Understanding the Complexities of Filing a Medical Malpractice Case

Monday, May 22, 2017

Understanding the Complexities of Filing a Medical Malpractice Case

Written by Malman Law, reviewed by Steve J. Malman.

Experienced Attorney Helping Victims File Medical Malpractice Cases in Chicago

As a patient, you have the right to expect that your physicians treat you with expertise, competency, and out of your best interests. Unfortunately, that is not always the case. Medical errors happen, and more frequently than some would like to admit.

When you are the victim of malpractice, you might wonder what options you have available to you. One is that of a malpractice claim. Filing a medical malpractice claim is not as easy as it sounds. In fact, these types of cases are extremely complex. Therefore, it is best if you familiarize yourself with how they work, the issues that you will face, and what you can do to improve the chances of a successful case.

Dispelling the Myths of Medical Malpractice

Before going into detail about the complexities, first, there is one important myth that must be dispelled. Any unfavorable outcome of a medical procedure or treatment does not automatically constitute malpractice. For example, if you were unhappy with the way your plastic surgery turned out, you still might not have a reason to file for compensation. To have a claim, you must meet the requirements for a viable case. Medical malpractice is often defined differently from state-to-state, which only makes matters more difficult. If you intend to file a malpractice case in Illinois, it is best that you consult with a medical malpractice attorney in the area.

The Issue of Medical Errors

You go to hospitals and physicians because you trust them. You know that they have completed years of school and countless hours of training; therefore, they should be more than qualified to diagnose and treat. Sadly, hospitals and other health care providers do not always adhere to the high standards required of them. In fact, there are instances where they blatantly ignore those standards. When this happens, a patient could suffer an extreme injury – if not fatal results.

But, how do you define a medical professional’s negligence, and what is the standard of care that one must deviate from to qualify as a malpractice event?

Exploring the Numerous Complexities of Malpractice Claims and What You Can Do to Overcome Them

1. The Requirements of Malpractice

To have a viable malpractice case, you must meet several basic requirements. These requirements include:

• The existence of a doctor-patient relationship. You must prove that the physician you are suing has seen and treated you. If your physician consulted another, but that other physician did not physically see or treat you, his or her advice (even wrong advice) does not constitute the doctor-patient relationship required. Also, a casual chat with a physician at the dinner table is not a doctor-patient relationship.
• Deviation from the standard of care. We will dive into this more in a moment, but you must show negligence, which is a deviation from the standard of care.
• Negligence is the direct cause of your injuries. Furthermore, you must establish that the physician’s deviation from the standard of care was the direct cause of your injuries.
• Negligence led to damages. Lastly, there must be damages. Damages can include lost wages, physical pain, mental anguish, medical costs, and so forth. You cannot sue a doctor for malpractice, even if he or she was negligent, if there were no damages associated with the negligent act.

2. What is the Standard of Care?

One term that will come up frequently during a malpractice case is the “standard of care,” but what does that entail? To determine if a physician was negligent, you must prove that the defendant, the physician, breached the standard of care. This means that the duties and responsibilities in terms of conduct fell below what others in the same field would expect as the “acceptable” level of care. Essentially, the physician ultimately must have performed worse than another physician with the same qualifications and experience would have in the same situation.

For example, say a physician made an incorrect diagnosis. However, you kept information from the physician. In this scenario, the physician cannot be liable for the wrong diagnosis, because he or she would not be expected to diagnose without correct information.

In another example, say you gave the doctor all of the information, and the physician still came to the incorrect diagnosis because he or she failed to perform an in-depth examination or review laboratory tests that would have revealed a different diagnosis. In this instance, you have a claim against the physician, because he or she ignored the obligation to care for you, and then came to an incorrect diagnosis.

3. Different Scenarios Leading to Various Outcomes

Another issue for a malpractice case is the type of malpractice. There are different errors that might lead to different types of malpractice claims. These errors, while malpractice, have different requirements. Sometimes, more entities than just the physician are responsible in a certain type of malpractice case.

Common types of malpractice claims include:

• Prescription errors. Prescription errors come in numerous forms. A physician might fail to review your history and prescribe a medication that dangerously interacts with one, or could prescribe something that you are allergic to. Other times, the physician’s instructions were unclear, forcing the pharmacy to dispense medication with the wrong amount, dosage, or instructions.
• Misdiagnosis or delayed diagnosis. There are instances where the diagnosis is entirely wrong, while other times the physician eventually reaches the correct diagnosis after the damage is done.
• Failure to obtain informed consent. With every medical procedure, there are risks. It is a physician’s legal obligation to his or her patient to get the patient’s informed consent – which means informing the patient of all options, risks and benefits, and dangers of skipping the treatment.
• Improper treatments used. The diagnosis might be correct, but the physician uses unorthodox treatments or medications in a way that they were not intended to be used.
• Unnecessary procedures and treatments. Other times, a physician engages in overly aggressive treatments – with instances of unnecessary procedures or treatments performed on the patient. In this case, the patient could suffer unnecessary medical expenses, pain, suffering, and mental anguish.

Unique Challenges in a Medical Malpractice Case

There are unique challenges that can occur in a malpractice case. Even when you have evidence that proves the above-mentioned issues, it still can be difficult to prove and win the case itself.

First, your attorney must hire experts – often more than one. These experts cost your case money, and you must find experts who can not only corroborate the evidence but who can testify that your physician’s actions deviated from what should have been done.

Furthermore, these cases might take longer than one expects. This is because it takes time to sort through medical records, locate witnesses, interview experts, and so forth. Negotiations will go back and forth during this timeframe, but they are not always successful. A malpractice case might take as little as one year or as long as five to six years.

Do not let time discourage you, however. There are ways to pay for your costs while waiting for your settlement. Your attorney will also ensure the other side is not unreasonably delaying your case so that you are desperate to take any settlement offered.

The Statute of Limitations

There is a statute of limitations for a malpractice case, and the sooner you bring the complaint, the easier it is for your attorney to find evidence. The statute of limitations is essentially a clock. If you pass the limitations, you can no longer seek compensation, regardless of how powerful the evidence is.

The Exception to the Statute of Limitations

As with all rules, there are exceptions. The statute does not begin until the date of discovery. Therefore, if you do not discover that you are a victim of malpractice for six years, then the clock does not start to count down until then. However, the statute clearly states that you must “reasonably discover.”

The Affidavit of Merit

Before you can file your medical malpractice claim, the courts require that you obtain an Affidavit of Merit. This is a professional review by a doctor that certifies that negligence occurred. This might be difficult depending on the type of malpractice claim you have. The doctor who certifies your claim must be in the same specialty as the one you are making a claim against. If the physician you are making a claim against comes from a rare specialty, finding a physician to certify becomes difficult, but not impossible.

The Introduction of Multiple Parties

Another complexity is the multitude of parties that might be involved in your case. For example, a doctor can make an error that might also include their employer (i.e., the hospital). Your attorney can examine the facts of your case and decide how many parties might be liable.

Contact an Illinois Medical Malpractice Attorney Today

While these cases are complicated, they are not impossible. Therefore, your best chance for a successful case is to speak with a malpractice attorney as soon as you realize an error occurred. Call the personal injury lawyers at Malman Law today for a free, no-obligation consultation or send a message online.