You may have read stories in the newspaper about someone suing a doctor and getting millions of dollars in compensation. Or you may have seen the opposite – stories of cases that had merit but that attorneys refused to handle so they never went to trial and never resulted in any recompense.
What you probably won’t read are tales of the many people who have brought a case to trial and lost – a scenario that’s more common than you might hope.
The reality is that medical malpractice is difficult to prove and win. There are specific requirements for bringing a medical malpractice suit that vary from state to state, and one misstep can be cause for dismissal.
It can also be difficult to convince juries who are often predisposed to believe in the reliability of doctors, and who may be more likely to understand and forgive the mistakes of the hard-working and dedicated professionals upon whom their lives may depend.
There are other factors that contribute to the complexity and difficulty of bringing – and winning – a medical malpractice case against a negligent professional. Understanding a few of the things that can impact your case can help you choose the most effective course of action.
Requirements For A Malpractice Claim
There are some basic requirements that you must meet before a claim of malpractice can be considered. First, you must be able to prove a doctor-patient relationship. That means the doctor in question had actually seen you and treated you – not merely dispensed advice over dinner.
Secondly, you must be able to show negligence. Simply being dissatisfied with treatment is not grounds for a malpractice suit. You must show that the doctor caused you harm in a way that another, competent doctor would not have done.
Thirdly, you must be able to show that the negligence, and not your illness or injury, was responsible for harm. Negative outcomes are not always attributable to negligence. A patient may die after a cancer treatment, but that does not mean the treatment caused the death.
Finally, you must be able to prove that the negligence led to damages. You can’t sue for subpar treatment if you suffered no actual damages. But physical pain, loss of wages, mental anguish and additional medical expenses are adequate grounds for a case.
Types Of Malpractice
Myriad scenarios can lead to a case of malpractice, from surgeons leaving tools inside a patient’s body after a procedure, to prescribing a medication that causes heart failure. Typically, malpractice falls into one of three categories.
One is a failure to diagnose. If another, competent doctor would have reasonably been able to diagnose a condition and that diagnosis would have led to a better outcome, you may have a case.
The second is improper treatment. If a doctor treats you in an unconventional way that deviates from a recognized “standard of care”, you may have a case. By corollary, you may also have a case if your doctor selected an appropriate treatment but administered it improperly and outside of standards.
The third is failure to warn of known risks. If you are not informed of risks, then you cannot provide informed consent. If, on knowing the risks, you would have chosen not to undergo a treatment or procedure then you have grounds for a case.
Challenges To Bringing A Successful Case
Even with grounds, and meeting all of the requirements, it can still be difficult to pursue and win a medical malpractice case.
Malpractice cases are expensive, because you have to hire experts to testify against the doctor in question. Hiring experts can run in the tens of thousands of dollars each, and you may be required to consult more than one.
Malpractice cases take an average of six years to get to trial, which may be untenable if you’re suffering from lost wages or excessive medical bills and looking for relief.
Malpractice cases have strict timelines. For example, suit must be brought soon after the injury occurs – in some states that timeline is established as of the date of the alleged negligence and in others it is based on when the patient became aware of the injury.
The time period during which you are allowed to bring suit is called the “statute of limitations”, which means that unless you file the lawsuit within the specified timeframe, your case will be dismissed, regardless of its merits.
Malpractice cases require an Affidavit of Merit, which means that another doctor must review the case and verify that the doctor in question did wrong. This can be especially challenging because there are also strict requirements as to how this must be accomplished.
For example, your case must be verified by a doctor who practices in the same specialty in which the doctor you’re suing practices. That can be more difficult than it seems, given the complexity of specialties and sub-specialties.
Technicalities and requirements aside, doctors don’t like to testify against other doctors. Nor do juries like to question their inherent faith in doctors. Both of these can pose emotional barriers to your case.
When To File A Malpractice Suit
In some cases, it may not be in your best interests to bring a medical malpractice suit, even if you have the merit to do so.
Sometimes, the state where you bring suit may have a cap on damages, which may limit the compensation you can receive and make the effort less than worthwhile. Sometimes you may have difficulty finding an attorney to take a case if the monetary compensation is too low.
If your injuries are manageable you may have better options than bringing a medical malpractice suit, especially if your primary goal is to gain closure or to help prevent future acts of negligence.
In that case, you can file a complaint with the medical board. It will establish that the doctor has a history of negligence and can help if he injures someone else. While you won’t gain anything from it, at least not from a monetary perspective, you will have the satisfaction of knowing you took positive action that may help someone in the future.
Attempting to bring a medical malpractice case to trial, assuming you’ve met the requirements and have the grounds, is best suited in scenarios where someone has died, lost a limb, or become otherwise seriously and permanently disabled as a result of negligence, and in which that person is experiencing significant pain and suffering, expenses or loss of income.
Ultimately, you’ll need an experienced trial attorney if you’re thinking of bringing a medical malpractice suit; one who understands the timelines, the requirements and who has experience with doctors and other professionals who may need to testify.
It’s a challenge that may or may not be worth pursuing, so if you have questions about your options, get in touch and let us know how we can help.