When someone is the victim of medical negligence, the first question they often ask is, “Can I sue my doctor?” If a healthcare provider is negligent in their duties resulting in either injury or the death of a patient, there is always the possibility of filing a malpractice case against those responsible. However, these cases require solid evidence and can drag on for several years. Therefore, it is important to determine the strength of your case before filing a claim.
How to Prove Medical Malpractice
To be successful at winning a medical malpractice case, the plaintiff (the patient) must be able to prove four basic elements, which are:
- Duty of care—The doctor owed a duty of care to the victim because a doctor/patient relationship had been established.
- Breach of duty—The doctor breached his duty when he deviated from the “standard of care”. This means that his performance fell below the standard others in his profession would follow.
- Causation—The breach of duty was the direct cause of the patient’s injuries.
- Damages—The plaintiff’s injuries caused them to incur actual damages for which they are now seeking compensation.
In some states, you may be required to have an expert witness testify on your behalf. This is usually another doctor who is in a similar type of practice or specialty. These witnesses can be hard to find because most doctors may be reluctant to testify against a colleague. Your attorney may have to look for expert witnesses outside the primary geographic area of where your doctor practices.
Do You Have a Case for Malpractice?
Your first step should be to consult an experienced medical malpractice attorney. Most of these lawyers will take a case on a contingency fee basis. This means that they only get paid whenever a settlement is reached. Malpractice attorneys generally get between 25% to 40% of the settlement awarded to the plaintiff. Some may require a fee upfront to pay for expenses, such as the cost for copies of medical records or hiring an investigator. Quite often, they will have a medical expert review the facts of your case to determine its’ strength and this can be quite expensive. If the attorney feels that you have a valid case, they will by filing a lawsuit against the defendant.
What Damages Can be Obtained in a Malpractice Case?
The primary damages in a medical malpractice case are known as economic damages and non-economic damages. Economic damages are given as compensation for expenses the plaintiff has incurred as a result of their injuries. This often includes lost earnings if they have been unable to work due to their condition. Non-economic damages are given to the victim for their pain and suffering. Punitive damages may be sought if the defendant acted in a reckless or malicious manner. Courts use this as a way to punish the defendant for their misconduct and discourage this type of misbehavior in the future.
Hiring a Malpractice Attorney
When considering whether or not to file a lawsuit against your doctor, you should know that there is a time limit in which you can bring a malpractice claim. This is known as the statute of limitations and varies in each state, and can range from a period of six months to four years. Therefore, it is imperative to speak with a qualified malpractice attorney right away.
