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All too frequently, doctors and medical providers hurt the very patients they are trying to help. However, not all unfavorable medical outcomes are necessarily malpractice. It is often difficult for patients and family members to understand this. When an unfavorable outcome devastates the life of a patient and/or loved ones, it is only human to want to find someone to blame. At certain times, everything that could have been done was done correctly, but the result was disastrous. Though this can be painful and unfortunate, it is not medical malpractice. However, when the patient is injured as a result of a negligent act, the victim deserves compensation. This article will help you understand what constitutes a credible medical malpractice claim and the litigation process that will ensue if you file a claim.
Standard of Care – The key element in determining whether there was negligence lies in a concept known as the standard of care. The standard of care for a medical procedure or treatment is that degree of care or skill ordinarily employed by the medical profession generally under similar conditions and like circumstances. This is the standard that is generally accepted by the medical profession as proper treatment for a given medical condition in similar situations. If the doctor or hospital treats the patient in a way that does not conform to the standard of care, the treatment may be considered substandard or negligent.
In considering whether to bring a malpractice claim against medical providers, the standard of care is the first element that must be examined. If the doctors were doing everything that is prescribed by the standard of care and the patient suffered disastrous consequences, there is no claim. Even if care was determined to be substandard, there are other hurdles that must be cleared before a viable claim can be pursued.
Causation – The second element for consideration is causation. The question to be answered is whether the substandard act directly or indirectly caused the unfavorable outcome. If the outcome would have been the same even with the administration of care within the standard, there is no claim. Thus, to have a viable claim, we must be able to prove that the actions of the medical providers were both substandard and caused an unfavorable outcome that would not have occurred in the absence of negligence.
Disability – Even if both those considerations are met, the viability of the claim rests on the nature and severity of the disability. Medical claims are extremely expensive to pursue, sometimes running over one hundred thousand dollars. This expense includes the cost of medical experts, deposition costs and trial costs in addition to the attorney’s fee. If there is no lasting disability resulting from the negligence, or if the disability is small, the award may not be large enough to warrant the expense of pursuing the case.
Qualifying the Claim – When you submit a potential claim to a lawyer for consideration, the lawyer will evaluate the medical records to see if there was any violation of the standard of care. Often the lawyer will have the records reviewed by medical professionals to spot inconsistencies and possible negligent acts. If it is determined that there was negligence and the negligence caused the disability, the case will then be evaluated for viability, i.e., is the potential for recovery sufficient to pay all the expenses and attorney fees and have money left over for the client? If the lawyer believes that potential to be low, it is likely that the case will be declined.
The Fee Agreement – If the lawyer decides that the case is viable, you will be asked to sign a contract specifying how the fee and expenses will be handled. Generally, medical malpractice cases are handled on a contingency fee basis. This means that the lawyer will get a percentage of the total recovery. Thus, if there is no recovery, there is no fee owed to the attorney.
A second part of the fee agreement is how case expenses will be handled. Case expenses are generally very high in medical malpractice cases. Expert testimony costs thousands of dollars per expert and depositions can cost up to a thousand dollars each or more for the cost of the court reporter, a videographer and the transcript. These expenses are ultimately the responsibility of the client. Generally, the lawyer will advance the money for the expenses while the case is in progress, and at the conclusion of the case the client will repay that expense money plus the lawyer’s fee from the recovery.
The Litigation Process – Once the case has been accepted by the attorney, a complaint must be filed in Civil Court. In Georgia, the plaintiff has two years from the time of alleged malpractice to file the complaint. This is called the statute of limitations. If the claim is more than two years old it cannot be placed before the court. If the case is found to be more than two years old after it is filed, it will be dismissed. In Georgia , the plaintiff must also provide the court with the affidavit of a medical expert that attests to at least one violation of the standard of care for each of the defendants named in the lawsuit.
After the lawsuit has been filed, the process of discovery begins. This is the gathering of evidence for trial. The plaintiff has the right to see all the medical records and depose all the parties that might have knowledge of the case. The defense has the right to receive any relevant information from the plaintiff surrounding the claim as well as any information which might impact his/her credibility as a witness. They will depose the plaintiff as well as all the plaintiff’s experts and any other fact witnesses, such as family or friends, who might have knowledge of the case.
This process if very time consuming, often taking over a year to complete. In addition to discovery, there will be motions by both sides on technical points of law that will require hearings by the judge. Motions slow down the progress of the case because we must wait until the judge has time on the calendar to hear and rule on the motions.
Once discovery has concluded and there are no further motions pending, the case is ready for trial. At this point the court puts it on a trial calendar, which can often take months due to the large caseloads in the courts. If settlement is a viable option to all parties, it is generally explored during the period between the end of discovery and the trial.
Increasingly, the settlement process will involve the use of a mediator and a formal mediation session. The mediator will attempt to bring the sides together and get them to agree on an amount of compensation for the plaintiff’s claim. If the mediation fails, the parties still may try to settle the case; however, the case will very likely go to trial.
The litigation process is very time consuming and is one of the most frustrating parts of medical malpractice cases for the client. These cases seldom conclude in less than two years from the filing of the case and often take longer. Including the time between the event and the filing of the lawsuit, the total timeframe can be four years or more.
Unless you are a medical professional, it is very difficult for you to determine if there was medical negligence because you may not have knowledge of the correct medical procedures comprising the standard of care and the laws governing medical malpractice. This is why it is important to consult with an attorney as soon as possible after you or a family member suffers an unfavorable medical outcome.
If it has been less than two years since the alleged incident, you should have it evaluated by an attorney with a proven record in medical malpractice. Medical malpractice is extremely technical and not all attorneys are qualified to handle your case. Be sure to examine their experience in medical negligence cases before submitting the case for consideration.
If one attorney turns the case down, you should submit it to others before giving up. Sometimes one attorney will see possibilities that another will miss. Often it comes down to the lawyer’s willingness to take a risk on a case. As a rule, you should have the case reviewed by at least three attorneys before concluding that there is no case.
We hope this article has helped you better understand the Medical Malpractice litigation process and we thank you for visiting our website.