Medical malpractice is one of the leading causes of death in the U.S. More people are killed by medical mistakes every year than by car accidents, pneumonia, and diabetes. According to a recent Johns Hopkins study,more than 250,000 people a year are killed by malpractice, with some reports placing that number at more than 400,000 a year. Despite this, 70% or more of medical malpractice claims are dropped, denied, or dismissed after the initial stages.
If you’ve been injured by medical malpractice and are considering filing a claim, it’s important to know why those claims are most often dismissed. In Part I of this article, we discussed the most common categories of medical malpractice claims and the legal requirements for malpractice claims. In this article, we’ll discuss why medical malpractice claims might fail and how to ensure that they’re successful.
In order to successfully prosecute a medical malpractice claim, you must meet certain elements. You must show the existence of a doctor/patient relationship and that: (1) the health care provider was negligent; (2) the negligence caused an injury to the patient; and (3) the injury led to specific damages. The existence of a doctor/patient relationship is generally pretty straightforward, but the other elements of a malpractice claim are more complicated to present. Nevertheless, if any one element is missing or weak, the malpractice claim won’t be successful.
Negligence is the heart of a medical malpractice claim but not every unfavorable treatment outcome qualifies as negligence. Rather, the physician must have harmed the patient in a way that a competent provider under the same circumstances wouldn’t have. A doctor doesn’t have to be perfect but must practice in a reasonably skillful and careful manner. This element of a medical malpractice claim must be established with expert testimony. The medical expert must discuss the standard of care for a physician and how the doctor’s treatment varied from that standard of care.
Aside from establishing the negligence of the doctor, a claimant must also show that the doctor’s negligence caused harm. This can be tricky because frequently a patient is already suffering from an illness or injury. If a cancer patient dies after surgery, it can be difficult to prove whether the surgical mistake or the cancer was responsible. Therefore, the medical expert may also help establish that the physician’s negligence actually caused the harm the patient suffered.
Simply showing that a doctor didn’t perform to the standards of her profession isn’t enough for a successful malpractice claim. The claimant must show some specific type of damage. Claimants can generally sue for damages such as physical pain, mental anguish, lost wages or earning capacity, and additional medical bills.
Because showing negligence on the part of the physician is so important to a malpractice claim, effective expert testimony establishing negligence is crucial as well. In fact, studies show that the success of a medical malpractice claim before a jury largely correlates with how other physicians judge the quality of care. In other words, if medical professionals believe the evidence of medical negligence is weak, the claim won’t be successful. Transversely, if medical professionals believe there is strong evidence of medical negligence, the claim is much more likely to be successful. So,the qualifications and testimony of the medical expert you select for your malpractice claim are absolutely essential to a successful lawsuit.
Once you’ve met the elements of a medical negligence claim and have strong expert witness testimony, there are still some legal stumbling blocks that can sink a malpractice case, including the: (1) statute of limitations; (2) special notice; and (3) the medical malpractice review board.
Every state in the U.S. limits the time period when you can bring a malpractice case. This restriction is called the statute of limitations. In most states, the statute of limitations requires that you bring a medical malpractice claim within two years of the negligent act or when the claimant knew or should have discovered the injury. This “discovery rule” allows a claimant some additional time if he didn’t realize he’d been injured at the time of the negligent act. After that time period, any suit will be dismissed, regardless of the merits. The specific standard and time limit vary from state to state, so it’s important to consult an attorney as soon as you believe that you’ve been harmed by medical negligence.
In many states, the claimant is required to provide each defendant with a special notice of the claims, along with a statement from a medical expert, before filing a medical malpractice claim. Again, the requirements of the special notice and the deadlines for filing vary among the states but your case won’t be able to proceed without jumping through this hoop.
In many states, medical malpractice claims must first pass through a special medical malpractice review panel before they can proceed to court. This review panel can usually hear arguments and witness testimony and the parties can present evidence. The review board can then determine whether or not medical malpractice occurred.
While the review panel may not be able to award damages, the findings are generally admissible in court. If the review board finds that no negligence occurred in your case, a positive outcome in court is much less likely. It’s important for your attorney to take the medical malpractice review board process seriously and to present compelling expert witness testimony for a successful suit later on.
As you can see, it’s important to select an experienced medical malpractice attorney to increase your chances for a successful outcome. If you believe you or a loved one have been harmed by medical malpractice, call us today. Our knowledgeable malpractice attorneys can help.
The Underwood Law Office in McKinney, Texas serves all of Dallas and Fort Worth, including McKinney, Frisco, Plano and Allen. Our Huntington, West Virginia attorney office serves all of West Virginia.
Tags: earning capacity, harm to the patient, lost wages, medical bills, medical malpractice, medical malpractice claim, medical malpractice claims, medical negligence, mental anguish, negligence, physical pain, physician’s negligence, surgical mistake, Texas Medical Malpractice, West Virginia Medical Malpractice