10 Things You Need To WIN A Medical Malpractice Lawsuit (Extended Guide)

One of the hardest types of lawsuits to win is medical malpractice. The New England Journal of Medicine reported that only 21% of the cases filed turn out to be in the plaintiff’s favour. Unfortunately, sub-standard care by physicians is still a wide-spread phenomenon and, as such, if you have been a victim of such practice, you are entitled to seek reparations. Following are the 10 things you should know in order to win your lawsuit.

1. Proof of a Doctor-Patient Relationship

Before you can file any case, you must prove that the defendant was actually your doctor or healthcare provider. This is usually the easiest to prove since multiple records exist of transactions between a patient and their doctor. In the eyes of the law, the doctor can now be held liable for your well-being and any negligence on their part has a bearing. This part of the case is usually unchallenged.

2. Proof of Doctor’s Negligent Care

Usually there exist a standard level of care that a medical practitioner is supposed to provide a patient. The issue lies in proving that the doctor, willfully or not, failed to provide a minimum level of skill and care that should have been given by any professional in his field. This standard, is however arbitrary, and must be established in court by comparing with others in the field. Clinical practice guidelines may also be presented as evidence to establish a baseline. In such cases usually both parties supply expert witnesses who corroborate either the defendant or the plaintiff’s claim. In case of the plaintiff, it is the job of the expert to methodically show how the doctor failed to meet the minimum of needs of the patient as they are required by law and ethics.

3. Establish Link Between Negligence and Injury

It is not enough to prove that the doctor had been negligent in his care. There must also be evidence to show that the negligence has led to the injury which the plaintiff is filing for, and that it could have been prevented with proper attention. Here, the defendant may try to attribute your condition to an underlying condition, or to a failure on your part. Once again, the testimony of an expert witness helps to prove that the injury and resulting damages may occur only as a result of the sub-standard care provided by your physician.

4. Secure an Expert Witness

Cases where you need to prove negligence on part of the hospital or a doctor, the victim must produce an expert witness who can testify that the medical practitioner was indeed negligent and the victim is not crying wolf. The witness must be professionally licensed, trained and must be an expert in the area of care that relates to the case. They must be certified by a governing authority such that the training and expertise is acknowledged. Only then can the medical malpractice expert witness be allowed to testify in court.

5. Know the Statute of Limitations

Most cases have a time limit, called the statute of limitations that specifies the maximum duration for which a claim can be filed. The law on this varies from incident to incident and country to country and it is important to be apprised of all the technical legalities in order to have the strongest case. The rule also depends on the type of patient being injured. For example, in case of injury to a newborn, the family may sue the hospital up to one year after the child’s 18th birthday. On the other hand, negligent death cases allow a window of only a year after the incident. That standard deadline for Alaska is two years.

6. Discovery Rule

In some cases, the patient may not have been able to realize that they had been a victim of medical malpractice and, as such, could not have known that they had a right to sue. In such cases the standard deadline does not start from the date of incident. Instead, the claimant has two years (in case of Alaska) from the date when they knew to file a petition. It must be remembered that the victim has to conclusively prove that they could not have known about the negligent practices before then.

7. Limits of Damages

Depending on the type of injury, some states have limits on the amount that can awarded to the petitioner for damages. It is important to consult an attorney, or in case you self-represent, to know how much to seek so that you do not end up incurring losses. In Alaska, all non-economic (i.e., hindrance to enjoyment/quality of life) damages are capped at $400,000 or life expectancy of the victim multiplied by $8,000.

8. Shared Faults

In some cases the court may find the victim sharing part of the fault with the defendant. Instances from refusing to follow medical orders to knowingly engage in practices that might hinder recovery can all fall under the banner of shared fault. In these cases, the court is liable to reduce the amount of damages awarded to the claimant in proportion to the fault. In situations where the defendant is sure to be declared guilty, their attorney may try to pin part of the blame on you in order to mitigate some of the damage. It is imperative to keep complete records of all activities to avoid any repercussions.

9. Collateral Source Rules

A number of states have rules in place that prevent the plaintiff from claiming payments made by a third party in the case. Ideally, any and all expenses relating to your recovery should be covered under damages if you win. However, in states like California, this is not allowed. Thus you need to carefully weigh the potential costs of the lawsuit and the maximum amount you may receive before going forward with the case.

10. Be Aware of Your Financial Constraints

Trials are expensive with some cases costing upwards of $1 million. A number of cases are lost because the plaintiff simply does not have the ability to keep paying their attorney. Before deciding to file for a case, you must have a clear idea of your budget, what tier of attorney you can afford and how invested you are. Some law firms allow the claimant to pay only on a successful win and thus, may be able to alleviate some of the burden. Research your lawyers carefully before making a final decision.

Qualities of a Good Medical Malpractice Expert Witness

Expert witnesses are very vital for pursuing a medical malpractice case. If you are trying to prove that the medical provider fell below the set standards of the medical practice, then you need an expert witness to testify as to what the proper standards of medical care are. Moreover, the medical malpractice expert witness has to testify how failure to meet the required procedures or standards resulted in the injury or harm that you’re suing for. You can also choose to have another medical malpractice expert witness to testify what the exact injury is.

Most experienced medical malpractice lawyers have the experience of choosing the right medical malpractice expert witnesses for various cases depending on the type of injury. The medical expert witness will evaluate the case and discuss with the lawyer on how to proceed. You can simply let your lawyer go about the process of choosing the best experts that he or she is comfortable working with. In addition, the lawyer knows whether the case deserves a local medical malpractice expert or one from a different state.

Hiring the right medical expert witness will prove to the defense that you’re determined to go an extra mile in seeking justice. It can also be counterproductive if you hire the wrong medical expert witness because that shows that the lawyer doesn’t believe in the validity of the suit or the case is too weak to attract a qualified expert.

Qualities of a good medical malpractice expert witness

Respected medical expert witnesses have the following characteristics and qualifications:

• Should be a medical provider who is active in the medical practice other than just testifying in medical malpractice cases.
• Should have a medical license that is active even if he or she has retired.
• Should not be spending most of his or her practice lifetime in testifying for the defense or various plaintiffs in different courts.
• Should not be an expert who occasionally lectures about how to win or defend medical malpractice cases.
• Should not have published texts or blog posted about the subject of medical malpractice and how he or she has won cases in the process.

Therefore, it’s very important to choose a law firm that has experienced and skilled medical malpractice lawyers who know how to select the best expert witness for your particular case. In case your case is different, an established firm can think outside the box and start a search for medical expert witnesses by contacting sources in national witness organizations.

5 Ways on How To Drastically Reduce The Risk of Medical Malpractice?

As a doctor, the dread of a medical malpractice claim will always be there for you to counter. Be that as it may, knowing you are doing everything you can, to keep such a dreaded disaster from happening can help set your psyche calm. Giving amazing clinical care can, obviously, diminish the probability of a mistake that prompts a claim, however the clinical side is not by any means the only region to concentrate on. Medical malpractice experts give away many tips to avoid such unnecessary unpleasantness.

ORGANIZE PHYSICIAN COMMUNICATION

Extraordinary correspondence among doctors and patients can decrease misbehavior hazards from numerous points of view. When you have a very professional relation with patients, always expect that they will probably research the greater part of their prescribed medicinal lists. Obviously, that lessens the danger of an indicative blunder or slip that could prompt a claim.

DEMAND THAT STAFF STEP UP

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Similarly as doctors’ connections with patients are crucial, so are staff individuals’ collaborations with them, taking note of the fact that poor client relations prompts poor patient fulfillment, which improves the probability of a claim which is highly undesirable.

REQUIRE CONGENIAL AND PROFESSIONAL MANNERS

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Staff individuals should be discerning that their discussions with other staff, for example, discourses about children, TV shows, et cetera, might be caught by patients. This is highly stressed by Medical malpractice experts.

BRIEF STAFF REGARDING ALTERCATIONS

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Furious or irritated patients may dole out their dissatisfaction on staff, so they assume a major part in whether these circumstances are taken care of suitably. One ought to likewise focus on holding instructional meetings in which staff and doctors pretend troublesome patient experiences so that everybody is well settled and trained in the ways of dealing with these circumstances.

ASK THE NURSES TO BE YOUR EYES AND EARS

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Front-work area staff ought to watch persistent responses and feelings as they are leaving your practice. In the event that patients leave annoy, staff ought to advise the doctors or potentially chiefs, who can then call the patient later to check in. That registration call, could be the distinction between a harmed persistent relationship, and a more positive one.

If you follow these simple guidelines, you are sure to never fall on the wrong side and commit the crime of

 

4 Tips for Finding Qualified Medical Malpractice Experts

Victims of medical malpractice often pursue legal claims against health care providers for compensation with respect to their losses. When a legal case is opened against a medical facility or provider, evidence will need to be organized and presented during discovery to support the victim’s claim. Often, this process will include securing one or more medical malpractice experts who can testify on behalf of the plaintiff to indicate their opinion that the defendant’s negligence caused or contributed to the plaintiff’s losses. Thus, finding a qualified expert is a very important task that may determine the outcome of the case. Finding a medical expert is usually handled by the attorney, but plaintiffs might be able to help by checking with the following sources.

City or county medical associations.

Often, a city or county medical association may exist in the community where the victim resides. While the medical association may not necessarily maintain a database of medical experts for testimony purposes, they may know of and be able to recommend nurse experts or physicians who have provided legal testimony in similar cases. Not every doctor and nurse or other medical professional is willing to review a patient’s records and provide legal testimony during discovery or courtroom proceedings. But those that are sometimes are known and referred to by the local medical association.

Area bar association.

Similarly, the local bar association in a city or region might have a list of local experts that provide this type of legal service. If a formal list is not on file, bar association employees may know of medical experts who have worked on previous cases and be willing to provide a name and contact information. Sometimes they prefer to work directly with the plaintiff’s attorney, and if so, the attorney will request the experts’ information.

Medical service providers.

Hospitals and medical groups usually know of experts within their ranks who work with attorneys as legal experts. They can sometimes recommend the experts to attorneys or victims who are looking for medical expertise in reviewing records and providing legal support to the case.

Medical malpractice victims with similar issues.

Inquiring by word of mouth about others who have been involved in medical situations where experts provided testimony can lead to informal referrals to experts who may be willing to work with an attorney on a specific case in a medical area where the expert has experience.

Attorneys have access to professional databases of medical experts who are willing to review legal claims and provide an informed opinion. The experts should be vetted in terms of credentials, including academic preparation, job history, and legal experience to determine their suitability for a particular legal case.

How To Hire the Best Medical Malpractice Experts

After filing a malpractice lawsuit and while preparing for trial, the plaintiff’s attorney will begin searching for relevant medical malpractice experts. These should not include medical personnel who have treated the plaintiff or who are affiliated with medical practitioners involved with the plaintiff in any way. Often, the malpractice experts are selected from a database containing names with credentials from around the country. Sometimes an attorney has worked with a specific expert in previous cases and will request that person’s participation again. However, when looking for the best malpractice expert for a case, keep the following tips in mind.

Specialization.

Matching an expert to a specific plaintiff injury may be simple if the damages are clearly related to an accident or the presumed negligence of the defendant. For example, if the plaintiff works in a restaurant where proper safety precautions are not taken to protect employees from burn injuries while handling hot food, the restaurant owner and manager may be at fault. However, if the plaintiff’s injuries are potentially due to carelessness on his or her part, or if a burn injury, for example, gets infected possibly due to an underlying health condition like diabetes, an expert with specialization in both areas might be needed. Try to find an expert who has pertinent knowledge on the specific type of injuries or conditions involved.

Location.

An expert who lives across the state within driving distance will be cheaper to hire in terms of travel expenses than one who lives across the country. Airplane fare, interstate tolls, lodging, and meals may be added to the expert’s fee. If you have a choice between two equally competent experts, consider hiring the one that resides closer.

Experience.

A malpractice expert may be highly knowledgeable about his or her field of medical study, but experience is extremely important. Ten years of bedside care or clinical practice providing hands-on experience enhances the academic credentials and research conducted by someone in a particular area of medicine. If possible, it is advisable to hire someone who has given malpractice testimony previously so that he or she will know what to expect and hopefully be prepared to do an expert job.

Testimonials.

Medical malpractice experts sometimes provide in their vitas the testimonials of lawyers with whom they have worked. This helps to support their credibility claims and reassure the attorney they are comfortable with and successful in courtroom or deposition testimony and cross examination.

Often, the success of a malpractice claim rests on the testimony of an expert’s testimony. An expert with solid knowledge in the designated medical field may not be able to stand up to defendant’s questioning or challenges. Look for an expert with proven courtroom experience.

Types of Medical Malpractice Claims

Throughout North America, fatalities from medical malpractice are the third most common cause of death. Medical malpractice fatalities fall directly behind heart and cancer death in Canada each year, according to medical malpractice experts.

In addition to the large number of medical malpractice fatalities, many more people suffer injuries arising from healthcare negligence. Medical malpractice claims tend to fall into one or another of different categories

Failure to Properly Diagnose

Many medical malpractice claims in Canada arise from a physician failing to diagnose properly an ailment, disease, or condition afflicting a patient. As a corollary of the failure to properly diagnosis a patient, another are in which malpractice claims are quite common is the failure to diagnose in a timely manner.

Surgical Errors

Surgical errors represent another broad category of medical malpractice claims. Medial malpractice experts maintain that surgical errors come in a variety of different forms. These errors include everything from operating on the wrong part of a patient’s body to leaving a foreign object behind in a patient’s body following a procedure. Other surgical errors include those associated with the administration of anesthesia as well as failure to maintain proper hygiene protocols, resulting in a patient infection.

Failure to Inform Properly

Another area in which medical malpractice claims are based involves a failure to properly inform a patient of the risks of a particular treatment or procedure. In the absence of this type of full disclosure of the benefits and risks of a particular procedure, a patient is not capable of making an informed consent.

Keep in mind that even if a patient is provided a detailed informed consent form to sign, that does not necessarily mean a patient has been properly informed of risks nor consented to them. In fact, because these forms sometimes are provided and signed at inopportune moments, the fact that they were submitted to a patient, who signed the documents, made not prove to be much of a defense to a failure to inform type of claim.

Medication Errors

Mistakes in regard to medications form the basis for a notable number of medical malpractice claims annually. This includes everything from prescribing the wrong medication to indicating improper dosages of a correct medication.

Prenatal and Childbirth Errors

A significant number of medical malpractice cases arise from mistakes made in the case of pregnant patients. In addition a good many claims stem from errors associated with labor and childbirth. These claims can involve the mother, the child, or both.

Engage Legal Medical Experts

When facing a healthcare negligence issue, a patient is wise to be proactive in retaining the services of legal medical experts. A medical malpractice attorney will schedule an initial consultation with a patient to discuss a case, usually with no legal fee charged.

How to File For a Medical Malpractice Claim

When you visit a hospital, you usually expect to meet a well-trained medical profession with many years’ experience. With such qualifications, you are assured of excellent treatment. However, doctors are only human, and they may make errors at times. Medical malpractice occurs when a medical profession is negligent during treatment or diagnosis, and his actions cause harm to the patient. When this happens, a patient may decide to ask for compensation. In such a case, hiring medical malpractice experts is recommended.

Common types of medical malpractice

Various situations can lead to a patient filing a medical malpractice claim. They include:

Improper diagnosis

If a competent physician would have made a different diagnosis that would have resulted in a better outcome than the one that was achieved, the patient can launch a claim against the doctor who made the wrong diagnosis.

Wrong treatment

If the physician prescribes wrong treatment procedures that lead to negative outcomes, then that patient can launch a claim. Also, if the doctor prescribes the appropriate medicine but administers it wrongly, the patient has a viable medical malpractice claim.

Giving wrong information or failing to provide vital information

Doctors are responsible for warning patients about any dangers associated with a certain medical procedure. This is the duty of informed consent. If the physician fails to inform a patient about the risks of a procedure, then the patient is affected by the treatment, the patient can file a medical malpractice claim.

Medical malpractice case procedure

Here are some basic steps to be followed during a medical malpractice case:

Contact the medical profession in question

First, talk to the medical profession and consider possible remedies. Some doctors are even willing to correct the problem free of charge.

Contact the associated medical licensing board

If communicating with a medical profession does not solve the problem, you can contact the board that administers medical licenses. Even if the board cannot make the doctor compensate you, they can discipline or issue a warning the medical profession. They can also offer guidance on the action you should take.

Find how much time is left for you to file a claim

Civil claims, including medical malpractice, have time limits of until when they can be filed. These limits are known as statutes of limitations, and require the affected to file a case within a specified time after the injury occurred. Check out your state laws to find out the exact time.

Get a medical assessment to prove that your case is viable

In most cases, you are supposed to file a certificate of merit. It shows that the injuries you suffered resulted from the negligence of the medical profession. To file the certificate of merit, you will have to contact another medical expert to review your medical records and ascertain that the first provider deviated from the required standards. It is the medical Medical malpractice experts who file the certificate of merit.

Consider an out of court settlement

Medical malpractice cases can be costly and timely. Therefore, if both parties can agree on a compensation arrangement, with the help of their lawyers, it is better than going to court.

Who Could Be Liable in a Medical Malpractice Case?

There are few things worse than knowing that you have been diagnosed with an illness that you never actually had or were the victim of a botched surgery. In addition to the physical and emotional pain, you could accrue thousands or even millions of dollars in medical bills. However, with the help of a medical malpractice expert witness, it may be possible to hold all parties who hurt you liable for their actions.

The Hospital Where the Mistake Happened Could Be Liable

If you were hurt during a surgery or received an incorrect diagnosis in a hospital setting, that hospital could be liable. In theory, it is responsible for overseeing its employees and everything that they do. However, plaintiffs must show that the doctor was actually an employee if they hope to hold the hospital liable for his or her error.

The Doctor May Be Considered Negligent

In the event that your doctor makes an incorrect diagnosis, it may be considered medical malpractice. This may be true if he or she was negligent or failed to live up to the standard of care that is owed to a patient. An expert witness may be able to verify whether or not a correct diagnosis could have been made based on his or her experience and tools available when making it.

A Surgeon Who Operates On You Could Be Liable

A surgeon who makes a mistake during a procedure could be sued for medical malpractice. This is true even if the mistake was made by a team member and not be the surgeon him or herself. Like a hospital overseeing its employees, the lead surgeon is responsible for everything that his or her assistants do while treating a patient.

The Person Who Makes a Mistake During Surgery Can Be a Defendant

Although the surgeon is responsible for his or her team members, it doesn’t absolve the person who actually made a surgical mistake from liability. That person may be held personally liable in a civil suit or named in a criminal suit depending on the details in the case.

Your Insurance Company May Be Responsible Too

If your insurance company wouldn’t pay for a procedure that you needed, it could be liable for negligence. For instance, if you couldn’t get a surgery that was medically necessary and your condition worsened, a jury may find that the insurer played a role in what happened.

There are many parties that need to work together to ensure a patient gets the care that he or she needs. If one or more parties doesn’t live up to their responsibilities, all of those parties may be ordered to pay damages determined either by a jury or through a negotiated settlement.

Ways to Prove Medical Malpractice Occurred

When a patient is injured or killed because of negligence on the part of the doctor or a related party, that person or a family member may take legal action. However, simply making a mistake does not mean that a medical professional acted in a manner that rises to the level of malpractice. How can it be proven that a patient suffered because of substandard care?

The Components of Negligence

Proving negligence means that there was a duty of care owed to the patient. This is generally established by the presence of the doctor/patient relationship. Next, there must actually be an injury caused to a patient as well as a causal link between the lack of care from a doctor and the injury. Finally, it must be shown that the doctor or another medical professional acted in a way that didn’t meet the standard level of care based on his or her expertise and access to proper diagnostic tools.

Was Informed Consent Obtained Before Treatment Began?

A patient must be allowed to give what is known as informed consent. In other words, the patient must learn of all the risks and benefits of a given procedure or course of treatment. He or she must also be told of alternatives to a planned treatment or procedure. Failure to do so is evidence of negligence and possibly battery in some cases.

A Medical Malpractice Expert Witness May Be Necessary

It is rare that a medical professional would openly admit guilt in a Medical malpractice expert witness case. Even if he or she knows that a mistake was made, a guilty verdict could cost millions of dollars as well as garner negative publicity. Health care companies are also loathe to admit their mistakes in court as it provides leverage for a patient to obtain more money in a settlement. Therefore, it may be necessary to hire an expert witness who can look at the facts of a case and provide a thorough analysis explaining that negligence occurred. This may be enough to convince a doctor or health care provider to settle the case quickly out of court.

Multiple Parties May Be Liable

If a health care provider fails to authorize a surgery that could save a person’s life while the doctor fails to mention it to the patient, both could be liable in a case. Multiple parties may also be involved if a surgeon makes a mistake during surgery and others on the team try to cover it up.

Patients may be entitled to thousands or even millions of dollars in compensation if they have been the victim of negligence. If a patient dies, his or her family members may pursue a wrongful death suit to win compensation for medical bills incurred and other final expenses.

Things You Should Know Before Considering A Medical Malpractice Case

If you want your medical malpractice suit to be taken seriously in a Canadian court, you will need to include the testimony of a medical malpractice expert witness. The facts that you present to the court will almost always be far too complex and involved for a non-medical expert to determine whether your attending physician really should be held liable for malpractice. Engaging a medical malpractice expert witness as a part of your legal strategy is the best way to prove to the court that your claims are fully legitimate.

Why You Need To Have A Malpractice Witness At Your Hearing

If you do not have a Medical malpractice expert witness at your hearing, the judge may simply dismiss the case or render an unfavorable decision based on lack of solid evidence. You’ll need to have an expert malpractice witness explain the facts of the case and render the details of the malpractice in easy to understand terms. The jury is not required to render their verdict on the basis of this opinion, but having an expert witness will certainly give you a needed extra layer of solid credibility.

What Kind Of Testimony Will An Expert Malpractice Witness Give?

A medical malpractice witness will give testimony at your trial regarding at least two very significant matters. These matters are:

  • The standard of care that you received from your attending physician.
  • Whether or not the malpractice that occurred definitely resulted in an injury.

Was The Standard Of Care You Received Insufficient?

Your medical malpractice witness will give their expert opinion to the court regarding what a competent, fully attentive physician should have done under the same circumstances. They will then give their objective opinion concerning whether the expected standard of care was lived up to. To bolster their opinion, they may make use of medical journals, medical board guidelines, and additional testimony from other doctors or medical experts.

Did The Actions Of Your Physician Lead To Malpractice?

The next step will be for your medical malpractice witness to give their testimony concerning whether or not they believe that the actions of your physician definitely led to your injury. It’s important to remember that any number of factors could have contributed to your injury, with medical malpractice being far from the only possible culprit.

This is where the professional opinion of your malpractice expert is crucial to the success of your case: The expert needs convince the judge and jury that the incompetence, oversight, or negligence of your doctor led directly to malpractice that caused your injuries. If the expert witness can convince the jury, your case is basically won.