Filing for Medical Malpractice

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According to the New York Times, “Hospital employees recognize and report only one out of seven errors, accidents and other events that harm Medicare patients while they are hospitalized”. Such errors can sometimes be categorized as medical malpractice.

Medical malpractice can be defined as a medical professional failing to meet certain standards of care to a patient receiving their services. This can occur in a variety of ways: misdiagnosing a patient, failing to notice a significant symptom that points to a serious problem, writing a prescription for the wrong medicine, or discharging the patient prematurely. We are wondering what to do when you or someone you love suffers from medical malpractice.

Why We’re Asking:

With the number of medical mistakes that go undocumented and unaddressed, it is clear that a number of people may need the help of a lawyer to rectify these wrongs. But moving forward with a case which is both complicated and deeply personal is anything but easy. So this week, we look to our legal professionals to give us basic guidelines on how to address a medical malpractice issue and how to hire a lawyer for such a case.

So, it’s time to weigh in:

How do you move forward with a medical malpractice case?

How do you hire a medical malpractice lawyer?

What should you look for when hiring a medical malpractice lawyer? Questions you should ask?

Are there specialty personal injury lawyers?

How should you document a medical malpractice event?

We’re excited to hear back from our legal professionals. Check back later in the week to see what advice they have to give about medical malpractice suits!

Post your answers in the comment field below!

6 COMMENTS

  1. To prove a medical malpractice case two steps are required. 1.you must prove there has been a violation of the standard of care required of the doctor or other health care professional, and, 2; the breach of the standard of care was the cause of harm or injury to the patient.
    You must have an expert witness to testify as to what the standard of care is and how it was not met in your case. The expert must also testify how the medical mistake ( breach of of the standard of care) caused harm to the patient. Without these two elements the case fails.
    As with anything, shop carefully for a medical malpractice lawyer. This is a technical specialty that is handled only by very qualified lawyers. Leighton Rockafellow has been practicing medical malpractice law for over 30 years. Web inquiries are good, but personal referrals are always better.

  2. How do you move forward with a medical malpractice case?
    If you think a medical professional has made some kind of error or omission and that has resulted in your physical injury, you should speak with a lawyer right away. The reason you shouldn’t wait is that things can happen between the time you are injured and the time you file suit. In defending doctors or hospitals, their lawyer may argue that the injury really occurred during that time period; they may also claim that by not doing anything you exacerbated, or made worse, your injury and thus they are not responsible for the magnitude of your injury. Another problem with allowing too much time go by is that it is more difficult to obtain medical records, to remember the facts of what happened or to get people who were there to sign a statement about what they witnessed. Time can change perception so if you believe the doctor or hospital did something wrong and you intend, now or later, to do something about it, you should not wait to seek professional legal help.

    How do you hire a medical malpractice lawyer?
    Medical Malpractice lawyers, or “MedMal” lawyers, clearly identify this as a practice area in their listing on State Bar sites, in listing services or on their resume pages of their law firm. You can connect with lawyers who practice in this area through many ways: call the State Bar and ask for a list of medmal practitioners (note: you can find this online at most State Bar websites as well); you can use a website that lists lawyers or connects you to them (but beware of the sites where lawyers pay to be listed – you will find lawyers who pay to get business, not necessarily ones who would otherwise get business); you can come to a connection platform and put your case on to see if lawyers will respond (like the site I operate, MyLawsuit.com, where lawyers represent clients for a percentage of the recovery); you can speak to a friend who’s had a similar matter if you know of someone; etc. There are now, thankfully, many ways to find a lawyer in a particular field. The problem is finding one that is knowledgeable about your particular type of matter. Once you find one you’d like to retain, you will be asked to fill out a “retainer agreement” which is the document stating you hire them to represent you in your case. There are many things to look for in those contracts including how the lawyer charges you for costs (like Xerox copies, Fedex, etc). Some add a profit to those costs, others pass them through at the amount it costs them. Read this document carefully and ask questions if you don’t understand. If you know someone with legal expertise who can help you to read and understand the contract, as long as they’re not trying to get you to go to someone they know or handle the matter themselves, even better.

    What should you look for when hiring a medical malpractice lawyer? Questions you should ask?
    Experience, experience, experience! Most important is the types of cases the lawyer has handled that are most like yours, when they handled it and with what results. Also ask the percentage of time they spend on medical malpractice cases. If it’s 1% or 5%, they’re probably not as well versed in the latest laws or they may not get many clients who want to hire them. They may also be new at it and trying to establish themselves. Whatever the case, it’s probably better to go with someone who does it all the time. As they say, practice makes perfect! For your own edification, it’s a good idea to ask them timing and what you should expect. Most people don’t understand how long these cases can take and what to expect in the way of communications from their lawyer (ie frequency of conversations, importance of keeping records, attending medical appointments, etc.). If both sides understand what is expected of them and how the matter will proceed then there will be less chances for frustration and dissatisfaction down the pike. Finally, most medical malpractice lawyers take the cases for contingency fees (ie they receive compensation in the form of a percentage of the total award, before or after costs depending on state laws, and that percentage is negotiable.) Standard contingency fees are 33% prior to trial; 40% if the matter proceeds to trial; 50% if the matter must be appealed….plus costs (which can often run 10-15% more). So it’s a good idea to discuss and agree on this up front and understand what you are and aren’t paying for. Most critical is to understand if you will be responsible to pay for the costs of the case (ie experts, faxes, etc) if you lose or if the lawyer will take that loss. Most reputable and successful medical malpractice lawyers won’t require the client to come up with the costs of their case if they lose. Others, who may not have the financial wherewithal to handle a loss, will ask to be reimbursed. However, the best percentage for you may not be the best lawyer for you. Just remember, a lawyer who recovers 100.00 but asks for 40% is better than a lawyer who recovers 10.00 but asks for 25%!

    Are there specialty personal injury lawyers?
    Yes, law is a highly specialized practice these days. In the past one lawyer would handle many matters. Those days are long gone. Though some law firms or lawyers handle both personal injury matters on contingency fee and other matters for upfront legal fees, most specialize in one particular area of law and “personal injury” is a broad description for multiple types of injuries. If you have a medical malpractice case it would be best to insure the lawyer you hire has extensive experience in precisely medical malpractice cases.

    How should you document a medical malpractice event?
    IMMEDIATELY keep detailed notes. Keep notes at the time things are happening to you. Keep names, dates, documents, prescriptions, bills, reports, etc. Whatever you are given, keep a binder for documents with a lined notebook at the front where you can record dates and what transpired on those dates. In the end of the day, a medical malpractice case is only as good as the evidence that exists to support your claims!

    Good luck!

  3. A medical malpractice case can be intricate and difficult. In order to succeed, you must establish that there was a deviation from the standard of care in the community and that the deviation was a direct cause of any injury to you. In most cases, this is proven through the use of an expert witness hired to testify about the standard of care applicable, the deviation from that standard of care, and the harm the deviation caused.

    A medical malpractice case can be expensive due to the cost of the expert witness(es) needed. You will want to consider whether the attorney you are considering has sufficient funding available to to take your case through trial if necessary. An underfunded attorney or law firm will not be able to see your case through.

    In order to find a malpractice attorney, you should ask for word of mouth referrals. If you know any attorneys you can ask them who you should talk to. If you cannot find an attorney that way, try to search the internet for medical malpractice attorneys.

    When you are calling or meeting the attorney ask them about their experience with malpractice cases and their ability to fund them. Not all personal injury attorneys have the experience and background to handle a malpractice case.

  4. What should you look for when hiring a medical malpractice lawyer? Questions you should ask?

    Medical malpractice cases are complicated because you must have a sound knowledge of both the law and medicine to win a case. As with any case, there are legal papers to file with specific deadlines. Medical malpractice cases also require expert witnesses to help prove that you were harmed by the negligence or mistake of a health professional.
    But most important is the first step, finding a lawyer. Once you’ve researched a few medical malpractice attorneys, I recommend you have a few questions ready to ask them:

    – Do you have experience with cases like mine? What were the results? Did you settle outside of the courtroom?
    – Do you have any references? Can I speak with any of your former clients?
    – Finally, how does your fee structure work?

    If this conversation results in the attorney not wanting to take your case, get a second opinion from another attorney. At that point, if both attorneys are uninterested, you may not have a strong case.

  5. Medical malpractice cases are some of the most extensive and lengthy types of cases out there. They involve very-detailed paper work, and it is inadvisable to try to file/pursue a medical malpractice case without the guidance of an experienced attorney. Medical malpractice cases could be occurring because you lost a loved one due to carelessness of a hospital, this is compensation your family deserves.
    During your search for a lawyer, I have a few tips for you. Know if you want to press charges before you look for a lawyer. Going to court is a grueling experience, and you should be prepared for the commitment and toll it can take on your overall well-being. Then if you decide to move forward, I would suggest asking for a referral from friends and family before looking online or in the yellow pages. Before you hire a medical malpractice lawyer, meet with them in person. Your doubts should be cleared, and you should know that they have applicable experience to your case.

  6. I want to bring up something that has not yet been mentioned. Obviously, experience and success with similar cases is absolutely a factor when hiring a medical malpractice lawyer. But, it is also important to hire a medical malpractice attorney with the financial resources to hire your case. You want to work with a firm that can withstand all of the contingency fees to win the case, and get you your due compensation. To ensure this financial well-being, you will have to ask both the firm about their monetary preparedness and look for past clients to give you confirmation.

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