Medical Malpractice

Medical Malpractice Overview

There are any numbers of medical professionals that can commit medical malpractice. Doctors, dentists, anesthesiologists, and health care providers of every description.

The vast majority of claims arise out of negligence. With regard to negligence cases, your attorney must prove that the practitioner unsuccessfully met the standard of care required of a prudent professional with similar qualifications.

Doctors are expected and required to know their limitations. They are also required to obtain advice from specialists when appropriate, as well as order the proper diagnostic testing prior to prescribing drugs or performing procedures that could result in injury to the patient.

In the event the practitioner has not met these minimum standards of care, malpractice may have occurred.

It is not uncommon for practitioners to "guarantee" a favorable result in elective procedures such as face-lifts or breast augmentation. The "guarantee" whether it was verbal or written is considered a contract. Malpractice can occur if the results promised were not attained.

Medical professionals are required by law to obtain "consent forms" and explain all of the risks related to the procedure before treatment. Failure to obtain consent forms could be considered malpractice. Certain conditions apply.

Malpractice also may arise due to a professional's failure to use adequate levels of care, skill or diligence in the performance of their duties. If that failure causes harm to the patient Malpractice may have occurred.

Your Case Evaluation

To determine whether you have a claim, medical malpractice lawyers consider whether the medical practitioner's negligent conduct wrongfully caused your injury.

* Negligence - Most frequently, the Negligence of the medical professional is the cause of an injury, resulting in harm to the patient and therefore forms the basis for financial recovery.

For instance, if a surgeon failed to remove an instrument during surgery, stitched up the patient and the misplaced instrument was later discovered to have caused complications. Doctors very well may need to re-operate on the patient to remove the object, putting the patient at additional risk.

In this case it is fairly obvious that there is professional liability. Liability can also arise due to a doctor failing to treat a patient or treating a patient with disregard to accepted procedures.

How Much Compensation Can You Expect?

It's difficult to say, because every case is different. There are however formulas that may be used as a rule of thumb. This is why it is important for you to speak with a lawyer in order to determine a range of equitable compensation.

You may be entitled to compensation for a variety of different reasons.

For instance:

· Medical Bills · Pain and Suffering · Lost Wages · Mental Anguish · Emotional Distress · Psychological Injuries · Dismemberment · Disfigurement

* Embarrassment ...and many more!

Should This Case Be Pursued? and...Is It Worth The Time And Effort?

Let's face it. Lawsuits are expensive, time consuming and require a tremendous amount of effort. Unlike other forms of personal injury cases, medical malpractice is inherently more expensive to litigate.

In the "perfect world" any amount of medical negligence deserves to be addressed. However, in the "real world" you and your attorney must decide if the claim will actually result in a favorable outcome. At the end of the day, does it have sufficient value?

Typically, medical malpractice cases prevail on the strength of testimony from an expert witness. That is, a specialist in the exact area of medicine willing to agree that there in fact was medical negligence.

Consider this, what if the link between the injury and the medical practitioner is not an obvious or glaring misdeed. This complicates the case even further. Making the connection between your injury and the doctor becomes more of a game of hide and seek.

You are seeking justice...while they are hiding behind mountains of paperwork and tons of circumstance that may or may not have contributed to your injury.

In a word, "probably". Your medical malpractice case is not the usual "run of the mill" personal injury case. As explain above, there may not be a clearly defined person or group responsible for your injury. In order to reach a fair and equitable settlement for you, it very likely be necessary to file the suit. This does not mean that in obvious cases of wrongdoing a settlement could not be reached before a lawsuit is filed. Your claim for damages may also be settled after the suit is filed and prior to going to trial.

In the event a lawsuit is the necessary alternative,lawyers will expertly prepare all of the documentation, and file your claim with the appropriate court.

Next they will gather and compile all available evidence required to prove the validity of your injury. This is called the "discovery phase." During this phase your attorney and the members of the firm will conduct depositions of doctors and nurses and exchange written information commonly known as interrogatories.

This is also known as the "Pre-Trial Phase" of the case. Many claims are resolved during this period, which can take several months to several years depending on the type of case.

Once the pretrial discovery phase is complete your medical malpractice case will be scheduled for trial. There could either be a jury trial or a judge can decide your case if all parties are in agreement.

What Evidence Will I Need To Provide?

The short answer is, "What ever evidence you have... and all that you can think of.

When you have incurred an injury at the hand of a medical professional it is important that you write down everything you can think of relating to the accident and your injury.

Here's the short list of essentials:

· Names · Addresses

. Phone Numbers ... of anyone involved in your care AND any and all witnesses, including nurses, and surgical staff if there were any.

· Doctors Contact Information

· Hospital Records

· Photos Of Your Injury

· Take good notes, date them and have them witnessed.

· Start a Journal if you can and record everything during your recovery process.

· Keep A Record Of Your Expenses & Lost Wages

Trials are won and lost by the quality of evidence your lawyer is able to present.

Take good care of your evidence. Be sure to keep it in a safe place or turn it over to your attorney for safekeeping.

Attorney Malpractice

What is legal malpractice?

Attorney or legal malpractice is when a lawyer performing professional services for his or her client has a duty to use the knowledge, skill and care that a reasonably competent lawyer in his same community would use in similar circumstances, and then fails to meet that standard in a way that causes his or her client to be injured or damaged.   

If I pay my lawyer to provide legal service and we don't "win," is that legal malpractice?

In all likelihood it is not. If you retain an attorney to represent your interests in, for example, a divorce and your attorney zealously represents your position it is not legal malpractice if the judge, after hearing all the evidence, renders a judgment that you do not consider favorable.   

What do you have to prove to show legal or attorney malpractice?

The elements of legal malpractice are the same as those for medical malpractice or any other form of professional malpractice. Specifically, it must be proven that the lawyer had a duty to use the degree of learning, skill and care that a reasonably competent lawyer in his locale would have used in a similar situation. It must further be proved that the lawyer breached that duty and that breach caused injury or damage to the lawyer's client.   

What are examples of attorney malpractice?

The most often cited example of legal malpractice is where there are certain time requirements that must be met and the attorney fails to meet those requirements. A good example would be when a party has a personal injury claim in a state with a two-year statute of limitations, and the lawyer fails to file the lawsuit during that two-year window.

In situations like this a client would not only have to prove that the lawyer failed to timely file his or her case, but that if the case had been filed timely, the party would have succeeded in the underlying case. This is often referred to as the "case within the case." This means that when the matter ultimately goes to court, you must first put on and prove the underlying claim that you originally retained the lawyer to prove, and you must prove you could have proven that underlying claim. If you cannot prove that the underlying case had value, and in some instances that there could have been a recovery against the underlying party, you will not be able to prove your legal malpractice case.

Other examples of legal malpractice is when a party receives faulty tax advice, or a case is settled without the prior approval of the client, or other possible theories of recovery existed but were not put forth by the lawyer when he or she was representing the interests of an injured party.
Most states have statutes of limitations, which is the period of time during which you must bring a malpractice claim. You may not meet the statute if you allow too much time to elapse. Statutes of limitations for malpractice claims vary from state to state, so you should seek counsel immediately to apprise you of your state's statute of limitations.

Proffesional Malpractice

In various professions, such as accounting, architecture, veterinary medicine, etc., members of those professions are also held to a standard of care that members of their profession must meet because of their learning and expertise. In these various professions, as in medical and legal malpractice cases, if there is a failure of those professionals to meet the standards of care adopted by other professionals in their field, and that failure causes a client to suffer damage or injury, those professionals too can be held accountable for professional malpractice.

As with both medical and legal malpractice, pursuing the case will require that the complaining party seek out expert witnesses who will offer evidence as to the standard of care in that particular profession and whether or not there was a breach of that duty and whether that breach caused injury.

As with both medical and legal malpractice, there are certain time restraints, statutes of limitations, that must be complied with in each jurisdiction. If a party fails to bring a potential claim within the statutorily prescribed time period, that party will forever lose the right to pursue any remedy or redress in court. Since each state has a different statute of limitations, it is strongly urged that if a person feels that he or she has been a victim of some form of professional negligence, that person should immediately contact an attorney in his or her jurisdiction to determine the appropriate statute of limitations.

A word of reassurance... DON'T BE UPSET if your condition prohibited you from gathering any of the information above. That is the attorney's job. It does however serve to illustrate how important it is for you to contact an attorney immediately.