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Medical malpractice is tragic and can leave a victim with significant and permanent injuries. A patient injured by their physician’s negligence has the right to seek compensation from the negligent doctor.
Negligence, from a malpractice standpoint, is not necessarily the same as negligence in an automobile accident. Negligence typically involves an act that was performed by someone carelessly. In a malpractice case, however, negligence is the deviation from an accepted and proper medical care. A physician does not always have to be careless to be guilty of malpractice.
Compensation is the payment from the defendant to the plaintiff for the injuries sustained in the malpractice. The money is justified based on calculations of costs that the victim experiences after their medical-related injury.
Compensation is by no means a free handout. While some will stereotype it as such, compensation is supposed to help bring the victim back to the financial position they were before the injury.
A person should be held accountable for their actions, even medical doctors. That is why the law allows for individuals to collect compensation for their injuries.
After a medical error or injury, the patient has a few methods for receiving compensation, but they must first go through a series of steps, including:
Compensation then comes in one of two forms: a jury verdict or settlement.
Most malpractice cases are not settled by verdicts. Instead, the defendant will settle out of court. However, there are instances where a malpractice case can go to trial.
A settlement is a guaranteed amount. The hospital or physician, sometimes their insurance company, has agreed to pay a specified amount to resolve the malpractice claim.
The settlement agreement must be drafted and made valid. The settlement is sometimes done in open court where the details are placed on the court record with a court reporter. If the agreement is not made in the courtroom, then it is done privately between both parties. The details of the agreement must be in writing so that it is a valid settlement agreement.
A verdict allows the victim to enter an official judgment against the hospital or responsible party based on the amount awarded by the jury. The award includes interest for past pain and suffering from the time of the injury until the verdict to compensate the victim further.
Once the judgment is entered by the courts, the malpractice attorney can make efforts to collect against the doctor or the insurance company.
A verdict settlement only comes after you have completed a trial and the decision goes to the jury. Most malpractice claims do not reach this point, but there are a select few that do. Therefore, you should always be prepared to go to trial, even if you end up settling out of court.
Malpractice compensation is complicated to calculate, and while no amount of money can make up for the injuries and trauma caused, compensation tries to make the victim whole at least.
Compensation includes multiple elements, but they are broken down into pain and suffering and the economic losses.
Pain and suffering are based mostly on what other cases have settled for with similar injuries and financial damages. Typically, your attorney will review the number of days of “suffering” allowed in the statute and then look for similar cases with injuries and situations just like yours to help them determine the pain and suffering value of the case.
It is important to note that all cases are different. Every person and every medical malpractice injury are not the same. Therefore, you cannot expect that you will receive the same compensation as another person.
Next, you have the economic damages. Economic damages are easily calculated because they allow your attorney to take financial statements, lost wages, and receipts to determine how much you should receive. They can also project forward what you would have earned for future wages if you were not as severely injured.
To determine the actual economic value of your case, your attorney will work closely with an accountant or economist. This professional evaluates and discusses the monetary value of your injuries and compares them to the market value of your skills and other related costs.
To determine medical expenses for the future, your attorney will use a medical specialist. This specialist will assess your injuries and then decide what will happen with those injuries in the future. Rehabilitation experts are often consulted as well as vocational experts to determine your employment capabilities and how permanent your injury might be.
During a malpractice case, the insurance company is likely to request a medical examination. This analysis is referred to as the Independent Medical Examination (IME). Any time there is a dispute about the legitimacy of an injury, insurance companies have the right to request the IME.
The IME includes a doctor of the defendant’s choice. This doctor will then provide reports that can be entered as evidence and will determine the severity of your injuries, prognosis, and outlook. Also, it determines how much you might receive in your settlement.
The IME is an evaluation that helps resolve any questions about your condition, including treatments necessary and the degree of your impairment. The insurance company typically requests IME’s and any time there is a question about your disability rating. Sometimes, insurance companies want to verify that you are truly disabled before paying.
IME’s are more likely in high-value cases. If your malpractice claim is several hundred thousand dollars or into the millions, you can expect that the defense will order an IME to preserve evidence and possibly lower settlement value.
The insurance company can pick the doctor, but they also pay for the physician’s services. The IME, however, is an objective assessment and often the insurance company uses their doctors and relies on them for their testimony in the case.
You may be able to request a follow up with your physician, especially if the IME physician’s findings contradict the medical specialist that your attorney has selected. However, your attorney will better determine if this is necessary.
The IME examination requires you to go to the physician selected. Then you will bring along your medical records and any imaging scans or other documents from your treating physician.
You should request that the IME doctor sends all materials to your attorney.
During the IME, you do not have the doctor-patient relationship established. Therefore, you have no privacy. Anything you say can be reported to the insurance company, and you are not protected in any way. Therefore, be honest, but do not divulge more than necessary.
Before 2010, there were damage caps on medical malpractice claims in the state. However, Illinois has now passed laws that were found to be unconstitutional. So, if you were to file a malpractice claim today, you would not encounter such damage caps.
The Illinois Supreme Court during the 2010 case of LeBron v. Gottlieb Memorial Hospital found that damage caps were unconstitutional. Therefore, you can receive any amount of your damages – if they are reasonable.
Economic damages are the only damages not subjected to the cap. However, judges may reduce punitive damage awards if they feel that they are too high or unjust. Judges often use their discretion when approving damages awarded by the jury.
While you have many questions, the first step you must take is to hire an attorney. An attorney can assist you with your case and ensure that you receive the compensation you deserve.
Speak with a lawyer from Malman Law today regarding your medical malpractice case.
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2 years ago I was involved in a trucking accident involving a 14-wheeler truck that nearly disabled me for life. Steve fought to make sure that I received the most possible compensation for my injuries. I was about to take the insurance company’s lowball offer, but decided to call Steve first – it was the best decision I’ve made yet
NOAH TAFFELPersonal Injury Victim