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Frequently Asked Questions

  • What does a medical malpractice lawyer do?

    Medical malpractice lawyers represent patients who have been injured during or as a result of medical treatment, when those injuries are caused by the negligence of health care providers, including physicians, dentists, anesthesiologists, clinics, and hospitals. A medical malpractice attorney will meet with a patient, determine if a malpractice case is warranted, gather information from the patient and from medical experts, depose defendants under oath, and negotiate a settlement on behalf of the patient. If an out-of-court settlement cannot be reached, a medical malpractice attorney will litigate the case in court on behalf of the patient.

  • Do I have a medical malpractice case?

    To have a medical malpractice case, a patient must have been injured when a health care provider, who had a duty of care to the patient, breached the accepted standard of care. An attorney looks for certain signs that medical malpractice has taken place, including:

    • A lack of informed consent, in which a person didn’t agree to a treatment or procedure, or the  provider failed to fully explain the risks before proceeding
    • A highly unusual outcome results from a procedure or treatment, which may indicate that the provider made a mistake
    • A patient is informed by their health care provider or hospital that a mistake was made
  • What are the chances of winning a medical malpractice lawsuit?

    According to the U.S. National Institutes of Health’s 20-year study of medical malpractice case outcomes, winning a suit largely depends on the strength of the evidence. Patients won just 10% to 20% of jury trial cases with weak evidence, compared to 30% of lawsuits with midrange evidence. Patients succeeded in 50% of cases with strong evidence. In addition to evidence, factors such as an attorney’s familiarity with the practice of medicine, and the attorney’s specialized background in medical malpractice law, may contribute to the success of the lawsuit.

  • Is a misdiagnosis suitable for medical malpractice?

    Misdiagnosis can constitute malpractice if it's proven that a doctor has failed to meet the usual standard of care. These types of cases usually involve mishandling of testing or delayed diagnoses. They may also involve a doctor's failure to interpret test results, screen for a specific condition, provide a specialist referral, discuss symptoms a patient is experiencing, or investigate possible causes of reported symptoms.

  • As a patient, how do I choose a good medical malpractice lawyer?

    Start by creating a short list of local medical malpractice lawyers specializing in plaintiff representation, then narrow it down by taking these steps:

    • Look at the lawyer’s website for details about their malpractice experience and knowledge.
    • Check whether an attorney is a member in good standing of local, state, and national trial lawyers' associations and the state bar association.
    • Ask what percentage of each lawyer’s caseload is devoted to medical malpractice, what portion of the cases go to trial versus settling, and how much of the case work is delegated to support staff.
    • Verify that an attorney works on a contingency fee basis and absorbs up-front expenses.
  • What percentage of a settlement do medical malpractice lawyers get?

    Medical malpractice lawyers typically represent clients on a contingency basis, receiving payment only if the plaintiff receives a settlement. The standard fee is 33% of the amount awarded. Attorneys may also pay litigation expenses up front, such as filing fees and other case-related costs, before receiving reimbursement from the settlement. Contingency fee percentages, other litigation costs, and payment structures may be negotiable.

  • What’s the statute of limitations on medical malpractice?

    Statutes of limitations for medical malpractice lawsuits differ in each state. The limitations in three of the most populous states show how these laws can vary:

    • California plaintiffs have one year from discovering an injury or three years maximum from the injury date. Cases of foreign objects left in a person's body during surgery have no three-year deadline.
    • New York claims must be filed within 30 months of an injury-causing event. The time limit for left-behind foreign objects is one year from discovery.
    • Texas plaintiffs have two years to file suit, post injury. There are several exceptions, including continuing treatment situations, discovery after the limit expiration, and a 10-year maximum limit.

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