Do I Have A Medical Malpractice-Wrongful Death Case?

The scope of the medical malpractice issue.

Statistics vary drastically on the number of medical mistakes that happen in the United States. Some studies position the variety of medical errors in excess of one million yearly while other studies put the number as low as a couple of hundred thousand. It is extensively accepted however that iatrogenic disease (illness or injury caused by a medical error or medical treatment) is the third leading cause of death in the United States after heart disease and cancer. See, The JOURNAL of the AMERICAN MEDICAL ASSOCIATION (JAMA) Vol 284, No 4, July 26th 2000.

As an attorney who has actually limited his practice to representation of victims injured by another person's carelessness, medical or otherwise, I have actually gotten thousands of calls from prospective clients over the last Twenty Years asking me if they have a medical malpractice case. Since medical malpractice litigation is really pricey and extremely protracted the attorneys in our firm are really careful what medical malpractice cases where we opt to get included. It is not uncommon for an attorney, or law firm to advance lawsuits expenditures in excess of $100,000.00 simply to obtain a case to trial. These expenditures are the expenses connected with pursuing the litigation which include skilled witness fees, deposition expenses, exhibit preparation and court expenses. What follows is an overview of the problems, concerns and factors to consider that the lawyers in our company consider when discussing with a client a potential medical malpractice case.

Exactly What is Medical Malpractice?

Medical Malpractice is medical treatment that breaches of the "Requirement of Care" for medical physicians (or nurses, chiropractic specialists, dental experts, podiatrists and so on.) which leads to an injury or death. "Standard of Care" implies medical treatment that a sensible, sensible medical provider in the very same community need to supply. A lot of cases involve a disagreement over what the appropriate standard of care is. The standard of care is generally provided through using professional statement from seeking advice from medical professionals that practice or teach medicine in the very same specialty as the defendant( s).

When did the malpractice occur (Statute of Limitations)?

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In Ohio the medical malpractice statute of constraints is one year from the date of the malpractice, or the last date the accused treated the complainant (victim) or the date the complainant found or reasonably should have found the malpractice. Some states have a two year statute of restrictions. In Ohio if the victim is a small the statute of restrictions will not even begin to run till the small becomes 18 years of ages. Be advised however derivative claims for parents may run several years previously. If you think you might have a case it is essential you contact an attorney soon. Regardless of the statute of restrictions, physicians move, witnesses vanish and memories fade. The faster counsel is engaged the sooner crucial proof can be maintained and the better your opportunities are of dominating.

Exactly what did the medical professional do or fail to do?

Just due to the fact that a client does not have a successful arise from a surgery, medical treatment or medical treatment does not in and of itself suggest the medical professional made a mistake. Medical practice is by no means an assurance of good health or a total recovery. Most of the time when a patient experiences an unsuccessful result from medical treatment it is not since the medical supplier slipped up. Most of the time when there is a bad medical result it is despite good, quality medical care not because of sub-standard healthcare.

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When discussing a prospective case with a client it is essential that the client be able to inform us why they believe there was medical negligence. As all of us understand individuals frequently pass away from cancer, heart problem or organ failure even with good medical care. However, know that people typically must not die from knee surgical treatment, appendix elimination, hernia repair or some other "small" surgery. When something very unanticipated like that happens it definitely deserves exploring whether there was a medical error. If in doubt most medical malpractice attorneys will discuss your case with you informally on the telephone. A lot of legal representatives do not charge for an initial assessment in carelessness cases.

So what if there was a medical error (proximate cause)?

In any carelessness case not just is the burden of proof on the complainant to prove the medical malpractice the plaintiff need to also prove that as a direct outcome of the medical negligence some injury or death resulted (damages). This is called "proximate cause." Considering that medical malpractice litigation is so costly to pursue the injuries need to be considerable to necessitate moving forward with the case. All medical mistakes are "malpractice" however just a little portion of errors trigger medical malpractice cases.

By trucking accident attorney of example, if a moms and dad takes his kid to the emergency clinic after a skateboard mishap and the ER doctor does not do x-rays despite an apparent bend in the child's lower arm and tells the father his child has "simply a sprain" this most likely is medical malpractice. But, if the kid is effectively identified within a couple of days and makes a complete healing it is not likely the "damages" are serious enough to carry out a lawsuit that likely would cost in excess of $50,000.00. However, if because of the hold-up in being correctly detected, the young boy needs to have his arm re-broken and the growth plate is irreparably harmed due to the delay then the damages likely would necessitate additional investigation and a possible lawsuit.

Other crucial factors to consider.

Other concerns that are important when determining whether a client has a malpractice case consist of the victim's habits and case history. Did the victim do anything to cause or contribute to the bad medical result? A typical tactic of medical malpractice defense lawyer is to blame the patient. If it is a birth trauma case, did the mom have proper prenatal care, did she smoke or utilize drugs throughout her pregnancy? In other cases, did the patient follow the medical professional's orders, keep his visits, take his medicine as instructed and inform the physician the truth? These are truths that we need to understand in order to identify whether the physician will have a valid defense to the malpractice lawsuit?

Exactly what happens if it appears like there is a case?

If it appears that the client might have been a victim of a medical error, the medical error caused a considerable injury or death and the client was compliant with his medical professional's orders, then we have to get the client's medical records. In many cases, getting the medical records includes nothing more mailing a release signed by the client to the medical professional and/or health center in addition to a letter requesting the records. When it comes to wrongful death, an administrator of the victims estate needs to be designated in the regional county court of probate then the administrator can sign the release requesting the records.

Once the records are gotten we examine them to make sure they are total. It is not unusual in medical negligence cases to receive insufficient medical charts. When all the pertinent records are obtained they are supplied to a qualified medical expert for evaluation and opinion. If protests an emergency clinic medical professional we have an emergency room doctor examine the case, if it protests a cardiologist we have to get an opinion from a cardiologist, and so on

. Primarily, what we need to know form the specialist is 1) was the healthcare provided below the requirement of care, 2) did the violation of the standard of care result in the patients injury or death? If the doctors viewpoint is favorable on both counts a lawsuit will be prepared on the customer's behalf and normally submitted in the court of common pleas in the county where the malpractice was devoted or in the county where the accused lives. In some limited situations jurisdiction for the malpractice claim could be federal court or some other court.


In sum, an excellent malpractice attorney will carefully and thoroughly review any prospective malpractice case prior to filing a claim. It's not fair to the victim or the physicians to submit a claim unless the expert informs us that he thinks there is a strong basis to bring the claim. Due to the expense of pursuing a medical carelessness action no good attorney has the time or resources to lose on a "unimportant lawsuit."

When talking to a malpractice attorney it is necessary to properly offer the legal representative as much information as possible and address the attorney's questions as entirely as possible. Prior to talking with typical pain suffering settlement consider making some notes so you always remember some crucial reality or scenario the attorney may require.

Last but not least, if you believe you might have a malpractice case contact a good malpractice lawyer as soon as possible so there are no statute of restrictions problems in your case.

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