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Medical professionals have an obligation to look after the health and safety of their patients and adhere to reasonable standards of care. Unfortunately, when they fail to abide by these standards, patients can face serious injury or death.
There are many different factors that go into determining the likelihood of whether a medical malpractice suit will be successful. Seeking the counsel of a good medical malpractice lawyer can protect your rights and help you understand the life cycle of a medical claim and the options that may be available to you.
What Is Medical Malpractice?
Medical malpractice occurs when a physician, hospital or other health care professional causes injury or harm to a patient due to a negligent act or omission. Malpractice can occur at any point during the diagnosis or treatment of a disease as well as during follow-up care and can have a life-changing impact on injured patients and their families.
What Constitutes Medical Malpractice?
Medical malpractice cases are complex and handling one effectively requires the knowledge and expertise of a personal injury attorney who understands all of the factors involved in proving a medical malpractice claim. For an injury to be considered medical malpractice under the law, a claim must include the following elements:
- The existence of a doctor-patient relationship
- In order to successfully prove medical malpractice, a plaintiff first has to show that there was a doctor-patient relationship between the two parties. In layman’s terms, this means that you must demonstrate that you hired the doctor and the doctor agreed to treat you.
- A breach of duty of care by a hospital, physician or other health care professional
- Being unhappy with treatment or its results doesn’t automatically mean a health care professional is liable for medical malpractice. To prove a malpractice suit, you must show that a medical professional caused you harm or injury in a way that a reasonably competent doctor under the same circumstances would not have.
- In medical malpractice cases, most states require a plaintiff to provide testimony from a medical expert who can explain the appropriate medical standard of care and demonstrate how a negligent health care provider deviated from that standard.
- An injury caused by the healthcare provider’s negligence
- In a medical malpractice case, you must show that it is “more likely than not” that a medical professional’s negligence or incompetence directly caused the injury, and this can be tricky. Many patients who are victims of negligence are already injured or ill, which raises the question of whether a health care provider’s actions (or inaction) actually caused harm to the patient. For example, if someone dies following treatment for prostate cancer, it can be tough to prove that a doctor’s negligence led to the patient’s death rather than the cancer. If you believe you’ve been injured due to negligence, a medical malpractice attorney can evaluate your case and determine whether it is likely that your doctor’s negligence caused your injury and advise you of whether you have a viable claim.
- Damages incurred by the injury
- Even if a physician or health care facility did not adhere to the acceptable standards in their field, a patient cannot sue for malpractice unless they suffered injury or harm. Medical malpractice claims are very costly to litigate, so for a case to be viable, significant damages must have resulted from an injury caused by negligence. In cases involving minimal damages, the cost of litigation may be greater than the possible recovery. Some damages that are often pursued in medical malpractice cases include additional medical bills, loss of income and earning capacity, pain and suffering, mental anguish and disability.
5 Most Common Claims for Medical Malpractice
There are countless scenarios in which medical negligence may lead to a malpractice suit. Some of the most common are listed below:
- Failure to diagnose or misdiagnosis
- When a physician fails to properly diagnose a condition that a competent doctor would have and it results in incorrect treatment or no treatment at all, they may be liable for medical malpractice. Some common misdiagnoses include cancer, heart attack, stroke and Lyme disease. However, when conditions present in unusual ways that aren’t consistent with common symptoms, a medical professional may not be considered negligent.
- Surgical errors
- These types of medical malpractice claims can involve everything from nerve damage, unnecessary surgery, performing the wrong surgery and surgical instruments left inside the body to anesthesia errors and post-operative infection.
- Failure to treat
- When a condition is correctly diagnosed but a health care professional fails to treat it in accordance with an acceptable standard of care for that condition, they may be liable for malpractice. Lack of follow-up care or prematurely discharging a patient from a hospital can cause an illness or conditions to worsen, leading to serious injury.
- Childbirth errors
- Birth injury cases are all too common and can result in serious, lifelong repercussions for both mother and child. Common types of childbirth error include failure to identify maternal conditions or potential complications, failure to monitor maternal and fetal health, labor induction errors, medication errors, C-section errors, oxygen deprivation and physical trauma caused by forceps.
- Medication errors
- When a physician or another medical professional prescribes or dispenses the wrong medication or dosage, it can have fatal consequences. Mislabeling medications and other pharmacy errors can also be factors in these types of cases. Depending on the circumstances, a physician, nurse, hospital, pharmacy, or drug manufacturer may be liable for any injury or harm caused by a medication error.
In some cases, medical malpractice claims can involve hospital administrators and insurance companies as well. If an administrative error or an issue with your medical insurance results in a delay or interruption of treatment, you may be entitled to recover compensation if you’ve been harmed or injured.
What Is the Time Frame to File a Medical Malpractice Suit?
In Texas, the statute of limitations for filing a medical malpractice claim is two years from the date of injury. If harm occurred as part of an ongoing course of treatment, the two-year limit doesn’t start running until the course of treatment is finished. There are a few exceptions to the two-year statute of limitations, such as when the injured party is a minor, the negligent party is a government employee or the injury is not discovered until the two-year deadline has run out. This area of the law is complex, so it’s vital to act quickly and consult an experienced medical malpractice attorney as soon as you discover an injury.
What Is Required to File a Medical Malpractice Lawsuit in Texas?
Before a patient can file a medical malpractice suit in Texas, they must provide written notice of the claim to the health care provider or providers to be named in the lawsuit. This notice must be sent via certified mail with a return receipt requested at least 60 days before the case is filed. The patient must also provide a signed authorization form for release of protected health information so the provider can start an investigation of the patient’s claims.
In addition to providing notice, an injured patient must submit an affidavit of merit (also called an expert report) with the original complaint. This affidavit must include the following information:
- A licensed, qualified expert’s opinion regarding the applicable standard of care
- How the defendant failed to meet that standard
- How the defendant’s failure caused injury or harm to the plaintiff
The purpose of an affidavit of merit is to prevent plaintiffs from filing frivolous lawsuits. It must include the signature of a licensed professional who is actively practicing in the field in question. If it is not filed within 120 days of the lawsuit’s filing, the court may dismiss the case. Failure to file an affidavit of merit can also affect how the statute of limitations deadlines may apply to your case. A good medical malpractice attorney will know exactly what needs to be included in an affidavit of merit and ensure that it is filed in a timely manner.
Why Is It Hard to Prove Medical Malpractice?
Medical malpractice is one of the most challenging areas of personal injury law. The evidence presented in these cases is incredibly complex, which can make it tough for jury members without a medical background to understand. Even seasoned medical malpractice lawyers know that putting together and proving a medical malpractice case often takes a staggering amount of time, resources and effort.
Typically, the most difficult part of proving medical malpractice is demonstrating causation. Creating a link between a doctor’s or hospital’s negligence and an injury is challenging. The defendant’s attorneys may argue that many other factors could have contributed to a plaintiff’s condition, including previous injuries, lifestyle choices and genetics.
For example, consider a physician who erroneously tells a patient that he is cancer-free when he is not. When the patient is properly diagnosed by another doctor months later, the cancer has spread and has become untreatable. The sick patient’s argument may be that their condition would have been treatable had the first doctor correctly diagnosed the cancer and that they would have been able to seek treatment right away to stop it from spreading. However, the defense could argue that cancer is unpredictable, so there is no way to know whether the patient’s outcome would have been different. Although the vast majority of medical malpractice claims are settled out of court, this kind of argument can plant the seeds of doubt in a jury’s mind and may lead to a verdict in favor of the defendant.
What Percentage of a Medical Malpractice Settlement Do Attorneys Usually Receive?
Most medical malpractice lawyers represent clients on contingency, which means that their fee is paid as a percentage of the settlement or award in the case. If the client does not receive a settlement or award, the attorney is not paid a fee. The most common contingency fee is 33% of the total award, but it varies depending on the circumstances. For example, if a case is settled before trial, a lawyer may get 33%, but if it goes to court, the fee may be 40% of the eventual award. The cost of medical malpractice litigation is usually considerable, and includes court filing fees, expert medical witness fees, charges for obtaining medical records and other administrative expenses. Typically, any unpaid medical bills come out of a settlement as well, which can affect the final amount an injured victim receives.
How to Win a Medical Malpractice Suit
Your best bet for winning a medical malpractice suit is to hire a knowledgeable personal injury attorney who has a track record of success in recovering maximum compensation for victims of medical malpractice. Attempting to prove medical malpractice or negotiating a settlement on your own is a losing proposition. Medical providers and health care systems invest billions of dollars to defend themselves from malpractice claims. Their insurers have teams of experienced insurance adjusters, attorneys and other professionals whose main focus is to ensure medical malpractice claims are denied or minimized. When your health and quality of life are on the line, it’s unwise to go it alone.
If you are considering filing a claim, contact a lawyer and let them handle all interactions with insurance adjusters and other insurance company representatives. Do not sign any documents, speak with insurance adjusters, or give anyone permission to release any medical records. Your lawyer should handle all communications to ensure your rights are protected and to build a successful case. A skilled medical malpractice lawyer will aggressively negotiate a fair settlement before taking your case to trial. However, if a reasonable agreement cannot be reached, your lawyer may recommend taking it to trial to maximize the compensation you could potentially receive. An experienced local attorney who is well-versed in Texas personal injury law can fight for maximum compensation and help you hold responsible parties accountable for their negligence.
Contact a Medical Malpractice Attorney
The team at Leinart law has helped thousands of injured victims recover maximum compensation for their damages. The medical malpractice lawyers at our Dallas personal injury law firm serve clients throughout Northern Texas. We are dedicated to helping make things right for those who have been injured due to no fault of their own. Send us an email or call us today at 469-232-3328 to schedule a free consultation.