Medical malpractice lawsuits can be extremely complex. Of course, navigating any legal issue is difficult. But when doctors, nurses or hospitals are involved, negotiating the requirements of state law can be all but impossible for patients working on their own.
You need an attorney, an experienced attorney. When you sue a medical professional or healthcare system, you won’t be going up against an individual. Once a malpractice claim is filed, the defendant’s insurance company goes to work, bringing in a team of defense attorneys and medical experts – all to disprove your allegations. We think you should have an equally strong team on your side.
Medical Malpractice: A Legal Definition
Over the last eight years, more than 250,000 Americans died because of medical errors. That shocking statistic comes from a new study out of Johns Hopkins University – and it means that medical mistakes are now the third leading cause of death in the US. As of 2016, only heart disease and cancer are more deadly than “medical care gone awry,” according to lead researcher Martin Makary, Professor of Surgery at Johns Hopkins.
Not every patient who has been injured or killed by a medical mistake is the victim of malpractice. In legal terms, medical malpractice occurs when a healthcare professional’s actions (or failures to act) fall below an accepted standard of care in the medical community, placing patients in harm’s way.
Malpractice lawsuits are won or lost on the basis of five essential elements:
- doctor-patient relationship
- duty or standard of care – an accepted medical standard that should have been followed in diagnosing or treating the patient.
- breach of duty – for negligence to have occurred, the doctor must have violated their duty to the patient, deviating from the established standard of care.
- causal link – negligence isn’t enough; patients have to prove a causal relationship between the healthcare professional’s breach of duty and their own injuries.
- damages – the injury caused by malpractice must have resulted in either economic damages (medical expenses, lost wages) or non-economic damages (physical pain, emotional suffering)
Proving these five elements is at the core of every medical malpractice lawsuit.
Medical Standard Of Care
Patients have a legal right to expect that medical care will be provided properly, according to well-established standards that guide physicians, nurses and diagnostic technicians. While these standards can change along with new developments in medical research, and new innovations in medical technology, physicians have a legal duty to stay current with these changes.
Obviously, the standard of care will change depending on patient characteristics and the medical condition in question. That’s why medical malpractice lawsuits tend to be highly specific. But in every case, the basic question is:
“What type of care, and how much attention, would a reasonable, similarly-trained medical professional have provided to the patient?”
This question is almost always answered by expert medical witnesses, who work closely with the patient’s attorney to develop an understanding of the appropriate standard of care to highlight for the case.
Proving Medical Negligence
After defining the applicable standard of care, your attorney and medical experts will work to establish how that standard was violated in your own case. Then, your team will turn to demonstrating how the doctor’s breach of duty caused your injuries, or the death of a loved one.
Choosing The Right Medical Malpractice Lawyer
There’s no simple, straight-forward path to securing compensation in a malpractice lawsuit. Even when all the evidence and facts are on your side, the defendant’s attorneys will be prepared to fight every step of the way. This isn’t meant to scare you, or discourage you from pursuing a case. It’s just a fact. In all likelihood, you’ll need an experienced attorney on your side to win, one who can:
- investigate the alleged malpractice and determine liability
- meet filing deadlines
- consult expert medical witnesses
- identify viable legal strategies
- review and interpret medical records
- negotiate with the defendant’s insurance company and defense attorneys
But there are hundreds of medical malpractice lawyers here in New York. How do you choose the right one?
Comfort Level & Personality
Do you feel comfortable opening up about your situation with the attorney? Like the doctor-patient relationship, attorney-client relationships should be built on trust and compassion. Does the lawyer seem sincerely concerned about helping you find a way forward?
Experience and previous case results are important, of course, but in some fundamental sense, you want to like your attorney. You’ll be working with them a lot.
General experience handling medical malpractice lawsuits isn’t enough. Every state has its own laws around malpractice, so you’ll want to find an attorney licensed to practice in the state where medical malpractice occurred.
Cost & Financial Considerations
Filing a lawsuit should be financially viable. Medical malpractice lawsuits in particular are extremely complex. Insurance companies are rarely willing to settle these cases quickly. Instead, they fight – often vigorously – and malpractice claims can take a long time to resolve.
If medical malpractice attorneys charged hourly fees, few cases would ever be filed. After all, victims of malpractice are already at a disadvantage financially. Many are unable to work, but have incredibly high medical expenses to pay off.
That’s why many malpractice lawyers – including the attorneys at Banville Law – work on a contingency-fee basis. Instead of paying up-front for legal counsel, our clients pay us a percentage of any settlement or jury award that is secured. No settlement? You pay us nothing. In essence, we’ve shifted the burden of paying to pursue a lawsuit onto our own firm.