Medical malpractice is perhaps the most complex, confusing and difficult legal suit to win. Here are several factors that come into play in these cases:
• The dollar caps in medical malpractice suits vary from state to state.
• As well, the statute of limitations for filing a suit varies from state to state.
• In cases that were brought over 70% fail. Only 15% are adjudicated.
• 90% of the physicians accused of malpractice are found to be innocent.
• The costs of bringing a malpractice case are exorbitant, usually upwards of $110,000.
Each malpractice case is unique. The factors and circumstances involved must be studied in detail. Some of the most obvious cases are:
• The diagnosis is inadequate or inaccurate.
• The surgeon makes an error causing further injury or death.
• Another example would be a birth injury causing cerebral palsy.
• The wrong medication or lack of proper medication caused a complication leading to injury.
• Nursing home malpractice.
The key principle of malpractice is whether an “error” was committed and whether that error caused an injury or made an injury worse. This is referred to as the “Standard of Care.”
The decision as to whether or not bring a suit hinges on the extent to which this Standard of Care was breached. At this point you need an experienced attorney in the field of medical malpractice. He/she must be able to read and interpret such tests as MRI, CAT scan and pathology reports to determine if there is enough evidence to bring a suit.
If there is a basis for a suit then a set of supporting factors become important. Here are a few examples:
• Was the injury such that the plaintiff cannot return to his/her normal occupation?
• What is the life expectancy to the plaintiff?
• Will dependents be left without a means of support?
• What is the extent and predicted length of recovery if any?
• What expenses will be incurred during the recovery period?
• How much out of pocket expenses were incurred by the plaintiff?
• What was the amount of awards in similar cases?
Medical expert witnesses will be called to testify. If a surgeon committed an error, then a “Board Certified” surgeon would be the expert witness.
Another complex factor is the matter of “subrogation.” In these cases, Medicare, Medicaid or a private insurance paid for expenses while in the hospital. Here is the sticky point. The expenses incurred by the insurance provider must be repaid out of the proceeds of the settlement before any disbursement is made from an award.