How do you know whether compensation is available in medical lawsuit cases? In determining whether it is, the two main criteria are injury and fault.
Is There a Compensable Injury?
First, there must be injury: the saying, "no harm, no foul," applies in law, too. If there was no harm, then even if a medical provider was careless, there is nothing for which to seek compensation. To use an extreme example: your surgeon shows up not just hung over, but still drunk. There are no circumstances under which he should operate. However, if miraculously, he performs a perfect procedure and you come through with flying colors, there's nothing for which to sue.
Also, not every injury is worth suing about. Suppose that you go to the emergency room for a laceration (cut) in your leg, and the attending physician neglects to prescribe antibiotics to stave off an infection. Sure enough, the cut becomes infected and you have to go back for a prescription. If all it cost you was another $25 - $50 co-payment, and dealing with an infection for a few days more than you should have, what you could recover in a lawsuit would be far less than the cost of the suit.
Malpractice: There Must be Fault
There are no guarantees in medicine or in life. A bad outcome does not necessarily mean that there was malpractice or liability. Instead, for there to be liabiity, there must have been some failure or fault. This usually means the medical care provider(s) was either unreasonably careless or did not follow commonly accepted standards of medical care. If the provider did not do what he should, then there may liability.
Note that omissions--or failures to act, such as failure to order a test--can lead to malpractice as easily as acts of commission, such as incompetent procedures. The issue is how the provider's action or inaction relates to generally accepted standards of medical care.
How An Attorney Can Help
It's hard for a layperson to (1) understand what are accepted standards of medical care; and (2) understand what a claim might be worth. An attorney can help understand whether there may have been malpractice, and also what the potential compensation or recovery is. In this way, a lawyer can enable an informed decision about whether to pursue a lawsuit or not.
