Before you file a medical malpractice lawsuit, first understand that you are in for an intensive process. Medical malpractice claims tend to be very complex, and navigating legal issues, expert witnesses, and causation can be difficult. Even seasoned medical malpractice attorneys consider medical malpractice cases a formidable challenge.
Medical Malpractice: Understanding the “Medical Standard of Care”
For a medical malpractice claim to hold any water, the medical practitioner must have operated below an accepted medical standard of care, and as attorney Russell J. Berkowitz often emphasizes, the doctor’s sub-standard treatment must result in harm and lead to certain categories of damages. That means if the healthcare professional’s mistake does not cause the patient any harm, there is no malpractice.
Attorney Shad Withers defined the medical standard of care as “the care type and level that an ordinary, prudent health care professional, with the same experience and training, would provide under similar circumstances in the same community.”
In most medical malpractice cases, you need an expert witness who must be trained and experienced in the same field as the defendant’s professional. The expert witness will establish the standard of care and testify to how the defendant’s treatment fell below said standard. Also, they will testify precisely how the healthcare professional’s negligence harmed the patient.
Special Requirements in Medical Malpractice Cases: “Affidavit of Merit”
Each state has its own rules and requirements for filing a medical malpractice claim. In some states, the plaintiff must file an affidavit signed by an expert under oath when filing the lawsuit. Also, depending on the state, the affidavit must state the particular standard of care in that treatment case and how it was breached.
In other states, the affidavit may only state that the expert has reviewed the case and believes it has merit. It is important to work with a medical malpractice attorney; they will help you know whether your case needs an affidavit of merit. They can also help you understand what the affidavit must cover for the court to accept your case.
Different Medical Malpractice Scenarios
As you consider filing a medical malpractice claim, you must first understand the scenario that makes for a viable claim. Below are some common scenarios that can give rise to a viable claim of medical malpractice:
- A healthcare professional makes a mistake with the administration of anesthesia a patient needs.
- Prescribing or administering medications previously determined to be fatal allergens.
- Mistakes or errors in monitoring an unborn child’s heartbeat during labor.
- Inability to diagnose an illness or medical condition during an examination.
- Failing to account for all the medical instruments and sponges after a surgical procedure.
- Failing to turn incapacitated patients, thus leading to the formation of bed sores.
- Improperly lifting a patient or transporting techniques, thus injuring a patient.
Statutes of Limitations in Medical Malpractice Claims
Before filing a medical malpractice lawsuit, be aware of the statute of limitations, which sets the time limit for filing a claim. This timeframe varies by state, often ranging from one to six years, and may start from the date of the malpractice or when the injury is discovered (the “discovery rule”).
Missing this deadline can result in your case being dismissed, regardless of its strength. Consulting a medical malpractice attorney promptly ensures your claim is filed within the required timeframe.
Conclusion
Taking on a healthcare professional in a medical malpractice claim is not something you want to do alone. First, it is a foreign territory that even experienced attorneys find dangerous and tough. Also, there are high powers at play, and you need the hands of someone who understands how these things work to guide you.
Filing a successful malpractice lawsuit takes more than simply being unsatisfied with a certain treatment plan or its results. A lawyer who specializes in handling medical malpractice cases can be a great asset. They can help you understand the rules and procedures peculiar to your case–or even if you have a case at all.
