medical malpractice

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.

What Is Medical Malpractice?

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.

Wrongful Death

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:

  • medical bills related to your loved one’s fatal illness or injury;
  • funeral and burial expenses;
  • lost earning capacity due to untimely death;
  • pain and suffering endured by your loved one, and
  • loss of the capacity to enjoy life’s activities (due to an untimely death).

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.

Identifying the Appropriate Defendant

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.

Deciding How Much to Ask for in Damages

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:

  • Economic damages, such as medical expenses and lost earnings while you were unable to work. If you suffered long-term harm for which you will require extensive medical treatment into the future, it is particularly important that you retain the services of a medical malpractice lawyer to help you accurately calculate the amount of these damages. Once the judgement is final, you will never be able to come back to court to ask for more.
  • Non-economic damages, such as physical pain and suffering and mental anguish. It is important to note that, in many cases, intangible damages such as “pain and suffering” are awarded in an amount that may equal several times the amount of medical expenses. It is important to retain a lawyer for this purpose as well since you are demanding compensation for something with an economic value that is hard to pin down.
  • Punitive damages (in some cases). Punitive damages are sometimes awarded in addition to compensatory damages. Connecticut courts, however, are reluctant to award punitive damages except in cases of outrageous conduct (if your doctor operated on you while intoxicated, for example).

Possible Defense: Comparative Fault

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.

Possible Defense: The Statute of Limitations

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.

Obtaining Expert Witnesses

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.

Preparing the Complaint

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.

Preparing the Good Faith Certification

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:

  • A written opinion from a healthcare provider operating in a specialty similar to the field that the defendant operates in (a cardiologist, for example). This document must state the provider’s opinion that there appears to be evidence of medical negligence, and must state the basis for this opinion.
  • A certification from you or your attorney signed under penalty of perjury, stating that a reasonable inquiry has been conducted and that the medical malpractice complaint is filed in a good faith belief that it is a valid claim. A “good faith belief” doesn’t have to be correct. Even if you lose lose your claim, you won’t get into any trouble as long as your belief in its validity was reasonable.

Discovery Procedures

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.

Preparing Evidence in Exhibit Form

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.

Negotiation

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.

Trial

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.

Take Prompt and Decisive Action

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.