What Do I Need to Know Before Pursuing a Medical Malpractice Lawsuit?December 21, 2020
Doctors, surgeons, nurses, and other health care professionals are well-educated, highly trained individuals who are dedicated to providing the best care for their patients. However, they are also human and capable of making mistakes. When a medical mistake jeopardizes the health of a patient, that patient may be eligible for financial compensation by pursuing a medical malpractice lawsuit. There are a number of situations that can cause harm to a patient, some of which are the result of unforeseen medical complications, and others that are due to negligence or malpractice. For a patient to have a valid claim, he or she must be able to prove that the medical provider was negligent. A skilled medical malpractice lawyer will review the details of the case and determine whether negligence was involved.
What are the Key Requirements for a Medical Malpractice Claim?
To prove that the injured or illness was the result of medical malpractice, the patient must be able to show the following:
- A doctor-patient relationship existed. The patient must be able to prove that he or she hired the doctor, and the doctor agreed to treat the patient. If the doctor began treatment, it is generally easy to prove that there was a doctor-patient relationship.
- The health care provider was negligent. The patient must be able to show that the health care provider was negligent, and that the health professional breached the medical standard of care, which is the level of care that another skilled health care professional with a similar background would have provided under similar circumstances. This means that the patient may not sue a doctor for malpractice simply because he or she was unhappy with the treatment or the results. The patient must be able to show that the doctor caused harm in a way that another skilled doctor would not have under the same conditions.
- The negligence caused the injury. The patient must be able to prove that the doctor’s negligence directly caused the injury. In most cases, the patient will be required to hire a medical expert to testify in court. The medical expert will offer his or her professional opinion about whether the doctor followed the standard of care, and if the failure to follow the standard of care was responsible for the patient’s injury.
- The injury led to damages. The patient may not sue a doctor for medical malpractice if he or she did not suffer any harm, including the following:
– Physical pain
– Emotional anguish
– Lost wages
– Lost future earning capacity
– Medical bills
What are the Most Common Types of Medical Malpractice?
There are a number of actions that can lead to a medical malpractice claim, from operating on the wrong body part, to failing to diagnose a serious illness. The majority of malpractice cases fall into the following categories:
- Failure to diagnose. If another equally skilled doctor would have diagnosed the illness or made a different diagnosis, resulting in a better outcome for the patient, there may be grounds for a viable malpractice case.
- Improper treatment. If a doctor, nurse, or any other health care provider treats a patient in a way that no other skilled health care professional would, the patient may have grounds for a medical malpractice lawsuit. This also applies if the doctor proceeds with the appropriate treatment but administers it incorrectly or incompetently.
- Failure to warn patients of known health risks. Physicians have a responsibility to discuss the possible risks associated with a procedure, a medication, or any other treatment option. This is known as the duty of informed consent. If the health care provider fails to discuss these risks with the patient and the patient is injured as a result, the doctor may be liable for medical malpractice.
What Steps Should Patients Take to File a Malpractice Claim?
One of the first things a patient must do is to contact the health care provider prior to filing the claim. This will give the patient the opportunity to discuss the issue with the doctor, ask questions about what went wrong, and decide whether he or she intends to proceed with the lawsuit. If the issue cannot be resolved by talking to the health care provider, the patient may wish to contact the licensing board, who can issue a warning to the health care practitioner and may even offer guidance on what to do next. If the patient plans to proceed with the claims process, he or she must file the claim within the statute of limitations, which is five years from the date of the injury, or within three years of the discovery of the injury, whichever comes first. A failure to meet this deadline will likely result in the claim being denied.
Certificate of Merit
Maryland requires patients to file a certificate of merit to determine whether the injuries were a direct result of the health care provider’s negligence. To do this, a patient will need to contact a medical expert, which is usually another similarly qualified physician. The expert will review the patient’s medical records and determine whether the health care provider breached the standard of care. If the expert believes that negligence was involved, he or she will certify that the health care provider named in the lawsuit deviated from the accepted medical practices, which caused the injuries. The medical malpractice lawyer representing the patient will file the certificate of merit.
Accepting a Settlement Offer
The vast majority of medical malpractice cases end in negotiated settlements. In fact, according to the U.S. Bureau of Justice Statistics, approximately 93 percent of all medical malpractice cases are resolved before going to trial, which means only a mere seven percent end in a jury verdict. Settling out of court can be beneficial to both parties, as court cases are usually much more expensive and time consuming. Before a patient considers accepting a settlement offer, it is highly recommended that he or she discuss the details of the offer with a skilled medical malpractice lawyer. During this meeting, the following points should be thoroughly addressed:
- Strength of the case
– Settlement outcomes in similar cases
– The likelihood reaching a successful outcome if the case goes to trial
– Strengths and weaknesses in the evidence from the plaintiff and defendant
- Money and damages
– How much the medical malpractice lawyer believes the case with worth in dollar amounts, and whether the lawyer thinks the patient will receive damages at trial
– The minimum dollar amount the patient should be willing to accept
– The defendant’s policy limits
– Other financial resources to which the defendant has access
- Specifics related to the settlement process
– What percentage of the settlement will go toward legal fees and expenses? Most medical malpractice cases are handled on a contingency basis, which means that the client does not pay attorney fees unless the case has a successful outcome.
– Will the settlement payments affect income taxes? The settlement payments are considered taxable income and must be reported on the patient’s tax returns; however, the percentage will depend on the specific circumstances of the case.
– Reaching a settlement that both parties can accept means that both sides must be willing to give and take. The patient must consider what he or she is willing to accept to achieve a successful outcome.
– It is recommended that the parties resolve the less complicated issues first and continue negotiating the more complex issues.
– Discuss whether there are other remedies, other than financial, that the patient is willing to accept.
- General concerns to consider
– Civil court trials are open to the public, which means that either side may have to deal with unfavorable publicity from the media.
– The discovery process may reveal personal, private information and make it public. This can include the disclosure of business information or trade secrets.
– The medical malpractice lawyer defending the patient may have experience negotiating with the opposing lawyer, which means he or she will be able to anticipate the opposing legal team’s tactics.
– The patient and the lawyer must consider the possibility that the opposing side may be unwilling to negotiate.
Once a successful settlement has been reached and the legal fees have been paid, there are two ways that the patient can collect the money, including the following:
- Structured payment. This option is often chosen if the injury requires long-term care, including birth injuries. Structured payments ensure that there will be enough funds to cover the long-term or permanent care needed.
- Lump-sum payment. With this option, the patient receives the full settlement amount in one payment. The medical malpractice lawyer will negotiate on behalf of his or her client to ensure that the lump-sum offer is fair.
Baltimore Medical Malpractice Lawyers at LeViness, Tolzman & Hamilton Assist Clients with Malpractice Claims
If you suffered an injury while under the care of a physician or another health care provider, do not hesitate to contact the Baltimore medical malpractice lawyers at LeViness, Tolzman & Hamilton. We will thoroughly review the details of your case and determine whether negligence was involved. Our dedicated legal team will walk you through every step of the claims process and negotiate the financial settlement you deserve for your injuries. To schedule a free consultation, call us today at 800-547-4LAW (4529) or contact us online.
Our offices are conveniently located in Baltimore, Columbia, Glen Burnie, and Prince George’s County, where we represent victims throughout Maryland, including those in Anne Arundel County, Carroll County, Harford County, Howard County, Montgomery County, Prince George’s County, Queen Anne’s County, Maryland’s Western Counties, Southern Maryland and the Eastern Shore, as well as the communities of Catonsville, Essex, Halethorpe, Middle River, Rosedale, Gwynn Oak, Brooklandville, Dundalk, Pikesville, Parkville, Nottingham, Windsor Mill, Lutherville, Timonium, Sparrows Point, Ridgewood, and Elkridge.