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.