Important Considerations If You Think You Have Medical Malpractice Case

Important things to be aware of if you suspect you have a viable medical malpractice claim.


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Seeing a doctor or going to the hospital when you're sick or injured can be a stressful time. You may be in pain, you might be taking time off work to do so, and you might be looking for answers regarding your health. Trusting your health care provider is crucial, but medicine is like any other profession in that people make mistakes.

In medicine, however, mistakes can be damaging or even deadly. Medical malpractice issues are not uncommon, but there are a lot of complexities surrounding malpractice cases that people may not fully comprehend or be aware of. Here are some important things to know about medical malpractice.

1) Misdiagnosis, or even a missed diagnosis, can be a form of medical malpractice.

If you go to a doctor and they diagnose one issue when, in actuality, the problem is something else entirely, that can be considered a misdiagnosis. Likewise, if you go to a doctor and he or she fails to diagnose an existing condition, that failure can also be considered malpractice. If a competent doctor could diagnose the problem, then your doctor's failure to do so can be malpractice.

If you suspect that you received a misdiagnosis or that the doctor is missing something, seek out a second, third, or even fourth opinion. If the misdiagnosis leads to worsened health problems (for example, failing to diagnose cancer earlier) or injury (wherein you receive unnecessary treatment), you may be able to pursue compensation through a medical malpractice claim.

2) The statute of limitations may be very short.

The statute of limitations (time limit to bring a claim) varies from state to state. Some start from the time medical care is administered, while other states start counting from when the injury or negligence is discovered. If you think you have a case on your hands, you should look into what the limitations are for your state, and consider retaining a personal injury lawyer to help you with the proceedings. A lawyer will be much more familiar with what you'll need to prepare in order to file a malpractice claim, and can help guide you through it.

For information on the law in your state, see State-by-State Medical Malpractice Laws.

3) Just because you sign a waiver, doesn't mean you don't have a case.

Some people may think that signing a waiver for medical care releases medical professionals from any liability. That isn't generally the case. Waivers cannot typically negate the doctor's liability in the event that something goes wrong. Waivers are usually given to patients to make sure they are aware that the procedure they are getting is dangerous or has potential complications, not to give a carte blanche for mistakes or other problems.

The impact of the waiver depends on the form you signed and what the terms of it include, of course, but a waiver doesn't mean you have no room to pursue a malpractice case. More importantly, many times what you may think is a waiver is actually just an informed consent form—these forms warn the patient of potential risks or complications—they do not absolve the medical professionals from responsibility.

4) Most malpractice cases don't ever go to court, but that doesn't mean most people don't receive compensation.

If you have heard that only a small percentage of malpractice cases win in court, it may not be because the lawyers handling them are ineffective, incompetent or intimidated. More likely is the idea that most cases of medical malpractice are settled outside of court between doctors' insurance companies and the injured party.

Court cases can be very expensive and insurance companies try to avoid them, so claimants may still get compensation, but the statistics for court cases won won't reflect that. If you feel you have a malpractice case that needs attention, contacting an experienced lawyer is a good first step. Since many work on a contingency basis or offer free consultations, you may not need to worry about cost as much as you think you do.

Medical malpractice can be an especially stressful situation to bring before a lawyer, if only due to the confusing nature of filing a claim. Know that getting a lawyer involved, however, is your best bet if you're not sure you have a case, as they will be familiar with the laws regarding malpractice and will have much more accurate answers than the average person or answers you seek out on the internet.

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