What is Medical Malpractice?
Medical malpractice is a broad term generally used to describe any treatment, lack of treatment, or other departure from accepted standards of medical care, health care, or safety on the part of a health care provider that causes harm to a patient. Examples of medical malpractice are too numerous to list. Medical malpractice can include, however, misdiagnosis, improper treatment, failure to treat, delay in treatment, failure to perform appropriate follow-up, prescription errors, etc. In many instances, medical malpractice is not obvious to a lay-person and requires the review and analysis by medical experts.
What is a deviation from an accepted standard of care?
Doctors and nurses are not expected or required to be perfect or infallible as medicine is not an exact science. There may be poor results from medical treatment even without malpractice. But medical professionals are expected to have the basic knowledge and skills normally possessed and used by the average medical professional in their area of practice. This basic knowledge and skill is called a standard of practice, or standard of care. When a medical professional treats a patient and fails to use this basic knowledge and skill, whether the failure consists of doing something incorrectly, or failing to do something that should be done, that failure is a deviation from the standard of practice or care.
What must be shown to prevail in a medical malpractice case?
While there are various types of medical malpractice claims, generally speaking, a claimant must usually show the following:
- The health care provider owed a duty to the patient
- The health care provider breached that duty
- The patient suffered an injury, and
- The patient's injury was a proximate cause of the health care provider's breach
A physician owes a duty to a patient once a "doctor-patient" relationship has been formed. Such a relationship is usually formed when the physician agrees to care for the patient. Nonetheless, even if it is established that a duty existed and the health care provider breached that duty (eg. failed to meet the requisite standard of care), a claimant may not recover unless the claimant suffered injuries that were a direct result of the breach. If the breach resulted in no harm to the patient, a claimant generally has no right to recovery.
How does someone prove malpractice?
The standard of practice or care can only be proven by an expert; in other words, by another medical professional in the same area of practice testifying as to what the standard is, and further testifying that the doctor or nurse treating the patient failed to practice according to the standard. Such an expert witness must be paid for the time spent reviewing and evaluating the case, and for the time spent in testifying as to their opinions.
Will a doctor testify against another doctor?
There are doctors willing to testify that another doctor has deviated from the standard of practice if, after review of the medical records and facts, that doctor comes to the candid conclusion that malpractice has occurred and caused harm to a patient.
How much is a medical malpractice case worth?
Every case is different, and every case will have a different value based on a variety of factors too numerous to mention. Like medicine, the law is not exact, and putting a dollar value on pain and suffering is not possible based on any mathematical formula. A lawyer can recommend a possible dollar value range for a case only after all of the medical and other facts are determined and analyzed in accord with the lawyer's knowledge and experience.
What is the first step in pursuing a medical malpractice claim?
The first step in pursuing a medical malpractice case is suspecting that one may have been the victim of medical malpractice. While not every bad result is due to medical malpractice, one who develops a feeling that something was wrong should consult a qualified attorney to review the matter, who often will consult with medical professionals. This process often involves the obtaining and review of medical records and other pertinent information. If it is determined that one has a good case, the next step is usually to give written notice of the claim to the individuals or entities that are believed to have committed the medical malpractice.
Will I have to go through a trial in court before my case is finished?
While some cases do require a formal trial proceeding, many cases are settled before they go to court.
I’ve heard that lawsuits take a long time. Is that true with malpractice cases?
Malpractice cases don’t necessarily take any longer than other cases, but doctors, hospitals, and insurance companies often try to drag them out. Malpractice claims are often delayed because the doctor or hospital knows they will ultimately have to pay. In other words, they know that they made a horrible mistake.
How much does an attorney charge in a malpractice case?
In a malpractice case, the attorney's fee is usually based upon a contingent fee. A contingent fee agreement is an alternative to an hourly attorney's fee agreement. Under a contingent fee agreement, there is no attorney's fee charged, if the injured person does not secure a recovery. The well accepted contingent fee in a personal injury claim is 33-1/3% of any recovery. Consult our office for further details.
I have no idea how much money I should ask for or expect. What kinds of expenses are typically included in a settlement?
A typical medical malpractice claim will include compensation for pain and suffering, payment of medical expenses for treating the injury caused by the malpractice and reimbursement for any past, present or future financial losses that you have incurred as a result of the malpractice.
It’s taken me several months to work up the nerve to do anything about my situation. Am I running out of time to file a lawsuit against my doctor?
In Illinois medical malpractice actions against health-care providers must be filed within two years of the date that the act giving rise to the injury occurred or within two years of the date of discovery of the injury. In no event can suit be filed more than four years after the date that the act occurred. When a minor (under 18) suffers an injury because of medical malpractice, the action must be filed within eight years of the date of the injury, but in no event after the person’s 22nd birthday. Consult our office for further details.
The Law Offices of Millon & Peskin will evaluate your case thoroughly, explore all potential sources of recovery and preserve your rights under the law. Contact us today for a free consultation at (800) 928-1831 or Email us at info@millonpeskin.com. You can also complete our Online Case Evaluation Form
DISCLAIMER: This site and any information contained herein is intended for informational purposes only and should not be construed as legal advice. Seek competent legal counsel for advice on any legal matter.
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