Medical Malpractice Legal Information
 

OVERVIEW

Medical malpractice lawyers specialize in helping people who have been seriously hurt by mistakes by doctors, nurses and other medical professionals. But medical malpractice has a more specific definition than “mistakes by doctors.” In order to be considered medical malpractice, the mistakes must fall below the accepted standard of care in the medical community. That is, if most other doctors wouldn’t do what your doctor did, you may be a victim of medical malpractice. Another way to put this is that medical malpractice takes place when the doctor was negligent -- unreasonably careless -- in treating you.

This doesn’t always have to be an action taken by the medical professional, such as botched surgery. In fact, medical malpractice frequently takes place when medical professionals fail to do something important. A common example is a missed diagnosis. If you go to see a doctor with all of the common symptoms of a heart attack, and the doctor does not diagnose or test you for heart problems, it would probably be considered medical malpractice. Medical malpractice can also take place when medical professionals make errors in prescribing and administering medications, or in using or prescribing medical devices.

 

“HOW COMMON IS MEDICAL MALPRACTICE?”

Medical malpractice is surprisingly common in the United States. A study released in 1999 by the Institute of Medicine found that avoidable medical mistakes cause as many as 98,000 deaths in our country every year. Another study, by Harvard researchers, concluded that mistakes in hospitals caused 80,000 deaths and 234,000 injuries nationwide in 1988.

Another Institute of Medicine study, from 2006, looked specifically at prescription drug errors. That study found an estimated 1.5 million mistakes with medications each year -- and the authors believed it was a conservative estimate. They put the economic cost of these mistakes at $887 million a year among Medicare patients alone.

 

“WHAT IS A BIRTH INJURY?”

A birth injury is a trauma or injury that results from events that take place during a baby’s birth. Birth injuries are not always caused by medical malpractice, but they do form the basis for a significant number of medical malpractice cases. When a child suffers a severe birth injury, the result can be especially tragic because the effects of that injury will follow him or her for a lifetime, significantly affecting his or her future and quality of life.

Most birth injuries are mild and disappear after a few weeks. Those considered more serious, which may form the basis for a medical malpractice lawsuit, include:

  • Erb’s palsy, a type of brachial palsy, caused by damage to the nerves that connect the brain and the arm. This damage, often caused by forceps pulling on the child during birth, paralyzes the child’s arm, hand or both. In severe cases, the eyelid on the same side may droop. The condition sometimes goes away on its own, but in other cases, it may be a lifelong disability for the child requiring therapy and surgeries.
  • Cerebral palsy, caused by oxygen deprivation during birth. The lack of oxygen causes brain damage, which affects how the body’s muscles work. Cerebral palsy patients may have trouble moving, speaking or swallowing; and muscle tightness or spasms. Because it is caused by brain damage, it’s a lifelong disability requiring extensive physical therapy, medications, surgeries or support.
  • Infant head injuries, which can be minor or serious. Because babies’ heads come through the birth canal first, they’re subject to significant pressure, which can cause swelling, bruising and broken blood vessels. These should go away quickly, but may be complicated by jaundice or a large blister on the skull called a cephalohematoma. Occasionally, a child’s skull plate can break during delivery, which can cause serious problems if it is indented into the brain.
  • A broken collarbone. If the child is unusually large or the mother’s pelvis is unusually shaped or small, they can develop a condition during birth called shoulder dystocia, in which the child’s shoulder is literally stuck behind the mother’s pelvis. Doctors won’t allow this to go on very long, because shoulder dystocia can deprive the child of oxygen. The child’s collarbone may break accidentally, or doctors may choose to break it (or the mother’s pelvis) in order to continue the birth.

 

“WHO CAN BE HELD RESPONSIBLE FOR MEDICAL MALPRACTICE?”

The people or organizations directly responsible for the mistakes are the ones who can be held legally liable. That can include general-practice doctors, surgeons, anesthesiologists, nurses, emergency medical technicians and many other types of medical professional. State laws may limit this somewhat, and federal employees cannot be personally sued for medical malpractice.

However, the law allows you to hold organizations as well as people responsible for medical malpractice. That means that a public or private hospital, medical company, nursing home or any other organization that provides medical care may be sued, if you’re able to show that it committed the malpractice.

 

“WHAT IF A GOVERNMENT HOSPITAL OR EMPLOYEE CAUSED MY INJURIES?”

You have the right to sue regardless of whether you were injured in a public or a private facility. However, some of the rules change when state and federal governments are involved. Because governments’ rules on how to pursue a medical malpractice claim can be complex and bureaucratic, it’s important to make sure you follow them correctly the first time. If you don’t, you may lose your access to the courts.

If you were injured by a federal employee or hospital (such as military medical services), you’ll sue under the Federal Tort Claims Act. That law gives you two years from the date when you noticed your injury to file an administrative claim. You must use a special federal form for this. The agency has six months to take action or deny the claim. After that time is up, or if the claim is denied, you may file a lawsuit in federal district court. It’s important to know that the FTCA does not allow you to sue a federal employee directly, but you may sue the agency over the employee’s actions.

If you were injured by a state employee or hospital (including a state university-run hospital), you must also file an administrative claim before you may sue. The time period in which you must file a claim varies by state, but it can be as short as 60 days from the day you discovered the harm. Once the government agency rules on or denies the claim, you may file your lawsuit in state court. From that point, the lawsuit will resemble other cases in most respects.

 

“WHY SHOULD I CONSIDER A MEDICAL MALPRACTICE LAWSUIT?”

Medical malpractice can be emotionally devastating -- but it can also cause a financial catastrophe for victims. If you’ve been seriously injured by a medical mistake, you may need much more medical care to correct or compensate for the problem. In cases that leave the victim disabled, full-time care may be necessary for the rest of the victim’s life. This can all be extremely expensive, and keep a formerly healthy person out of work. Those who lose a loved one to a medical mistake have funeral costs to think about, and may have suddenly lost an income. And of course, you may still be required to pay the bill for the original substandard medical care.

Medical malpractice lawsuits are designed to meet those financial needs, while holding careless medical providers responsible for their mistakes. They can bring in the money victims and their families need to get necessary medical care, and provide for victims left unable to provide for themselves. They can also bring in compensation for non-financial injuries, like a permanent disability, loss of a parent or physical pain and suffering. In some states, you may also be able to get punitive damages in cases where the provider acted recklessly, maliciously or deceitfully.

 

“HOW LONG DO I HAVE TO THINK ABOUT FILING A MEDICAL MALPRACTICE LAWSUIT?”

Every state has a statute of limitations for medical malpractice, which is a deadline for filing a medical malpractice lawsuit. If you wait until after the statute of limitations, you cannot file a successful lawsuit -- no matter how good your case is. The time limit varies from six months to four years, according to the state. It can be significantly shorter if you plan to sue a government agency or employee.

However, it’s important to know that the time limit doesn’t necessarily start when the medical malpractice occurred. In some cases, the clock doesn’t start ticking until you notice your injury. For example, if doctors accidentally left equipment inside you during surgery, and it didn’t hurt for months, the statute of limitations doesn’t start until it begins hurting, or until you learn about the problem. If the person who was hurt was a minor at the time, the statute of limitations may not start until he or she turns 18 or 21. There may also be special rules for mentally incapacitated people. If you’re not sure what rules apply in your case, you should talk to a medical malpractice lawyer for help.

Even if you have a generous statute of limitations, it’s best to talk to a medical malpractice lawyer as soon as you decide you’re interested in filing a lawsuit. The statute of limitations could be shorter than you think, but more importantly, time can erase crucial evidence. The longer you wait, the harder it is to remember facts, find important documents or locate people who could be witnesses.

 

PAYMENT

Most medical malpractice lawyers take contingency fees, rather than conventional hourly fees. A contingency fee is due after the case is through, if and only if you win your case. If you lose, the lawyer gets nothing at all. If you win, he or she will take the contingency fee as a percentage of your winnings. You will agree on that percentage before you hire the attorney; generally, you can expect it to be between 15% and 40% of your winnings.

Medical malpractice lawyers use contingency fees because they allow people who aren’t rich -- or who are suffering financially because of an injury -- to pursue a claim. In this way, they can help everyone, not just those who are wealthy enough to afford hourly legal fees. For the same reasons, medical malpractice lawyers almost always offer free consultations to potential clients.