Medical Malpractice FAQs


Q: Are nursing home cases considered malpractice?


  • A:Possibly. It depends on what was done or not done. Many states have adopted special procedures and remedies for nursing home issues, and even adopted a special “bill of rights” for nursing home residents.


Q: Can a case be reopened after it is settled?


  • A:Generally, no. Whenever you settle a case, you generally sign a release that would forever keep you from pursuing the claim again.


Q: Can I sue my doctor for releasing my records to my employer?


  • A:Possibly. Many employers can legally review their employees’ medical records covered by the company’s health plan, which sometimes includes hospital records and previous worker’s compensation claims.


Q: Can you file malpractice against someone other than a doctor?


  • A:A medical malpractice suit can be lodged against any individual or entity who provides health care. This would include, for example, doctors, nurses, technicians, physical therapists and optometrists.


Q: Can you sue for what might have happened?


  • A:While it is distressing to learn that a medical procedure may have resulted in a very undesirable outcome such as permanent injury or even death, it’s not generally feasible to sue for what “might” have happened, particularly if there was not any negligence.


Q: Do most cases go to trial?


  • A:Malpractice claims tend to be a fight to the death and are settled less often than most other cases, which also means they can take more time and rack up more expenses.


Q: How can I afford to hire an attorney to represent me?


  • A:Most law firms will accept medical malpractice cases on a contingency fee basis. That means you don’t have to pay attorney fees unless the case is settled favorably. You generally do have to pay expenses associated with your case, regardless of whether you win or lose. Be sure to hire a firm that has experience with medical malpractice cases.


Q: How can I find out if a doctor has been previously been sued for malpractice?


  • A:Check with your state medical licensing board to see if they have, and will release, information on the doctor.


Q: How do I know if I have a medical malpractice case?


  • A:A bad medical result doesn’t necessarily mean you’ve experienced malpractice. Even with the best of care, things can go wrong. Generally, to win a medical malpractice case, you must have expert medical testimony that no reasonable health care provider would have done what yours did. Reasonableness is generally determined by looking at what is reasonable care in view of the:
    • Available knowledge
    • Geographic location where care occurred
    • State of medical practices at the time of the illness or injury

    You must also prove through expert testimony that the negligence of your health care provider was a cause of injury or death. A doctor can be negligent, for example, and still not be liable, if the injury or death was caused by some other factor.


Q: How do I obtain my medical records?


  • A:State law allows a patient the legal right to obtain copies of medical records. A request for copies of the medical records, made in writing, is presented to the medical facility. It will take time to obtain the records, and frequently requests need to be made in a number of areas. For example, the treating physician’s records will contain any prescriptions written for a patient, but not the pharmacist’s records of a patient’s history of consultations (that log book you sign when you pick up your prescription) containing complaints of side effects and other drug interactions. You may need to contact a number of service providers. Often, there is a per page copy charge assessed to obtain these records.Include with your request:
    • Your exact, correctly spelled name and/or any other names you may have been known as, especially at the time you received treatment
    • Your social security number
    • Your date of birth
    • Your patient number, if you know it. Patients often have billing statements, but their account number isn’t always their patient number.


Q: Is a misdiagnosis malpractice?


  • A:Not necessarily. Medicine is not an exact science and errors in diagnosis can be made. Law does not require doctors to be right all the time but rather that their actions meet the standard of care set out by state statutes, as well as what a reasonable doctor would do in the same situation.


Q: Is there a minimum or maximum amount that can be recovered?


  • A:No. This depends on injury and extent of damages. There are no parameters, unless dictated by state statute.


Q: What does “preponderance of evidence” mean?


  • A:Preponderance of evidence is evidence that is more convincing than the evidence that is offered in opposition. It is whatever is more probable than not or has a greater weight.


Q: What expenses are generally paid by a settlement for a malpractice case?


  • A:Generally, state statutes control what a malpractice settlement takes into consideration. The following are commonly covered:
    • Past, present and future medical expenses for treatment of the injury caused by the medical malpractice
    • Other financial damages and economic damages that the malpractice caused
    • Compensation for pain and suffering


Q: What is a normal settlement amount?


  • A:There is no normal or set amount in recovering damages from medical malpractice. Every case and injury is different. There are many nuances that determine a reasonable settlement amount, such as:
    • Impact the injury has on earning capacity
    • Impact the injury has on life functions
    • How the jury perceives the injured party
    • The atmosphere in the geographic area concerning medical malpractice

    Only an attorney can give you an idea of what type of settlement you might be entitled to.


Q: What is “contributory negligence”?


  • A:Contributory negligence is an injured person’s failure to exercise due care, which contributed to the injury. One example of contributory negligence in a failure-to-diagnose case would be if a doctor recommends that the patient undergo a screening exam for cancer and the patient neglects to follow through with the doctor’s instructions, only to be diagnosed with cancer later.


Q: What is “informed consent?”


  • A:When a doctor is going to perform a procedure, he or she is required to advise the patient of the procedure that is going to be performed as well as all the possible consequences. This is referred to as “informed consent.” If the doctor doesn’t do this, it might lead to a medical malpractice case. There are some instances where a doctor isn’t required to obtain an informed consent, such as a case where the patient is unconscious, a family member can’t be reached in an emergency or if there isn’t a living will. As a general rule, attorneys will take these cases if the consequences of not being properly informed are great enough.


Q: What is “subrogation”?


  • A:Subrogation is a legal concept that allows someone who covers the cost of your injuries, generally an insurance company, to eventually recover those payments from the person determined legally liable for your injury.


Q: What is the statute of limitations for a medical malpractice suit?


  • A:Statutes of limitations for medical malpractice cases are set by state law and generally range from one to seven years. The window of opportunity for filing a lawsuit may expand, depending on circumstances, such as whether or not the injured party was a minor at the time of injury and when the individual learned of the malpractice.


Q: What’s the medical malpractice “standard of care”?


  • A:While state law generally determines how negligence is defined, the “standard of care” is generally defined by the medical community. It’s not the measure of what is optimum care or even the measure of what an expert thinks should have been done in hindsight. The issue is whether any reasonable physician could have done what the doctor in question did, based on the available information. Help defining “acceptable practice” can come from a medical expert’s experience, medical texts, literature and publications from groups such as the American College of Obstetricians and Gynecologists. However, in most cases the standard of care the doctor deviated from must be established at trial by expert testimony. In some states, this expert testimony must be established before a victim can even initiate a lawsuit.


Q: When should I settle my case?


  • A:If you receive a settlement offer, you should consider it with the advice and guidance of your attorney.


Q: Why do attorneys turn down malpractice cases?


  • A:There can be a number of reasons why an attorney won’t take a case, including:
    • There isn’t a credible expert to say there has been malpractice or that any malpractice was a cause of the injury or death. Without such expert testimony, cases generally cannot prevail in court.
    • The cost of bringing a case to trial exceeds what the case could reasonably be expected to return. It is generally very expensive to obtain the medical experts necessary to even get the medical malpractice case into a courtroom. And, these days, insurance companies are less likely to settle in this area and more willing to take cases to trial. This drives up the costs of suits for victims. So, many a personal injury lawyer concludes that it’s not economically feasible to bring what may be a “good” liability case to court. This is not necessarily because the lawyer is greedy, but because the lawyer does a client a disservice by bringing a claim that he or she knows may leave the client in the financial hole even if they “win” the case.
    • The severity of the injury caused by the malpractice is an important consideration. A truly serious injury with long-term consequences, such as injuries during birth, a heart attack, stroke or permanent disability are more likely to bring a viable lawsuit than a minor, temporary injury.


Q: Why do I have to have an expert establish that I was harmed?


  • A:In order to prevail in a medical malpractice case, you must prove that the standard of care wasn’t followed. The courts have come to recognize experts with experience, training and an understanding of the level of care associated with a particular medical procedure as being able to attest to or gauge the standard of care provided.
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