I Think I Have a Medical Malpractice Case - What do I do now?
Doctors can and do make mistakes; they are human after all. But sometimes the mistakes they make are completely preventable, and they wind up causing patients serious harm – or even killing them. While most of us give our doctors the benefit of the doubt, if you think you have a medical malpractice case, explore those suspicions; you’re certainly not alone, as the numbers suggest.
Medical Mistakes Are Not Uncommon
Medical mistakes are alarmingly commonplace. An often-quoted 1999 Institute of Medicine report, “To Err is Human,” estimated that medical errors kill between 44,000 and 98,000 people a year.
A more recent 2013 article in the Journal of Patient Safety found that the IOM report may be an underestimate; it found that between 210,000 and 440,000 people may die each year due to medical errors. If that’s the case, it would make medical mistakes the third leading cause of death in the United States, behind only heart disease and cancer. The number of people that survive medical mistakes – many of whom suffer significant disability – is even greater.
If you think you or a loved one was the victim of a medical mistake, you may have a malpractice case against a doctor or hospital, or other healthcare professional.
Do you have a valid medical malpractice case?
Malpractice cases can be difficult to pursue, but if your case contains all the elements and it’s successful, you can recover most, if not all, of your damages. There are four fundamental elements that comprise a medical malpractice case.
- Duty of care – The doctor, hospital, or clinic owed you a duty of care, e.g., there was a valid doctor-patient relationship.
- Breach of duty – The physician acted in a way that breached the standard of care (discussed below). In other words, s/he acted negligently.
- Causation – The physician’s actions (or inaction) is what caused your harm.
- Damages – You sustained damages as a result, such as additional medical bills, loss of wages, etc.
Negligence: Breaching the Standard of Care
Not every mistake a doctor makes is considered malpractice. The prime factor upon which medical malpractice hinges is negligence, i.e., a breach of the standard of care. The question that determines whether or not a case constitutes malpractice is: Did the physician act in such a way that other doctors in similar situations would have acted?
Let’s say, for instance, that your doctor followed all proper protocols, ordered the right diagnostic tests, thoroughly assessed your records, and still wound up misdiagnosing you. If other physicians would testify that they likely would have made the same mistake and that your doctor abided by the industry standard of care, then your case likely isn’t malpractice and you may not qualify to recover damages.
On the other hand, if medical experts would testify that your doctor made a mistake that was outside of the norm, preventable, or related to carelessness or negligence, it’s quite likely your case is viable and you could recover damages.
Proving a Medical Malpractice Case
In 2012, medical malpractice payouts in the United States totaled over $3 billion, averaging one payout every 43 minutes, according to Forbes. That’s a lot of successful cases, and a lot of much needed settlement funds for victims. In order to file and win your claim, you’ll have to be able to satisfy the elements listed above, and you’ll have to have the proof to back it up.
There are numerous types of evidence that might be useful in proving your case. A few examples include the following.
- Your medical records
- Expert witness testimonies, particularly of medical experts
- Eyewitness testimonies
- Your medical journal (You should keep a record of your doctors’ names, appointment dates and times, advice they gave you, prescriptions or treatments they recommended, and descriptions of how you feel, e.g., pain, nausea, etc.)
- Medical bills, insurance records, and other bills and receipts for expenses related to your injuries
If you don’t have the necessary evidence or don’t know how about collecting it, don’t worry – your medical malpractice attorney can assist you.
Steps to Take if You Think You’re a Victim of Medical Malpractice
If you think your case meets all the required elements of medical malpractice, there are several initial steps to take – just get started right away to meet Georgia’s statute of limitations for medical malpractice cases.
- Begin documenting everything, if you haven’t already. Keep a medical journal, and collect all pertinent info about your condition in a file folder. Don’t forget to document your treatments and any correspondence with the doctor’s office or hospital. This documentation will not only help you explain your case to an attorney, it will serve as evidence during the course of your case.
- Be upfront with your physician about your questions and concerns. It’s okay to ask direct questions. It’s a good idea to have a family member come with you to your appointment to offer support and also serve as an eyewitness. Here are some examples of questions to ask.
- “Why did this happen?”
- “What went wrong?”
- “How can this be fixed?”
- “What’s the prescribed treatment plan?”
- Consult an attorney. This is paramount to the success of your case for several reasons. It’s difficult for laypersons suffering from an injury or illness to navigate the civil court system, go head-to-head with insurers, and gather enough supportive evidence when they do not have an attorney. An attorney can also advise you on whether or not to speak with hospital or clinic representatives, negotiate for a higher settlement, and help you stay within the legal time lines.
- Request your medical records, and do so as soon as possible. You can call the doctor’s office or hospital and ask about their procedures for obtaining your records. You might have to collect them in person, via fax, or sign a release for your lawyer. The longer you wait to obtain your medical file, the greater the chances of someone altering your file or “losing” test records.
Dealing with Finances during a Medical Malpractice Suit
Most doctors have malpractice insurance. So, when you bring medical malpractice claim, the doctor’s or hospital’s insurance company will usually pay your settlement. You can request compensation for damages that include economic losses (medical bills, lost wages, rehab, etc.), as well as non-economic losses (anguish, pain and suffering, etc.).
Settling a medical malpractice case can take some time, though. What are you supposed to do in the meantime to pay your bills and make ends meet? First, you can use your own insurance policies to cover some expenses, such as your health insurance and your disability insurance. You can also look for community outreach programs, ask family for help, or look into public assistance.
As a last resort, you can try obtaining a pre-settlement loan from a finance company. Be forewarned that there are a couple drawbacks to this last option; your attorney can explain the pre-settlement funding in more detail.
Find Out if You Have a Valid Case Worth Pursuing – Call for a Free Evaluation
For a free case evaluation with a medical malpractice attorney in Atlanta, contact the Law Office of Jason R. Schultz, P.C. at 404-474-0804. You can also fill out our contact form to set up your case evaluation.