Medical Malpractice Personal Injury Settlements
There is a gray area where medical malpractice is concerned because some medical mistakes are not the result of negligence, but rather of the understandable and necessary risk margin associated with medical treatment. Doctors are only capable of so much, and unless they should have had reason to know better, a patient cannot seek a personal injury settlement.
The gray area comes into play when a patient’s symptoms point in more than one direction. A qualified and ethical doctor might still come to the wrong conclusion, resulting in failure to treat the actual cause of the problem. It becomes malpractice when a doctor knowingly or negligently fails to treat a patient correctly, resulting in personal injury.
In terms of monetary compensation, the top five medical malpractice settlements occur for breast cancer, colorectal cancern, heart attacks, appendicitis and lung cancer. These malpractice suits are often a result of misdiagnosis or of improper use of diagnostic tactics. Because of the imminently fatal consequences of misdiagnoses in these diseases, the monetary compensation will be substantially higher.
One of the most common legal problems with pursuing a medical malpractice settlement involves the statute of limitations for seeking compensation. The statutes of limitations for medical malpractice will vary by state – sometimes even by county – and once they have ended, the patient has no recourse. A patient can also be barred from pursuing such a case if the personal injury came as a result of known medical errors involving certain drugs, surgeries or proactive treatments. In most cases, however, a physician will warn a patient about possible side effects or problems, and the patient will be required to sign a waiver that absolves the healthcare provider from legal recourse.
If you believe that you have been the victim of medical malpractice, the first thing to do is to contact an attorney. Afterward, the following is a list of procedures that are typically followed leading up to trial.
1. Obtaining Evidence
A medical malpractice case cannot be won without evidence, and the patient is the most likely party to have evidence of the malpractice. As the patient, you should keep a daily journal of all events surrounding the medical malpractice injury, including the circumstances leading up to the incident.
Keeping a record of the details surrounding medical malpractice (also called a “paper trail”) will serve two purposes: it will ensure that you don’t forget pertinent information, and it will help your attorney pursue the case. Information about procedures, drugs, surgeries and treatments administered will be imperative to winning your case, and can very possibly mean the difference between success and failure.
2. Presuit
Before a medical malpractice suit ever goes to trial, there are several things that must be done to make sure that the proper steps are followed.
First, your attorney will spend time gathering all of the medical records pertaining to your case. After they are gathered, the attorney will give them to a medical expert – an objective third party – who will review the information and determine if neglect is an issue. The expert will examine all facets of the case, review the treatments and procedures administered, and will give a comprehensive report that outlines the specific causes for neglect in the case.
Then, if neglect is determined, your attorney will prepare a Notice of Intent, which outlines the specific details of the case and asserts that a particular healthcare professional is at fault. The Notice of Intent will be delivered to the healthcare professional, who will than have a choice on how to proceed. He will have 90 days to investigate the claim, to gather his own evidence, and to discuss the situation with the hospital or office with which he is affiliated. After that, a decision will be made about how to move forward. The defense can choose one of three options: 1. settle the case, and pay the requested monetary compensation; 2. offer to accept liability and determine compensation through arbitration; or 3. deny the claim.
If the claim is denied, then the case goes to trial.
3. Litigation
Medical malpractice personal injury cases are often the most expensive to litigate, and often cost up to $100,000 from start to finish. Most attorneys only charge clients when and if the case is won, and a six-figure price is often pennies in a jar compared to the total compensation netted by the plaintiff. Medical malpractice personal injury settlements have been known to total several million dollars, and are relative to the extent of the injury sustained.
Most medical malpractice cases take between one and two years to be resolved from the date the case is filed with the court system. Because it takes several months to gather evidence and to take depositions, the length of the case is extended beyond that which is normally observed during a personal injury trial. In most cases, healthcare providers will deny a claim rather than agreeing to arbitration or to payment, which means that patients who pursue this avenue of compensation must be willing to participate in long, arduous trials.
4. Mediation
Before the case ever sees the inside of the courtroom, most litigators agree to take the course to mediation, which will be held separately from the trial. Discussions held during mediation cannot be used in the trial if the parties cannot come to an agreement. Mediators are often retired judges or lawyers who donate their time to helping litigators solve cases before trial.
If a personal injury settlement is not reached in mediation, then the case proceeds to trial as planned. However, healthcare providers will often settle during mediation once they’ve seen that the plaintiff’s attorney plans to take the case to court.
5. Recoverable Damages
Medical malpractice cases often win sizeable settlements because of several different factors. First, a medical error can result in permanent injury and often death; second, hospital bills and treatment charges are usually substantial, and are fully recoverable; and third, punitive damages are usually awarded due to pain and suffering. Punitive damages are awareded to effectively punish the defendant in the case, both to discourage the same behavior from occuring again and to further compensate the victim.
In other words, recoverable damages in a medical malpractice settlement will be large whether or not there are major compensory damages.
Medical malpractice personal injury claims are very serious, and should not be taken lightly. If you have documented evidence, a lengthy paper trail and an experienced attorney, the chances of winning the settlement increase exponentially.
