testimony would not be required for a medical malpractice claim.

4. Compensation Limits

Most states have a cap on the amount of money that can be awarded in medical malpractice cases, though the maximum amount varies widely across the country. This means that should a jury award damages to you in an amount above the cap for that state, the court will still only award you the maximum amount under the cap.

Some states require that a patient give the physician they are filing the claim against a description of the medical malpractice claims before the patient can file suit with the courts.

Getting Help

If you or someone you love believes they have been injured by the negligence of their physician or other medical professional, it is imperative that you contact a medical malpractice attorney as soon as possible.