The three leading causes of death in the United States are heart disease, cancer, and medical malpractice, according to none other than the American Medical Association. Hopefully, neither you nor your loved ones will ever fall victim to medical malpractice. If you do, however, you will suffer losses that justice demands compensation for. Understanding how a medical malpractice lawsuit works will help you enforce your rights if that time ever comes.
Not every adverse medical outcome amounts to medical malpractice. In a medical malpractice claim, the focus is on whether the medical care you received met the applicable professional standard of care. Many medical malpractice claims revolve around exactly what constitutes the applicable standard of care under the circumstances of your treatment. This issue is typically resolved through testimony from expert medical witnesses on both sides. If your healthcare provider knew what should have been done and intentionally failed to do it, he may have committed medical malpractice.
What are your options if your loved one dies as a result of medical malpractice? In Connecticut, your loved one’s probate estate can file a wrongful death lawsuit based on medical malpractice. The person who would file the lawsuit is the personal representative of the estate appointed by the probate court (normally, either the person named in your loved one’s will, or, if there is no valid will, a close relative).
Damages in a Connecticut wrongful death lawsuit go to the probate estate itself (for eventual distribution to estate beneficiaries once estate creditors are paid). The estate can be compensated for:
Compensation awarded in a wrongful death lawsuit can be comparable to damages awarded in the case of serious personal injury, and punitive damages are potentially available as well.
The first step in filing a medical malpractice lawsuit, other than retaining a skilled medical malpractice attorney, is to identify the appropriate defendant. Any healthcare provider, whether an individual or an organization, can be conceivably sued for medical malpractice, including a doctor, a nurse, a dentist, a hospital, a medical group, or a hospice.
Compensatory damages are designed to compensate you for all of your losses arising from the medical malpractice that triggered your claim. Total damages can range from a few thousand to a few million dollars. Damages can be divided into three types:
You can expect your healthcare provider to vigorously defend against your claim either in court, at the negotiating table, or both, and you will need to prepare in advance for this. One of the most common defenses against a medical malpractice claim is comparative fault. This is where the defendant claims that your injury or illness was partly your fault. The defendant might allege, for example, that you failed to follow the doctor’s instructions.
Under Connecticut personal injury and wrongful death law, your compensation will be reduced in proportion to your degree of fault – you will lose 25 percent of your compensation, for example, if you are found to be 25 percent at fault. If the court finds you more than 50 percent at fault, however, you will receive no compensation at all. A skilled Connecticut medical malpractice lawyer can help you fight back against a claim of comparative fault.
The statute of limitations sets the legal deadline by which you must file a medical malpractice lawsuit. If you miss the deadline, your claim will be worthless – even a private settlement will be unlikely. Think of it as a stopwatch that starts at two years (in Connecticut) and ticks backwards. The clock can be stopped temporarily if an exception applies, but once it ticks down to zero, your claim is dead.
The Discovery Rule Exception: The discovery rule prevents the statute of limitations clock from ticking from the day the malpractice is committed if you did not realize that you had a claim and if your failure to realize your claim was reasonable. Suppose, for example, that your doctor failed to diagnose a dangerous medical condition that you were afflicted with. In that case, the clock might not start ticking until you realized you had the condition.
The “Fugitive” Exception: This exception applies if the defendant, for whatever reason, left the state after committing malpractice against you. Since you cannot file a Connecticut medical malpractice lawsuit against an out-of-state defendant, the statute of limitations clock stops ticking when he leaves the state and doesn’t begin ticking again until he returns.
The Automatic 90-day Extension: If the statute of limitations clock is ticking down to zero, you can petition the court clerk to grant you an automatic 90-day extension to give you the opportunity to investigate whether your claim is valid.
The Statute of Repose: The statute of repose sets a hard deadline for you to file a medical malpractice lawsuit: three years after the date that the malpractice occurred. This deadline applies no matter when you discovered the malpractice. In other words, even if you fail to discover the malpractice immediately, the longest time you can keep the clock from ticking is one year.
Perhaps the most important evidence you will need, other than medical records, will be expert medical witnesses. Expert medical witnesses are typically MDs who are paid to testify concerning their objective conclusions regarding the merits of your medical malpractice claim. Serving as an expert witness may be their full-time job. The defense may present its own expert witnesses who reach opposite conclusions.
To file a medical malpractice lawsuit with the court, you are going to need to file a formal Complaint. Complaints need to be drafted according to certain formal requirements, and every single sentence in the Complaint has consequences for your claim. If you have ever filed a claim in small claims court, be aware that filing a formal Complaint in a non-small claims proceeding is exponentially more difficult.
Frivolous medical malpractice claims (claims that lack any reasonable basis for them) hurt everybody. They increase medical malpractice insurance premiums, and those increases are then passed on to patients in the form of higher medical bills and they encourage doctors to consider potential liability when pondering treatment options. For this reason, Connecticut requires that you prove your medical malpractice claim is not frivolous before your claim can be litigated.
This is accomplished by requiring you to file:
In the discovery phase, both you and the other side will demand certain documents from each other and perhaps from third parties (you will request copies of your medical records, for example). You will also attend depositions where you may be asked questions outside of court but under oath, and your lawyer may question witnesses from the other side or from third parties. If either side refuses to cooperate, the court may compel cooperation. Discovery is one of the main ways to gather evidence for trial.
The Connecticut Code of Evidence is a set of arcane, formal rules that determine which evidence you are allowed to present in court. Since your claim will be decided solely on the basis of admissibled evidence, you will need to prepare it carefully with the help of someone who knows how the evidence rules work.
The court will almost certainly pressure the parties to negotiate an out-of-court settlement of your claim since this would reduce the court’s workload. In fact, a great many medical malpractice claims are resolved out of court – both before and after a Complaint is filed. The court may offer the services of a third-party mediator if negotiations become deadlocked. You are not required to agree to a settlement, but if you do not agree, then a trial will result.
Most medical malpractice claims are resolved through private settlement, not trial. However, a significant percent of such claims do go all the way to trial, mainly because healthcare providers are determined to fight to the finish to defeat a medical malpractice claim. You may or may not need to testify, and if you don’t, you will not be required to attend the trial as long as you send your lawyer to represent you.
If you believe you may be a victim of medical malpractice, contact Berkowitz Hanna today to schedule a free, no-obligation case evaluation. Call now or contact us online to get the ball rolling.