Medical Malpractice Cases: What To Know

What is medical malpractice?

Medical malpractice is when a hospital, physician or other health care professional causes injury to a patient through negligence or omission. According to the law, patients have the right to expect that the health care providers who care for them will do so according to certain recognized standards of judgment and treatment. These standards,  taken together, are known as the “standard of care.” If a patient is injured through medical care or treatment, and it is determined that this standard of care has not been met, the patient may have the right to a claim of medical malpractice. And, as a result, may be entitled to compensation, either through a settlement or trial.

➜ According to the BMJ, medical negligence is the third leading cause of death in the U.S., preceded only by heart disease and cancer.

Not all injuries that result from or during medical treatment are medical malpractice. To be considered as medical malpractice under the law, a patient’s claim must have the following TWO characteristics:

The injury was caused by negligence. While a patient may feel that their doctor of medical facility violated the standard of care, that on its own is not enough to have a malpractice claim. The patient also needs to prove that they sustained an injury that was directly cause by the health care provider's negligence. For example, the injury resulted from a physician’s failure to diagnose, and therefore treat, a condition, or from a surgeon operating on the wrong site, or leaving a surgical instrument inside the patient’s body. The patient, with representation by a qualified medical malpractice attorney, must prove that the negligence didn’t just happen, but caused injury.

➜ In the United States, about a dozen sponges and other surgical instruments are left inside patients' bodies every day, resulting in around 4,500 to 6,000 cases per year, according to the American Society of Anesthesiologists.

The injury resulted in significant damages.  Medical malpractice lawsuits are extremely expensive to litigate, frequently requiring testimony of numerous medical experts and countless hours of deposition testimony. For a case to be viable, the patient must show that significant damages resulted from an injury received due to the medical negligence. If the damages are small, the cost of pursuing the case might be greater than the eventual recovery. To pursue a medical malpractice claim, the patient must show that the injury resulted in disability, loss of income, unusual pain, suffering and hardship, or significant past and future medical bills.

How can a medical malpractice lawyer help me?

Medical malpractice lawyers help people obtain justice and monetary compensation for injuries caused by the negligence of health care providers. After verifying that a lawsuit is warranted, they may litigate cases on behalf of people injured while under the care of physicians, dentists, nurses, or anesthesiologists. Malpractice lawyers may also file suit against health care clinics, hospitals, and medical corporations, due to negligent conduct.

A medical malpractice lawsuit is a multistep process.

1. First, an attorney investigates the case details and reviews relevant records, and a medical expert is hired to testify on how the provider’s actions breached the accepted standard of care.

2. An attorney may then decide to write a demand letter and attempt to negotiate. In some states, an appointed panel or tribunal must determine whether filing a lawsuit is warranted. To initiate a lawsuit, the attorney files a complaint containing the patient’s allegations. In some states, the attorney must, at the same time, file a certificate of merit containing an opinion from a qualified physician stating that the physician has reviewed the plaintiff’s medical records and determined that the health care provider likely was negligent in treating the patient.

3. After filing, the process of discovery takes place, during which witnesses and experts may be called on to give depositions under oath. In the majority of cases, the parties will negotiate or enter mediation to reach a settlement before a trial ever takes place. If a settlement cannot be reached, the lawsuit goes to trial, where a jury will decide the outcome of the case. The time frame for a medical malpractice lawsuit can vary a great deal from case to case and state to state. Settlement negotiation can occur at different points in the process (sometimes before a suit is even filed), and a settlement may be reached in anywhere from a few months to several years.

➜ According to the American Medical Association, general surgeons and OB-GYNs are three-and-a-half to four times more likely to be sued for malpractice than pediatricians and psychiatrists, who are least likely to be sued. About 63 percent of OB-GYNs and general surgeons have ever been sued, compared with 16 percent of psychiatrists and 18 percent of pediatricians.

How do medical malpractice settlements work?

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.

Here’s an example: The attorney and patient agree to a 33% contingency fee, and the lawyer agrees to pay litigation costs up front. If the case settles for $200,000 and the lawyer paid $10,000 in litigation fees, the lawyer would be reimbursed for those fees first, then take their 33% contingency (payment for services) of $62,700 out of the remaining $190,000, leaving the patient with $127,300. It’s important to note that some states have limited contingency fees in medical malpractice cases, arguing that huge fees lead to an increased cost for health care. Your attorney will be able to provide more information on state limits in your state.

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. If you believe this is your situation, you may have a malpractice case. When you initially consult a medical malpractice attorney, they will look for signs that medical malpractice--not just injury--has taken place. These may include:

• 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

➜ The average U.S. out-of-court medical malpractice settlement is just over $425,000, while the average jury award is over $1 million, according to clinician-resources site Medscape. But, due to huge costs of litigating medical malpractice, and the chances of winning in court, more than 90% of medical malpractice cases settle before trial.

Ready to speak to an attorney? Here’s our list of the best medical malpractice attorneys near you.