Medical lawyers tend to warn prospective clients that medical lawsuits are extremely tough to win. Medical attorneys need to consider three important factors before he decides if your doctor malpractice case is worth pursuing. These are: liability, damages, and who's going to pay the damages.
How do medical attorneys determine if someone is "liable" for medical negligence or doctor malpractice? The first thing a medical lawyer would do is conduct some investigation to determine whether a health care provider or a doctor was negligent, and if so, whether that negligence caused the injury.
Note: Just because the procedure or treatment turned out poorly does not necessarily mean that a doctor or health care provider was negligent.
There are three key factors that determine negligence:
- The accepted standard of care;
- whether that standard was followed; and
- if the standard of care was not followed, whether the failure to follow that standard caused the injury.
Medical lawyers will not stop at proving only the doctor's negligence, but will probe further in order to know whether or not the negligence caused or worsened the patient's condition. For instance, a case that involves misdiagnosis of cancer that caused a patient's death, the doctor may successfully defend himself by proving that the illness was terminal and that nothing could have been done anyway.
Once your medical attorney has established liability you are entitled to damages, which can include medical compensation, lost wages as well as pain and suffering. The damages may cover losses you've already suffered as well as future medical bills and lost wages.
Damages vary widely depending on each person's situation - even two people of the same age who both lose their right index fingers through botched surgical procedures may see very different outcomes. The amount of damages they will receive depends on how the injury affects their earning potential and quality of life. So a professional guitarist may get more for a missing finger than a lawyer and confirmed couch potato whose life won't be as disrupted.
A good medical attorney who takes a look at the witnesses, the individual and the medical circumstances can estimate the potential damage awards.
Damages must be substantial for medical lawyers to take on a case, because of the huge expenses involved - it's not unusual for a medical attorney to dole out $30,000 to $50,000 before the case is resolved.
Many medical lawsuits require two or three doctors to serve as expert witnesses to support the injured patient's case - doctors who may charge upwards of $1,500 an hour to review records or answer a medical attorneys' questions.
Doctor malpractice claims tend to be a fight to the death; they're settled less often than most other cases, which means more time and expense.
Even if you decide you can establish liability, the person or organization you're suing must have the resources to pay damages for your case to be worthwhile. Usually, this isn't an issue in the case of a doctor, hospital or clinic. The vast majority of health care providers are insured and the insurance company steps in to cover the loss in the event of a medical malpractice claim.
Keep in mind that you have a deadline to file your claim. The statute of limitations varies by state but is typically about two years. That time often starts running at the moment of the negligent act, but other factors may come into play, such as when you learned of the negligence and when you stopped receiving treatment.
