If you are involved in a situation where a physician’s medical error rises to the level of medical malpractice, you may wish to initiate a law suit against the treating physician. A judgment in your favor may provide you with compensation for your medical expenses, pain and suffering, and lost wages. Otherwise, an act of medical malpractice may leave you and your family with insurmountable debt.
The path to recovery is not always a clear one. Medical malpractice law suits are overwhelming and complex. If you choose to file a law suit, you will almost certainly need to hire an attorney to aid with investigation and the filing of your claim. InjuryBoard has developed this article to assist you in your legal battle, help you wade through the complexities of the legal system, and understand which qualities you should seek when hiring a medical malpractice attorney.
What to Look for in a Medical Malpractice Attorney
Certainly your medical malpractice attorney should be honest, trustworthy, experienced, and competent. However, your attorney should possess other qualities as well. An attorney’s reputation can be a tremendous influence in obtaining a favorable settlement.
An attorney who is known for vigorously fighting for his clients has a greater ability to demand fair compensation than an attorney who settles cases after the first offer. Insurance companies know which attorneys will go all the way to trial with a case in search of a favorable outcome for their clients. Since trials often involve long, tedious, expensive processes, insurance companies prefer quick resolutions of claims. Thus, in the interest of avoiding trials, the companies are likely to offer high settlement amounts to clients represented by attorneys with reputations for fighting for clients’ rights.
In light of this trend, you will benefit from doing research to find an attorney with a reputation for being successful. Also note that many jurisdictions have short statutes of limitations (meaning that patients have a limited amount of time after a medical error to bring a claim), so you should meet with an attorney as soon as possible should you decide to file a law suit.
Incident and Investigation - Medical and Legal Considerations
There are four key elements to a viable medical malpractice claim: duty, breach, causation, and damages. Before agreeing to take you on as a client, a good attorney will ask you to meet for an initial consultation . During this meeting, the attorney will ask a series of questions to learn more about your accident, your previous medical history, and your current medical condition. Your attorney must be able to prove all four elements of the claim in order to ensure a fair recovery for your claim. If one of the elements is missing, the court will not find in your favor. The following is an overview of the issues your attorney will consider when deciding whether he/she can take your case.
Duty – Did the doctor owe you a duty of care? Generally, a physician owes a duty of care to the patient if a physician-patient relationship exists. The doctor owes his/her patients the standard of care of an average physician. Whether an excellent doctor would have committed a medical error in the same situation is irrelevant. The doctor need only perform as an average doctor would have performed. Note that you may hold a specialist to a higher standard than a general practitioner.
Breach – Did the doctor breach (fail to provide) the duty of care? A physician breaches his duty of care to a patient when his treatment falls below the standard of care required for a similarly situated physician. Since the standard of care for a general physician is that of an average doctor, a general physician breaches his duty of care when his treatment is deemed below average. Again, please note that a specialist may breach this duty more easily than a general physician because specialists are often held to higher standards of care.
Causation – Was the doctor’s breach of medical duty the direct cause of the patient’s injury? In order to prove causation, one must prove that there is a reasonable degree of medical certainty that the doctor’s breach caused the harm to the patient. This means that more likely than not (51% chance), the breach caused the harm.
Damages – Did the breach cause economic damages to the patient? Damages may be in the form of unwarranted medical bills or lost wages. A patient may also be awarded damages for pain and suffering, and in rare cases, punitive damages. There are a couple different types of damages to which you may be entitled.
Compensatory Damages – This form of damages serves to reimburse patients for economic damages and non-economic damages caused by medical malpractice. Economic damages include lost wages, medical expenses, and life care. Many non-economic damages revolve around physical and psychological harm. Usually, these types of harm are caused by loss of limbs, organs, or senses (such as vision or hearing). Patients can also recover for severe pain and emotional distress. The patient’s family can recover for reduced enjoyment of life due to disability or loss of a loved one.
Punitive Damages – Generally, courts are reluctant to award punitive damages for medical malpractice lawsuits. Courts usually reserve punitive damages for extremely egregious conduct that rise to the level of willful and wanton. A doctor may be subject to punitive damages if she fails to treat a very obvious and serious illness, alters medical records after the fact, fails to admit a mistake, or consciously or intentionally fails to exercise due care.
The Bottom Line - Financial Considerations
If the facts of the accident or injury seem to make a legal case possible, a good attorney will then enlist a medical expert(s) to conduct a medical investigation and determine whether your case makes sense financially. In addition to containing all the necessary legal and factual elements, it must also be possible for an attorney to try your case in terms of the costs that will be spent versus the damages that might be recovered.
When evaluating the financial viability of a case, vocational experts and economists will consider the circumstances of the case in terms of the unique aspects of the claimant. The earning potential of the patient, whether the person was already retired, and which insurance company is involved are some of the other factors the economists must take into account.
Despite the fact that all four elements of a case can be proven, many attorneys hesitate to take cases that will not yield a large financial award for their clients. Preparing a case for trial can be emotionally taxing and time consuming, and some attorneys refuse to bear these burdens for minimal benefit.
When the investigation is complete, the attorney will decide whether or not to take the case.
Read the next article in the series: Tort Reform and the Effect of Medical Malpractice Caps