Medical malpractice happens more often than most people realize. Experts estimate that more than a million people are injured as a result of malpractice each year. In fact, medical errors are believed to cause around 251,000 deaths each year, making them the third leading cause of death, according to The Washington Post.
Only about a tenth of the people injured as a result of malpractice sue their medical care providers, in part because the process for medical malpractice suits can be lengthy and intimidating. The prospect of a lengthy wait until trial, having to testify, and concerns about costs result in many injured parties not pursuing the compensation they deserve.
Victims of malpractice shouldn’t be afraid to seek compensation for their damages. Malpractice has some very severe consequences, including chronic pain, diminished physical capability, lost career prospects, disruption of family life, medical treatment costs, and more. Understanding the steps involved in a malpractice suit will help make the process less intimidating for victims, who are already dealing with the consequences of a medical care provider’s negligence.
1. Finding an attorney – If you believe you or a loved one has been the victim of malpractice, finding the right lawyer is your first step in filing suit. You’ll want to shop around and talk to several attorneys before making your decision. The attorney you choose should have experience in malpractice cases. You’ll also want to find an attorney you feel you can build a personal rapport with, as you’ll need to trust his or her advice.
You’ll need to seek out an attorney and get a suit filed before the statute of limitations runs out. Statutes of limitations put a limit on the amount of time an injured party has to file suit after an injury. This time limit varies from state to state. In Kentucky, you only get a year to file, while in North Carolina you can have between three to ten years, depending on circumstances. Statutes of limitations can be very problematic in malpractice actions, as, in some cases, it can be a year or more before the effects of malpractice become apparent.
2. Initial investigation – Once you’ve selected your attorney, he or she will thoroughly interview you about your medical history, your treatment, and your current condition. Cooperation is vital—don’t lie about anything and don’t withhold information. If your attorney doesn’t have all the facts, he or she will not be able to adequately represent you.
Your attorney will next conduct a very thorough investigation. Your lawyer will contact all the doctors, hospitals, and care providers involved in your case, and the lawyer may also obtain information from previous providers of medical care. These steps are designed to determine if your care provider was negligent and what injury resulted from this negligent care. If your case looks viable, your attorney will then proceed to seek outside medical opinions.
3. Expert advice – If your attorney believes that you have a case, the attorney will allow a medical expert to review any records he or she has collected. You will also likely undergo examination by experts in the field of medicine appropriate to your case. Attorneys typically turn to doctors who train other physicians or acknowledged experts in their field for this advice.
4. Negotiation – Some, but not many, medical malpractice matters are resolved by settlement before a lawsuit is even filed. This is more common in personal injury suits, as doctors’ insurers typically want to conduct their own investigation before settling. In some cases where the malpractice is very clear, insurers will respond to preliminary offers to settle.
5. Filing suit – If no settlement is forthcoming, your attorney will file suit. A written complaint detailing your injury and your allegations against the medical care provider will be submitted to the court. Depending on the state you live in, your attorney may also have to file an Offer of Proof or Affidavit of Merit that includes a doctor’s opinion that malpractice has occurred or an affidavit from your attorney that he or she has discussed the case with a qualified doctor who believes the case has merit.
Attorneys for the medical care provider will answer the suit with a response—likely a step-by-step denial of the allegations you asserted in your complaint. The judge in the case will begin setting a schedule for discovery and hearings. Depending on the court where you can file suit, it can take between a year and three years before the case will go to trial.
6. Discovery – During the discovery phase, your attorney and the medical care provider’s attorney will conduct a thorough investigation of the case and will be able to take depositions from witnesses in the case. This can be a lengthy process, as opposing counsel may seek to keep your attorney from interviewing some witnesses or restricting access to some documents.
In turn, your attorney may seek to have the court compel uncooperative witnesses to provide more thorough answers. This back-and-forth can take several months.
7. Settlement negotiation – At the end of the discovery phase, settlement negotiations will usually begin. The truth is that 90 percent of malpractice actions are settled before they can go to trial. Insurers and medical care providers have a financial incentive to settle cases they think they might lose. Settlements in malpractice cases average out at about $425,000. The average jury award is more than $1 million.
Your attorney and the medical care provider’s attorney may go into mediation to come to an agreement on a settlement. If mediation fails, the case will proceed to trial.
8. Trial – Trial is risky for the medical care providers and the injured parties alike. More often than not, the medical care providers in a malpractice case will win in a trial. However, when these providers lose medical malpractice cases, they lose big. Jury awards typically far exceed what the medical care providers would pay out in a settlement. That’s why so many insurance companies opt to settle malpractice cases, even when there’s a chance they might win.
If your case goes to trial, your attorney and the medical care provider’s attorney will make statements, present evidence, and question witnesses in court. A judge will oversee proceedings and make rulings on points of law. A jury will determine whether malpractice occurred and will allocate damages. Damages are typically categorized as economic, non-economic, and punitive. Some states have caps on the amount of money that can be awarded as damages.
Following the jury’s decision, the losing party may appeal the decision. No damages will be paid until the appeal is resolved.
9. Receiving Payment – Once your case is settled, or if you win in a trial or on appeal and the case is resolved, you’ll be paid the amount the court awarded you. Injured parties may receive their earnings as a lump sum payment or in structured payments.
In a lump sum payment, you receive your money all at once. In structured payments, you’re paid the amount of your award over time. Structured payments are most frequently used when malpractice involves birth injury or an injury to a child, as this set-up will ensure that the child has money to cover long-term medical needs.
At the conclusion of your case, attorney fees and legal expenses must also be paid. Most medical malpractice attorneys work on a contingency basis, meaning they don’t collect any payment until the case is resolved. Once the case is resolved, they’ll be reimbursed for their expenses and will also receive a percentage of the settlement.
Saunders & Walker P.A. is a national law firm with expertise in medical malpractice cases as well as in cases involving pharmaceutical and medical device manufacturers. If you believe you’ve been injured as a result of medical malpractice, contact Saunders & Walker today for a free consultation to explore your options.
Sources
- https://www.washingtonpost.com/news/to-your-health/wp/2016/05/03/researchers-medical-errors-now-third-leading-cause-of-death-in-united-states/?utm_term=.9c395f4bdd6d
- https://www.alllaw.com/articles/nolo/medical-malpractice/trial-process-lawsuit.html
- https://www.rocketlawyer.com/article/medical-malpractice-statute-of-limitations-by-state.rl
- https://www.medscape.com/viewarticle/811323_3