If you believe you’ve been injured by your physician or other health care provider, you may be wondering if you can or should sue for medical malpractice. This article discusses the major considerations that go into deciding whether or not to start an injury claim for medical malpractice.
You Didn’t Get the Best Outcome; That Doesn't Equal Medical Malpractice
Despite the impressive advances in modern medicine, there is rarely ever a guarantee that a particular treatment or procedure will cure a patient’s malady -- and very rarely will a health care provider give any kind of guarantee ahead of time.
Medical treatments can and do go wrong despite the medical professional’s best efforts, suggested therapies prove to be ineffective, and impossible-to-foresee complications result from routine procedures. If medical professionals were held legally liable every time the results of care were undesirable or unfortunate, the legal system would make the practice of medicine nearly impossible (at least economically untenable).
So When Does Medical Malpractice Occur?
Medical malpractice occurs when the medical professional fails to provide treatment that meets the medical standard or care under the circumstances -- meaning the level and type of care that a reasonably competent and skilled health care professional, with a similar background and in the same medical community, would have provided.
If that definition sounds difficult to apply to your situation, that’s because it is. In most medical malpractice cases, both sides are required to hire “expert witnesses” to tell the jury what standard of care the medical professional was required to meet and whether he or she actually did so.
These medical expert witnesses are required to be experienced in the particular field they are testifying about. Except for clear-cut cases, it is very difficult to predict ahead of time whether your doctor actually committed malpractice in the eyes of the law -- there is no easy formula because a jury must decide that question after hearing conflicting expert testimony.
Perhaps the best resource when you’re still trying to figure out if you have a case is access to another doctor (or doctors) in the same field who can honestly evaluate your doctor's conduct. If, like most people, you don’t have that kind of access to doctors willing to risk a defamation case, a reputable plaintiff’s malpractice attorney is your next best bet.
What Are Clear-Cut Cases of Medical Malpractice?
There are a few situations where the average person knows a doctor or other medical professional did something negligent. The most common situations include:
- When a surgical sponge or other foreign object is left in the patient after a surgery.
- Operating on the wrong patient, in the wrong spot or on the wrong limb.
- Performing a non-emergency procedure that a patient did not consent to.
- Failing to inform a patient about a significant risk to a procedure or treatment that has a higher than 5% of occurrence.
Learn more about When It Is -- and Isn't -- Medical Malpractice.
The Statute of Limitations May Prevent an Otherwise Solid Case
To keep the costs of medical liability insurance down and shield medical professionals from excessive litigation, most states have special rules that apply to medical malpractice cases. By far, the rule that prevents the most cases is the shortened “statute of limitations.” Depending on the state, the court may throw your case out if the alleged malpractice occurred, for example, four years ago even if you didn’t find out about it until much later. The statute of limitations rules are different from state to state and vary in severity, but one thing you can count on is that you only have a few years to get to the court house.
Check out the Medical Malpractice Statute of Limitations in your state.
Medical Malpractice Is Not a “DYI” Area of the Law
Because of the nature of health care, you may be really suffering physically and emotionally after an adverse outcome in your treatment. However, the procedural requirements you have to follow before you can even begin your medical malpractice case in court trip up even inexperienced attorneys.
To make matters worse, some states require you to pay the medical professional’s attorney fees if the court decides your case was frivolous. You are not required by law to hire an attorney, but if you truly believe you might have a legitimate medical malpractice case, your best bet is to consult with an experienced plaintiff’s medical malpractice attorney in your area.