Medical Malpractice FAQ’s
FREQUENTLY ASKED QUESTIONS – MEDICAL MALPRACTICE
Do I have a case?
This question cannot be answered without, at the very least, a detailed review of medical records, relevant medical history and, in most cases a consultation with a qualified physician/expert witness. While an experienced medical malpractice attorney can bring his prior experience and knowledge gained in past cases to bear in making an initial determination of whether to review your case in detail, an in depth review of your medical records is a must.
What is medical malpractice?
Simply put, medical malpractice is negligence of a doctor, nurse, tech or other health care provider. Think of it this way, when you drive, you (hopefully) possess a minimal competence in driving. If you rear-end another vehicle, that could be considered “driver malpractice.” The term “malpractice” is simply another way of saying professional medical negligence. The real question is, what determines “medical negligence.” The answer is simple to state: a health care provider is negligent if he or she fails to act in a way that is determined to be the “standard of care.” Standard of care means the acceptable way of conducting a surgery, medical procedure, diagnostic process or other health care. Standard of care is determined, in major part, by the medical profession itself. Standard, acceptably competent ways of practicing medicine have been established over time. However, those standards continually change as research, knowledge and technology advances the medical science. What was standard of care ten years ago for some types of medicine is far outdated now. In other cases, doctors are still doing some things exactly the same way they did 25 years ago.
Obviously, an in depth knowledge of medical procedures and processes, as well as the ability to research and identify the proper standard of care, is key for an attorney practicing in this ever changing field.
Will I need another doctor to testify in my case?
Yes, but your attorney will, in most cases, locate an appropriate physician/expert witness. Virtually every medical malpractice case requires expert testimony form a physician who practices in the same or similar field as the defendant, and in some cases you will need expert physicians from a number of different disciplines to prove your case. If your case is against a nurse, pharmacist or other non-physician, you likely will need an expert witness from those disciplines to testify as to the relevant “standard of care.” Finding a highly qualified expert witness to testify that a doctor was negligent is often one of the most difficult aspects of preparing your case.
How long do I have to file my case?
Under the law of most states, you have a limited period of time to file a medical malpractice suit. That time limit is called the statute of limitations. The statute of limitations varies state by state and there are fact specific issues that may extend the time limit. In general, the law in both Illinois and Missouri is that a medical malpractice action must be filed within two years of the negligent act. There the similarity ends. For example, the law in Missouri generally extends that start date on the running clock to the last date you received continuous treatment, from the negligent health care provider, related to the negligent care. In Illinois, the clock begins to run when you knew, or should have known, that negligence had occurred. Further, in Missouri the time limit for filing a wrongful death action is three years, not two.
As you can see, determining the applicable statute of limitations requires the application of both legal and factual analysis. The only way to truly understand the appropriate time limit is to consult with an attorney who concentrates his or her practice in the field of medical malpractice.
I’ve heard about “caps” on the amount of money a jury can award in a medical malpractice case. What are “caps” and what do they mean to my case.
“Caps” are limits on the amount of a judgment entered by a court. Usually, the caps limit the amount of non-economic damages, generally thought of as pain and suffering damages, that can be awarded.
In Missouri, the law as it now stands, is that, regardless of the amount of non-economic damages a jury awards, the Court can only enter a judgment for a total of $350,000 in non-economic damages. That means, even if a jury believed that the injured patient was entitled to more money to compensate them for years of pain and suffering, the Court must reduce that amount to $350,000. However, there is no limit in Missouri on the amount of economic damages that a jury and court can award. Economic damages are things like past and future medical care costs and past and future lost income. Thus, the cap does not mean that the most a victim of malpractice can receive is $350,000.
In Illinois, the Illinois Supreme Court has recently declared that the medical malpractice caps enacted in that state are unconstitutional. Currently there are no statutory limits on the amount of damages a jury can award.
How long does a medical malpractice case take?
Because medical malpractice cases are complicated, involving testimony from numerous doctors, nurses and expert witnesses, the typical case can take anywhere from12 to 36 months to get to trial from the time the case is filed with the appropriate court. Prior to filing, months may be spent in investigating the case and preparing it for filing. In most cases, we will extensively review your case before ever filing, including obtaining and reviewing all relevant medical records, investigating medical conditions and procedures and locating and working with expert witnesses. Bottom line, it is rarely a speedy process. If you are considering filing a medical malpractice action you should be prepared to work with your attorney for many months to get the justice that you deserve.
When should I contact an attorney if I suspect malpractice?
You should contact an attorney as soon as you suspect that you or a loved one has been the victim of medical malpractice. The earlier that you contact an attorney, the earlier he can begin the process of researching the appropriate medical standards and obtaining relevant medical records.
It may not be possible to determine if a viable case exists until after you have completed your medical treatment, but by contacting an attorney early in the process, you establish a relationship with a lawyer who can help you navigate the process and offer advice and guidance. There is no down side to contact an attorney too early
What should I do if I suspect malpractice?
If you suspect that you or a loved one has been the victim of medical malpractice:
- Begin documenting what is happening and when. This will help you to explain things to your attorney and other doctors.
- If possible, seek a second opinion or transfer your care to a different physician or hospital – hopefully one who is not a member of the same hospital system as the possibly negligent doctor or hospital. The reason for doing this is simple – the subsequent treaters will document your condition and history and will be focused on treating the problem and not trying to prove that they weren’t negligent.
- Request copies of your medical records – before the doctor or hospital has a chance to edit or alter them. Although we don’t like to believe that this happens, the truth is it does. Sometimes it is blatantly intentional, as when critical lab results are lost or entries or erased or altered. Other times a doctor or nurse will go back and make additions to the records that they think are necessary to explain why they did what they did-or didn’t do. Either way, the earlier you can obtain a copy of relevant records the less chance that this will occur. At the very least it will make it easier to detect the alterations at a later time.
- Contact an attorney who concentrates his practice in the field of medical malpractice litigation