Patients or their families who feel they have not been treated properly or diagnosed correctly and were harmed as a consequence should always consider the option of filing a medical malpractice lawsuit. Contrary to the general perception that most medical negligence cases are frivolous, researchers at the Harvard School of Public Health have found that 97 percent of them are actually meritorious. But that doesn’t mean you should just go and file a case without first brushing up on your knowledge about this type of litigation.
The four elements basic to filing a medical malpractice lawsuit against a healthcare professional or institution must be present: proof of a doctor-patient relationship; negligence, which is failure of the doctor to provide patient with the standard of care that is customary for a physician of his level; causation defined as harm to the patient caused by the said negligence; and as a result of the first three elements, damages the patient suffered which could be physical, financial, psychological or all of them.
Medical malpractice is a stressful process that requires a big amount of your time and effort. Hence, it would help to know a few things about it to prepare you for what’s ahead and increase your chances for winning.
What You Should Know Before You Sue
A lawsuit for medical malpractice or negligence can be a lengthy and arduous process, taking 2 to 3 years for an initial verdict, then another year or so if an appeal is made.
Don’t expect an immediate decision and steel yourself for intense grilling from the opposition. You should be prepared to answer very personal questions to put on the record. The defense will dig up any incriminating information that can be used against you, such as driving records and arrests made, worker’s compensation claims, previous hospitalizations or injuries, financial records and criminal background.
States in America have different laws regarding medical malpractice damages caps. There is also the statute of limitations on filing. Many states set a limitation on percentage of contingency fees using a sliding scale. Other states decide on fees by court review and approval. Litigation expenses are usually shouldered by the lawyer up front and subtracted from the settlement before the contingency fee, if the case is won. If expenses keep building up, you as the plaintiff will share in the funding.
Proving negligence is not as easy as it seems on the surface. Unless it is as obvious as an instrument left inside the body after surgery, most cases will require expert witness testimony. Take note that the defense will also get their own medical expert to testify. These witnesses are qualified based on their academic and clinical experience or board certification. You should not decide what is “obvious” or not, and do away with an expert witness. Forgoing one might lose the case for you. Another thing to remember is, medical experts don’t come cheap.
Juries do not have a bias for favoring either patient or doctor/hospital.
Insurance companies, for their own reasons, often spread the myth that juries are biased in favor of doctors and hospitals. They base their claim on statistics showing that doctors win medical malpractice lawsuits three out of four cases. Patients who have rightful claims tend to get discouraged and not pursue a legal option.
The actual outcome, per a 2013 report, is that 35% of the lawsuits were settled before reaching trial and only 3% were settled at trial. Although the jury decided cases in favor of the doctor in 13% of cases and only 2% in favor of the patient, most patients still received payment out of court.
In the end, the biggest factor for a patient winning a medical malpractice lawsuit would be to get a qualified lawyer who is specialized in this field and one who has successfully handled this type of litigation.