Medical malpractice, also referred to as medical negligence, can be devastating for victims and their loved ones. Clients come to medical malpractice attorneys with permanent disfigurement, injuries, deficits, and disfigurements that have left them physically and emotionally broken. They have questions, concerns, and want to know where to start.
Naturally, the first step is to consult with a malpractice attorney. An attorney is there to answer all of your questions. They are also there to serve as your advocate, which means they will fight for your best interests.
To help you during this process, and to prepare you for your consultation coming up, use the Berkowitz and Hanna, LLC medical malpractice reference guide we have provided here just for you.
What Does It Take to File a Malpractice Lawsuit?
Medical malpractice cases focus on four fundamental elements, which include the duty of care, breach, injury, and causation.
Without all four elements, you cannot file or succeed with a negligence claim against a hospital, clinic, physician, or other healthcare professional.
What is a Doctor’s Duty of Care?
Physicians are held to a higher standard of care than the average person. After all, they provide a service and have a higher level of knowledge and skill than someone who has not attended medical school.
Your physician has a duty to treat you, the patient, in a way that will reduce any risk of injury, illness, or harm. A doctor’s duty is broken into four components.
A physician and any medical professional offering services must have extensive training and knowledge of the type of service they provide to their patients. They must have the high level of competency expected in their field – and be comparable to other physicians and healthcare professionals offering similar services.
Possessing Requisite Skills
In addition to experience and education, a health care provider must have the skills necessary to treat their patients. Skills are measured by what is physically, emotionally, and mentally required to treat that patient. For example, a surgeon would be required to have the requisite skills necessary to perform surgery on a patient without causing harm.
Putting the Patient First
It is a doctor’s job to give their patients the best possible care – and put aside any personal feelings regarding the patient, the illness, or the treatment. When a physician fails to put their patient’s best interests first, serious injuries can occur.
Referring to Qualified Physicians
If a physician is outside of his or her area of expertise, or they lack the requisite skills to care for their patient properly, they must refer their patient to a qualified physician so that they can receive the level of care they deserve.
What is a Breach of a Physician’s Duty?
If a physician fails in any of the four elements that comprise the expected standard of care, then they have breached their professional duty. Simply telling a jury or judge that a physician breached is not enough. Instead, it must be backed by physical evidence.
Initial Consultations with a Medical Malpractice Attorney
If you suspect you are a victim of medical malpractice, the first step is to meet with a malpractice attorney. During your initial consultation, your attorney will review multiple points – helping him or her understand your case and decide if you have a valid malpractice claim.
Here is what you can expect at your initial consultation.
Obtain the Patient’s Medical History
A patient cannot give their full medical history off the top of their head. Therefore, the attorney will request copies of the patient’s medical records. During the initial consultation, these records may not be available, but the attorney will still request the patient’s medical history, the name of physicians treating them, the name of hospitals where they were admitted, along with their prognosis.
Learning About the Alleged Malpractice
Next, after the attorney has reviewed your background information, they will have you describe the events that led you to suspect you are the victim of malpractice. Naturally, your attorney will not expect that you have the most accurate history, but they will need to get your insight and compare your account with your medical records. A client’s description gives an attorney enough information so that they can decide if it is a case they should pursue.
Explaining the Law to the Patient
The most valuable part of a consultation with a malpractice attorney, as a victim, is that you will learn about the law. Your attorney will explain the differences between bad results and negligent medicine – because they are two very different things. Your attorney will explain to you the demands of a malpractice case, what you must prove, and how you’ll need to prove it to win your case.
Also, your attorney will review the compensation you could qualify for and your rights.
An Overview of the Case
Your attorney has plenty to consider when they first meet with you. They not only need to determine if you have a valid case – but all of the following should be considered as well.
- The Potential Recovery Amount – Medical malpractice cases are extremely expensive to bring to trial; therefore, your attorney must ensure that the case has a high enough recovery potential to justify the cost of trying your case. Damages must be substantial, such as a verdict approaching over $100,000. Furthermore, your attorney will need to consider the hours he or she must put into the case, and the likelihood that they will succeed.
- Underlying Medical Conditions – A patient with long-standing medical conditions in addition to the malpractice injuries presents a more complicated case. Not only will your attorney have to prove that your underlying condition is separate from your malpractice issues, but the seriousness of your underlying condition could make proving causation difficult – if not impossible.
- Personality and Trust – Sadly, a case can come down to a patient’s personality and trustworthiness. If a patient is bitter, cynical, or obnoxious, the jury may not sympathize enough with that patient to award them compensation. Therefore, an attorney must assess the patient’s personality, and how trustworthy they are. A patient with a great personality can still lose a case when they falsify information, exaggerate symptoms, or omit important details.
What Medical Records Does an Attorney Need?
A medical malpractice attorney must request as much information as possible so that they can fully understand your case. The following is a general idea of the records your attorney might request.
Primary Medical Records
These include your hospital charges, physician’s office records, and any radiology films. Within these items your attorney will review:
- Admitting history and physical medical history
- Discharge summary of hospital records
- Operative reports and operative nurse summaries
- Nurse’s notes
- Physician orders
- Prescriptions ordered and filled
- Radiology records
- Laboratory results
- Progress reports
To make the process easier for your attorney, you will need to sign a release form with your attorney or the physician’s office directly. This allows the office to submit copies for your case review.
What are the Most Common Types of Medical Malpractice Cases Attorneys Take?
Malpractice takes many forms. Even if you have one of the more common case types, there is no guarantee that the attorney will take your case – or that you will win. Instead, it comes down to the evidence, and the attorney’s experience with your type of case. It is always best to consult with a law firm that has experience with your specific type of malpractice claim.
Common types include:
Delays in Diagnosis
Typically, there is no disputing when a diagnostic error is made, because it will be evident in the patient’s medical record. However, these cases tend to be factually complicated – and even more so if multiple physicians delayed or missed the proper diagnosis.
Surgical error cases do not have the same causation issues as delayed diagnosis cases because the error will be more evident. However, the defense may argue that there are inherent risks with any surgical procedure, and that the patient signed a consent form acknowledging that the risks were explained to them, and they accepted said risks.
Patients must receive proper instructions and information before they can agree to a treatment plan or surgical procedure. It is the physician’s responsibility to ensure their patient fully understands the treatment or procedure. This includes reviewing the diagnosis, why the recommended treatment is best, alternative treatments, risks and benefits of using the suggested treatment, risks and benefits of alternatives, and risks and benefits of declining treatment. Only after all of the above is fully explained, can a patient give informed consent.
Whether or not the consent given was truly informed or not often comes down to a dispute between the patient and physician. While it may be difficult to prove exactly what was said prior to consent, and whether the doctor truly covered all bases with the patient – these cases can be winnable. This is especially true if the physician has a history of failing to obtain informed consent from previous patients.
A physician may properly diagnose a patient, but use the wrong treatment for their condition. This may include using medications off-label, or suggesting a procedure that is risky or unnecessary, such as surgery. These cases come down to the two schools of thought and will require expert testimony from one or more physicians disputing the original physician’s treatment decision.
Improper Medication or Drug Side Effects
Physicians are required to check a patient’s medical history and review all medications being taken – including over-the-counter – to ensure that any prescriptions given will not cause an adverse reaction. Furthermore, physicians must be cautious when writing prescriptions or orders in the hospital. This includes making sure they prescribe the correct medication, dosage, and dosing timeframes.
When a physician fails to take these precautionary measures, a patient could suffer from an overdose, underdose, or severe side effect.
How Do I Get Started with a Malpractice Claim?
If you suspect that you are the victim of medical malpractice, the first step is to speak with an attorney and have a consultation. An attorney will review your case, medical records, and help you explore your options for compensation.