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  • Failed to treat or behaved in a way that caused delay in treatment
  • Made a critical surgical error
  • Performed a surgery on the wrong site
  • Left foreign object in the body following a procedure
  • Prescribed inaccurate medication or dosage
  • Failed to monitor a patient during a procedure or gave poor follow-up care
  • Issued a premature patient discharge

During an initial consultation, your medical malpractice attorney may examine your case to assess whether you can prove negligence on the part of the medical professional or healthcare provider.

Medical Malpractice and Negligence

In order to win any medical malpractice case, a patient must demonstrate negligence in the court of law.

The four ground rules of negligence are as follows:

  1. Duty – Once the client and healthcare provider establish a doctor-patient relationship, the healthcare provider is now bound to a duty of care. This duty requires physicians or healthcare providers to adhere strictly to the established medical guidelines in their field of care. Doctors also have a duty of informed consent to warn patients of any known risks associated with any procedures.
  2. Breach – After establishing the duty of care, healthcare providers must administer reasonable care and treatment. These professionals must follow through with established procedures and actions. Violation of standard protocol would constitute breach of care.
  3. Injury – In order to win a medical malpractice lawsuit, the patient must establish that an injury occurred due to the actions of the healthcare provider. It is important to note that any injury must be the result of negligence (either by act or omission) of the healthcare provider or healthcare facility.
  4. Damages – Finally, the attorney in the case must prove that the patient suffered damages (monetary or non-monetary) as a result of the injury. Examples of damages or harm may include physical pain, mental anguish, further medical bills, loss of wages or earning capacity, disfigurement, or future caretaker expenses.

In each of these four steps, the representative attorney must prove that the healthcare provider acted in a way that was beneath the “generally accepted standards” of patient care. It is often helpful to have an expert medical witness to testify and identify which standards of care the healthcare provider violated in your situation.

How to Open a Medical Malpractice Case

It is important to stand up for yourself if you have had a traumatic experience that caused you great harm.

The basic first steps in a medical malpractice lawsuit are as follows:

  1. Review the statute of limitations for filing a lawsuit in your state. This time period determines whether you can pursue damages. For example, the statute of limitations in the state of Colorado is no more than two years from the date of the injury and no more than three years from the act that caused the injury. Since some state’s statute of limitations expire as early as six months, you need to act as quickly as possible if you believe that your healthcare provider behaved negligently.
  2. Attempt to address the problem with the healthcare provider. Many states require that you attempt to resolve the problem with the healthcare provider before filing the lawsuit. If the provider is unwilling to meet a reasonable solution, you can proceed to the next steps.
  3. Inquire with the state medical board about the process for filing a complaint. If the medical provider’s negligence resulted in injury or harm, this is usually grounds for filing a an official complaint with the state medical board. The board also has its own protocol for disciplinary action against physicians licensed in the state. In addition to the state medical board, some states have special medical malpractice review panels that investigate and either confirm or deny that malpractice has occurred. In these states, the findings of the medical malpractice review panel may be used in court.
  4. Determine if your state requires a “certificate of merit” before filing the lawsuit. At least 28 states require you to obtain a certificate of merit from a medical expert in order to establish that you have reasonable grounds for a lawsuit. Another 32 states and territories have guidelines about the credentials necessary for a medical professional to qualify as an “expert witness” on your behalf. Other states have guidelines or who can write an “expert affidavit” on your behalf. Although this process may seem tedious and cumbersome, many states have put these requirements in place to prevent malicious or frivolous lawsuits. Keep in mind that obtaining a highly credentialed certificate of merit and expert witness can only strengthen your case in the long run.
  5. Consider settling the matter out of court. As you can see, going through with a lawsuit and trial can be extremely time-consuming and expensive. For this reason, most healthcare providers settle legitimate cases outside of court. You may find that a settlement save energy and help you tend to your injury better in the long term.

Medical Malpractice Entity Review
A competent medical malpractice attorney can assess your case during an initial consultation. This attorney can help you determine whether you can get a reasonable settlement or whether you have a case for trial.

It is important to gather all evidence for discovery and pinpoint the entity responsible for the injury in your case. These individuals may include (but are not limited to) the following:

  • Physicians and surgeons
  • Nurses or nurse practitioners
  • Anesthesiologists
  • Physician’s assistants, technicians, and hygienists
  • Healthcare facilities, clinics, managed care organizations (HMOs), and hospitals
  • Pharmaceutical companies
  • Medical device companies

For example, a nurse practitioner may prescribe the wrong treatment plan, or an ill-equipped medical device may malfunction and cause serious bodily harm. An experienced medical malpractice attorney can help you identify the issue so that you can take the appropriate legal action.

Hospital and Healthcare Facility Negligence

Although traditionally associated with social services, virtually all hospitals are now corporations. Like any other corporation, the law can hold a hospital corporation responsible for negligence. Furthermore, the law can hold a hospital legally responsible for the negligence or inaction of any of its staff. A hospital’s staff infrastructure includes physicians, nurses, assistants, and technicians – all of whom fall under the umbrella of corporate liability.

Hospital corporate boards must ensure that all employees meet state requirements for minimum education, licensing, and training. If the hospital corporation fails to adequately vet staff, the court may hold the corporation liable. There are currently two legal theories of liability: respondeat superior doctrine and corporate negligence doctrine. Respondeat superior holds that a corporation is responsible for the misconduct of any representative agents. Corporate negligence holds that a hospital can be vicariously liable for the actions of its employees or affiliated entities (such as a private partner).

A seasoned medical malpractice attorney can help you unearth even more levels of liability if they exist. For example, the law requires hospitals to ensure that enough registered nurses (RNs) work every shift to attend to patient needs. If patients have suffered due to a shortage of nurses, the court can hold the hospital liable for negligence in patient care.

Another example is when a nurse or assistant fails to follow a doctor’s orders in patient care or fails to report any changes in patient condition. The court can hold the hospital liable for the employee’s inefficient action. Furthermore, the hospital can also face liability if an employee follows a doctor’s orders that clearly contradict with established medical practices. A good medical malpractice attorney can examine the details of your case and help you decide the right course of action.

Types of Medical Malpractice Damages

If you have a strong medical malpractice case, you may be entitled to damages from the liable party. The types of medical malpractice damages include the following:

  • General damages – These damages include compensation for physical, mental, and emotional suffering. The damages can also address loss of future wages and loss of use or enjoyment.
  • Special damages – These damages cover medical bills and lost wages. The damages may also cover attorney’s fees.
  • Punitive damages – These damages specifically penalize the healthcare provider or entity for negligence or recklessness. It is important to note that some states and territories place legal caps that limit the amount a court can award in punitive damages. For example, at least 33 states place caps on monetary awards in punitive damages in order to prevent abuses to the system.

Choosing a Medical Malpractice Attorney

It is important to choose an attorney with a clear track record in this area of law. Medical malpractice is a highly specialized field that requires attorney expertise. The reason is that there is often overlap in the relationship between medical practice and legal regulation. Your attorney must be sharp enough to understand both. It is also important to note that some attorneys specialize in defending physicians against patient lawsuits while other attorneys solely work for patients in filing lawsuits. Make sure you choose the right attorney who is on your side and can address your needs and concerns.

“We were in the midst of a major storm, and we needed some calm. This law firm provided that for us.”

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