Medical malpractice poses a unique challenge when filing a lawsuit. You not only have to prove that you were injured but you also have to show that the injury was caused by negligence on the part of a healthcare provider. This can be difficult to do, which is why it’s important to have an experienced medical malpractice lawyer by your side.
Medical malpractice cases can be complicated at times as you are fighting for your rights against doctors, hospitals, or medical professionals that have a team of lawyers to protect them. You need to be aware of the most common defenses they will use against you and the medical malpractice case that you are trying to bring against them.
While there are occasions where medical malpractice lawsuits can be concluded within a few months, in most cases, a medical malpractice suit can take about two years until settled.
Medical malpractice cases are expensive and lengthy, so without someone who is experienced in medical malpractice law by your side, you will have a hard time winning the case and getting compensated for what happened to you or your loved one. Thus, when you are trying to pursue a medical malpractice claim, it is of great importance to have your case handled by someone who knows the law and has experience winning these types of cases.
What Are the Four Elements of Medical Malpractice?
Before going through the most common defense in a medical malpractice claim, let’s first understand what the four elements of a medical malpractice lawsuit are.
In order for a medical malpractice case to be successful, the plaintiff (the person who was injured) must be able to prove four elements:
1. Duty of Care
The plaintiff must show that the health care provider owed him or her a duty of care. For example, all doctors have a duty to care for their patients. This is assumed in any doctor-patient relationship. It is the duty of a medical professional to provide care in a way that is not harmful to the patient.
2. Breach of Duty
A breach of duty is when a medical professional deviates from the standard of care that is expected. This can be done in many ways, which include:
- Failing to diagnose a condition
- Misdiagnosing a condition
- Failing to order the proper tests
- Giving the wrong medication
- Performing the wrong surgery
- And more
Such medical negligence will not only require you to seek additional medical treatment but will also cause you emotional distress. You might be unable to work and support yourself or your family. As a result, you may incur significant financial damages. Not to mention the risks of these medical errors that can leave you permanently disabled, receive more injuries, and become ill.
3. Negligence That Causes Injury
Included in the elements of medical malpractice is when medical malpractice occurs due to a doctor’s negligence, and it must have caused an injury to the patient. In most cases, it can be easily identified as it would have resulted in the worsening of the patient’s condition. For example, if you went to the doctor for a broken arm and they set it incorrectly, this would cause you additional pain and suffering and require you to seek further medical treatment to correct the error.
If you are not injured physically, emotional harm such as mental anguish is also compensable and is considered an injury. The good thing with injuries as a result of negligence is that the evidence will primarily appear on you or your loved ones’ medical records, testimony, or both. Thus, it will be easier to prove that the medical professional is liable.
4. Damages Sustained By the Patient
Lastly on our list of elements of medical malpractice is the patient must have sustained damages because of the malpractice. These can be economic or noneconomic.
Economic damages are those that have a specific dollar value and can be calculated easily. They include:
- Medical bills & expenses (past and future)
- Lost wages (past and future)
- Property damage
- Funeral and burial expenses (if the patient died because of medical malpractice)
- Receipts for out-of-pocket expenses
On the other hand, noneconomic damages do not have a specific dollar value. They include:
- Pain and suffering
- Mental anguish
- Loss of companionship or consortium
- Emotional distress
Unlike economic damages, these are more difficult to calculate as their value is subjective. However, a good medical malpractice attorney will be able to help you come up with a reasonable figure that will be included in your claim.
Putting It All Together
With the four elements of a medical malpractice lawsuit in mind, you are now one step closer to filing a claim if you or your loved ones have been injured due to medical negligence. This will help you and your attorney to filter out whether you do have a case or not or if anything that happened can help you prove that medical malpractice occurred.
Tips on How You and Your Attorney Can Best Prepare Your Case
Medical malpractice litigation is a lengthy and difficult process. It will take months, sometimes years, for your case to settle. To get the most out of your claim, it is important to have a good attorney-client relationship in order to build a strong case. When looking for someone to stand as you or another patient’s attorney, it’s critical to hire someone with experience and expertise in handling medical malpractice cases. From monetary compensation to punitive damages, an experienced medical malpractice lawyer will know what to do and how to get you the best possible outcome for your claim.
Here are some tips you and your attorney can use to better prepare your case:
1. Get All the Relevant Medical Records
One of the first steps in preparing a medical malpractice case is to obtain all relevant medical records. Before meeting a medical practice lawyer, be sure to collect all necessary documents such as:
- Hospital records
- Medical bills
- Test results
- Referral letters
- Operative reports
- Notes and progress reports from all treating physicians
- Anything else you or your attorney may find relevant to the case
It is critical to know and gather as many details as possible as this will help your attorney determine whether you have a case or not.
2. Know Your Purpose for Filing a Claim
Before anything else, you and your attorney must be on the same page as to why you are filing a claim. Determine the reason behind your lawsuit. Is it for:
- Compensatory damages?
- Punitive damages?
- To prevent the same thing from happening to other patients?
- Or all of the above?
Your answer will help you and your attorney strategize on how to best approach your case. This will also help your medical malpractice lawyer to dictate the nature of the medical malpractice litigation process.
3. Are You Really Injured?
A medical malpractice case is often, if not always, associated with an injury. Before you and your attorney can file a claim, there must be an injury. This means that the damages caused by the malpractice must be more than just trivial. If you think that you or your loved ones have been injured due to medical negligence, it is best to consult with a medical malpractice lawyer to know for sure.
Remember, seeking revenge or just being annoyed with a doctor’s care is not enough to file a case. There must be actual physical or psychological injuries that have occurred. The court will not take your medical malpractice lawsuit seriously if there are no injuries to show. It is important to the court that the plaintiff has suffered some form of damage before taking legal action.
4. Be Honest With Your Medical Malpractice Lawyer
This is one of the most important tips on this list. In order for your medical malpractice lawyer to best help you, you must be honest with him or her. This includes being honest about your medical history, lifestyle, and anything else that may be relevant to the case. The more information you can provide, the better
Your lawyer is there to help you win your case and get the compensation you deserve. With that being said, you must be honest about everything as any little detail can make or break your case.
Make sure to have your damages closely examined as well. Your medical malpractice lawyer will request your medical records in order to assess the severity of your injuries. He or she will also ask you questions about your pain and suffering in order to get a better idea of what you are going through and from there, build a strong case for you.
It is also important that you be honest about your financial situation as well. This includes your current and future earnings, job security, and other sources of income. This will help your medical malpractice lawyer better understand the extent of your damages and what kind of compensation you may be entitled to.
5. Discuss Your Lawyer’s Payment and Fees
A medical malpractice case can be very expensive. In order to avoid any financial surprises, it’s best to discuss your lawyer’s payment and fees beforehand. This way, you will know what to expect and can budget accordingly.
Most medical malpractice lawyers work on a contingency fee basis. This means that they will only get paid if you win your case. The contingency fee is usually a percentage of the total amount of compensation you are awarded. For example, if you are awarded $100,000 and your lawyer’s contingency fee is 30%, he or she will get $30,000.
However, there are other costs associated with filing a medical malpractice lawsuit. These costs can include expert witness fees, court filing fees, and the cost of getting your medical records. Also, be sure to understand the extent of your lawyer’s contract. There may be some clauses in there that you are not comfortable with.
Opt for a medical malpractice lawyer that offers no-obligation case evaluation. This way, you can get an idea of what to expect without having to commit to anything or pay anything upfront. Free legal consultation is a common offering among medical malpractice lawyers so be sure to take advantage of it.
Most Common Defenses a Doctor, Medical Practitioner, or any Healthcare Professional Will Use in a Medical Malpractice Case
A medical error or unwanted medical care is something that any of us could face when we go to the doctor or hospital. No system is perfect, and sometimes things happen that are beyond our control. But, it is important to be prepared, especially when you are a victim of medical negligence.
To give you an idea of what possible defenses a doctor, medical practitioner, or any healthcare professional will use in a medical malpractice case, below are some of the most common ones:
1. Good Samaritan Laws
The Good Samaritan Laws refer to the legal protections given to those who voluntarily give aid to someone in need. During medical emergencies, doctors often help save a life even if they are not on duty or are not required to do so.
This law is in place to encourage people to help others in need without the fear of being sued. As long as the person giving aid did not act negligently, then he or she will not be held liable for any damages. But, there are some states that have exceptions to this rule. This gives the patient the right to sue if the Good Samaritan did something that a reasonable person would not have done under the same circumstances.
2. No Standard of Care
In this defense, the healthcare professional will argue that there was no established standard of care for the particular medical situation. This means that there is no way to determine if the care that was given was appropriate or not. This defense is often used in cases involving new or experimental treatments.
As long as the healthcare professional can show that he or she acted in accordance with the standard of care, then he or she will not be held liable. They can call their own witnesses, which can be other medical professionals, to show that the care given was appropriate.
If the evidence on both sides of the plaintiff and the defendant is equal, then the court will most likely rule in favor of the healthcare professional.
3. Substantial Minority
This defense is also known as the respected minority rule. It can be used when a medical practitioner says that he or she did not violate the standard of care because a substantial minority of respected medical professionals would have acted in the same way.
Medical professionals tend to use different methods that are out (not entirely) of common practice. But, it doesn’t mean that it is not an accepted method. As long as there is a substantial minority of respected professionals that would have acted in the same way, then the medical professional will not be held liable.
4. No Causal Relationship
One of the most common defenses that are likely to be used by medical professionals is the no-causal relationship between the act and the injury. Take for example a patient with cancer. Even having missed diagnosis, damages such as pain and suffering, death, and treatment costs may not be recovered if the patient would have ultimately died from cancer regardless of whether it was diagnosed timely. This is one of the most difficult defenses to overcome because it requires expert testimony to show that the patient would not have died if a timely diagnosis and treatment had been given.
5. Assumed Risk
All medical procedures being performed have some risks associated with them. And, most of the time, patients are made aware of these risks before the procedure is done. A consent form is usually signed by the patient beforehand. This form will list all of the risks that are associated with the procedure.
If a complication arises from a procedure and it is one of the risks that was listed on the consent form, then the patient will not be able to sue the medical professional.
6. Avoidable Consequences Defense
This defense is a way to minimize the damages that are awarded to the plaintiff. It can be used in cases where the plaintiff did not follow the medical professional’s instructions after the treatment was given. For example, if a patient is told to take a certain medication and the patient doesn’t, then the medical professional can use this defense.
The medical professional will not be held liable for any damages that could have been avoided if the patient had followed the instructions. However, this doesn’t mean that the patient will not be awarded any damages at all. The patient can still recover the damages that were caused by the medical professional’s negligence but not for the damages that could have been avoided.
7. Compensation From Other Sources
This defense is typically used in medical malpractice cases. It can be used when the plaintiff has already received compensation from another source for the same injuries. For example, if the plaintiff receives worker’s compensation benefits, then he or she will not be able to sue the negligent party for the same injuries.
The court will not award the plaintiff twice for the same injuries. The plaintiff can only recover from one source. Typically, in a medical malpractice case, the patient is entitled to recover 100% of the damages from the doctor, the hospital, or any other negligent party. The plaintiff in this case might be required to pay back the worker’s compensation benefits to the workers’ compensation insurer.
The Bottom Line
If you or your loved ones have been injured by medical negligence, it is important to seek legal help as soon as possible. With an experienced medical lawyer that can help you navigate the complex legal system and guide you through every step of the process, you are sure to get the compensation you deserve regardless of the defense the medical professional will use.
When looking for a lawyer to hire, it is best to opt for someone that has years of experience in cases like these. The Pagan Law Firm, for example, has over 30 years of experience in medical malpractice law. Get in touch today for a free consultation!