Tips & Advice
Can a medical malpractice lawsuit be filed despite signing a consent form for treatment?
Yes, a patient can file a malpractice suit, despite signing a consent form under at least two conditions.
For example, if a doctor does not explain all of the risks associated with the treatment to the patient. Prior to the signing the consent form, which details the risks, the doctor is responsible to make sure the patient understands the risks involved. Often, in the interest of time, the health care provider doesn’t disclose every single possible risk, instead emphasizing the common and biggest risks. Sometimes in a rushed environment that task is delegated to medical assistant who does not have all the information to adequately inform the patient. The information gets lost and the patient lacks all the correct information to make an informed decision.
If patients do not understand the risks because they were downplayed or glossed over, that is another potential malpractice scenario. Another is when a patient consents to one procedure but the doctor performs a different one. Usually this happens when a procedure for one body part is performed on another. Even if it is successful, the patient can sue for lack of informed consent. This doesn’t apply if the surgeon discovers a similar medical problem and fixes it during the initial procedure. An example of this includes a planned double bypass surgery becoming a triple bypass when the surgeon discovers additional damage during the surgery.
What are some examples of medical malpractice?
Examples of medical malpractice that, if resulting in injury could lead to a suit, include misdiagnosis, improper medication or dosage, unnecessary surgery, surgical errors or wrong site surgery, disregarding patient’s medical history, failure to order proper testing, and failure to recognize symptoms.
What does a medical malpractice attorney need to prove in a successful case?
To prove medical malpractice, the first step is establishing proof of a doctor-patient relationship. Next is the provision of care, (this includes decisions made by the health care provider, treatment or failure to treat) that were below acceptable standards of medical care (known as a breach of the standard of care) that amounts to medical negligence as defined by the law. Last, you need is confirm a causal connection between the medical negligence of the care provider, and the resulting quantifiable harm (damages) to the patient. If all of these elements are present you have a medical malpractice case. This does not mean you will win the case, but these are the minimum elements necessary for success.
Is misdiagnosis considered medical malpractice?
Misdiagnosis can be grounds for a medical malpractice lawsuit, but these situations can be very tricky. This sounds strange, but a healthcare provider is not required by law to provide a correct diagnosis. How is that possible? The reality is that many diseases and conditions can have similar symptoms and can easily be misdiagnosed with no malintent. For instance, asthma and recurring bronchitis have nearly identical symptoms. In general, to win a medical malpractice case based on a charge of misdiagnosis, you need to prove that any other similarly trained doctor within the same medical community would have recognized and/or diagnosed the problem in a lesser period of time. Proving that could be very challenging.
How can someone determine if they have a medical malpractice case?
There are specific factors that determine if you have a malpractice case. First, proof of a doctor-patient relationship must be established. Next is the provision of care (this includes decisions, treatment or failure to treat) that were below the acceptable standards of medical care (known as a breach of the standard of cafe) that amounts to medical negligence, as defined by the law. Lastly, you must confirm a causal connection between the medical negligence of the health care provider and the resulting quantifiable harm (damages) to the patient. If these can be established, you have a medical malpractice case. Having these factors does not mean you will necessarily win the case.
What percentage of medical malpractice cases end up in trial?
It is estimated that more than 80 percent of medical malpractice suits never make it to trial. Surprisingly, the defendants win the vast majority of cases tried in court, even though TV and the movies show it much differently. Multimillion dollar victories are rare. Cases won by the plaintiff can often result in little or no restitution. The percentage of plaintiffs who win a malpractice suit, according to the Bureau of Justice statistics, is only around 27 percent.
Can medical malpractice lawsuits be brought against someone other than a doctor?
A medical malpractice suit can absolutely be filed against individuals and institutions other than a doctor. Lawsuits can be brought against nearly any licensed healthcare professional including, but not limited to, a nurse, dentist, pharmacist or an anesthesiologist. If they performed negligent work, they can be held liable. Hospitals and clinics can be liable for issues like unsafe or unsanitary conditions that result in injury or damages.
How does one file a medical malpractice lawsuit?
To formally file a medical malpractice suit, you must draft and file a complaint with the courts. The complaint is a formal documentation of the allegations against the defendant (doctor, hospital, healthcare provider). Once the complaint has been filed, the lawsuit begins. Prior to filing a lawsuit, which technically you can do yourself, it is strongly advised to consult or hire an experienced attorney to draw up the complaint and file it on your behalf. There can be legal loopholes that make the process difficult, and an experienced lawyer can navigate these waters efficiently and effectively.
They also can guide and advise as far as expectations and potential compensation. You are not required to use an attorney but it is very likely your best course of action in this, or any legal matter. It’s what they do.
Do medical malpractice lawyers work based on contingency fees?
Most medical malpractice lawyers work on a contingency fee basis, meaning they collect a percentage of any settlement awarded if they win the case or settle out of court. If they lose, they do not get paid. While it is unusual for a lawyer to not work on a contingency basis, some prefer to bill hourly. If they bill hourly, these hours can accrue immediately, even if you end the case, so be sure to discuss and clarify specifics with your lawyer.
What is medical malpractice?
Medical malpractice is when a doctor or healthcare provider provides substandard treatment (as defined by law) to a patient, resulting in injury or damages. Malpractice law provides the injured party a way to recover compensation for the resulting injuries.