What to Expect From Your Med Mal Case
Trusting is a good word when describing the mind set of a medical patient. We trust medical providers to give us the best possible care and in a professional manner. Much more often than not, medical professionals meet this expectation. But mistakes can and do happen leaving some unfortunate individuals worse off than before they sought medical attention.
Unfortunately, undoing the harm caused from medical mistakes is usually impossible. If there is good news, it is the presence of laws designed to compensate those harmed by medical malpractice. If you or a loved one is the victim of medical malpractice, you may file a medical malpractice lawsuit to recover damages. This post examines medical malpractice expectations or what you can expect to encounter in your medical malpractice case.
What is a Medical Malpractice Lawsuit?
Medical malpractice lawsuits are civil actions where a damaged plaintiff sues a medical professional in state or federal court. Med mal actions are based in negligence which means the medical professional:
- Owed a duty of care to the plaintiff
- That duty of care was breached
- That breach was the (actual or proximate) cause of plaintiff’s damages
In order to prevail, plaintiff must show all of the above. Although any part of these three criteria can be a complicated issue, the most common area of legal posturing involves whether the duty of care was breached.
Basic Understanding of Medical Malpractice Duty of Care
Breaching of the duty of care in a normal negligence case such as a car accident lawsuit, involves proving the defendant failed to meet up with society’s expectations of how a prudent driver would act under the circumstances. A way to illustrate what is prudent might be discussing whether the defendant was obeying the “rule of the road”. Violation of traffic laws normally means that driver breached the duty of care owed to other drivers.
Medicine’s equivalent to the rules of the road is known as the “standard of care”. The standard of care refers to what practices and procedures other medical professionals use in similar situations to define the level of care owed to patients. Thus, to prove malpractice, plaintiffs must show the defendant medical provider failed to adhere to the applicable standard of care.
The Need for Expert Testimony
Since the jury pool does not consist of medical professionals, they simply lack the requisite understanding to adequately consider the standard of care issue. Even if they were, they would likely not be familiar with the applicable standard of care in a particular medical discipline. The medical profession is highly specialized after all.
To rectify this dilemma, the legal system uses “expert testimony” to inform jurors of the standard of care and what actions/inaction constitutes a breach of this standard. The need for expert testimony is not only for med mal lawsuits. Many lawsuit types involve expert testimony to clarify more complex issues for jurors.
If the medical mistake is so obvious, no expert is needed. Consider a doctor amputating the wrong leg by mistake. No expert is needed because the issue is clear and obvious.
Most medical malpractice cases are not so clear. Thus, med mal plaintiffs put forth the basis of their case with the testimony of their expert(s). Without a medical expert, there simply would not be a case.
The Use of a Medical Malpractice Lawyer
There is a reason people use attorneys to help pursue justice. The legal system is complex and always changing.
A medical malpractice lawyer is a legal professional who assists patients who have been the victim of medical malpractice. Their experience, expertise and connections are all valuable assets that medical malpractice plaintiffs get access to when they retain a lawyer who specializes in medical malpractice.
Medical malpractice lawyers are generally civil litigators who specialize in medical malpractice. Because of the field in which they practice, these lawyers have the type of experience unique to this specialty. In theory, med mal attorneys with more years of experience will be better negotiators, trial lawyers and advisors.
Med mal expertise consists of understanding the nuances of medicine and how to question witnesses (non-parties, experts, plaintiffs and defendants) to get the most valuable testimony. Expertise also means how to negotiate successfully with insurance carriers and defense attorneys.
Good medical malpractice lawyers have connections to valuable litigation assets. These include the ability to find and retain experts and exhibits. It can also include the ability to secure the necessary financing needed to litigate the case.
How Do You Know if You Have a Medical Malpractice Case?
Medical negligence is not always easy to spot. If you think a medical professional made an error and you were damaged as a result, it is a good idea to speak to a malpractice attorney. In most instances, the initial consultation is free.
Medical malpractice law is a highly specialized field and risky business. In some jurisdictions, most medical malpractice cases are not successful. The money the attorney must spend to litigate the case must be recouped after a case is won. If the case is lost, the money spent is also lost in most instances.
If, for some reason, the first attorney you see is not interested in the case, you should keep looking. Medical malpractice law is complex. Add to it the business aspects of the legal practice and it is easy to see that some attorneys might take a pass while others are willing to take on the risk.
Don’t be discouraged, if there is a case in your circumstances, an attorney will likely recognize it. Attorneys will likely take on the case if the potential recovery warrants the risk. Business drives the profession.
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What can I Expect a Medical Malpractice Lawyer to Do?
If you have a case, medical malpractice expectations mean you can expect your lawyer to do certain things. These include:
- Secure an expert witness
- Collect evidence showing negligence
- Gather evidence of damages, including medical bills and income statements
- Communicate and negotiate with the insurance company
- Prepare and file a Complaint in court
- Prepare and argue motions
- Discuss any settlement offers with you
Most medical providers are insured. They have large legal teams whose job it is to minimize their financial exposure to loss. That is, they spend millions of dollars defending against malpractice lawsuits.
Hiring a medical malpractice attorney means you are hiring a legal professional who can navigate the legal landscape and secure compensation on your behalf.
Medical Malpractice Expectations and Settlement?
Many medical malpractice cases are settled before trial. Most of these settlements occur because malpractice is obvious and a plaintiff’s verdict is likely if the case goes to a jury to decide the outcome. In other instances where negligence is not so clear, the provider might still be willing to settle in return for confidentiality. News stories of medical negligence are bad for business. Doctors and hospitals weigh the cost of the settlement with the negative press and make a settlement offer based upon that evaluation.
Accepting a settlement can depend on a multitude of factors. These can include your current condition, your losses to date, and/or your future losses. Your medical malpractice lawyer will help you calculate the value of your case, so you can better compare any settlement offers that you might receive.
Medical Malpractice Expectations Concluded
In this post we examine what you can expect from your med mal lawyer. Every case is different. So is every attorney. Each brings a unique skill set to the table. Your ultimate recovery will depend on the facts of your case; your lawyer’s skills, experience, and expertise; and what you expect the process to yield.
If you or a loved one is injured as a result of medical malpractice, please consult an attorney as soon as possible as limitations on your lawsuit can apply. If you need an aggressive medical malpractice attorney on your side, seek counsel. There are thousands of attorneys who are willing to help. When you meet, ask them about your medical malpractice expectations and see how they respond.
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