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Frequently Asked Questions
What is medical malpractice?
Medical malpractice [sometimes also called "professional negligence"] is the name given to negligence cases in which there is a personal injury resulting from negligence in health care. Medical malpractice cases arise when a health care provider fails to give the kind of care that a practitioner in the same field or specialty area would have given in a particular case and there is an injury because of this failure. The health care provider could be a doctor, a nurse, an aide, a psychologist, a dentist, a chiropractor, a midwife or any other person who is offering care to a patient.
What kinds of cases are medical malpractice cases?
Many different types of cases are medical malpractice cases. One example is birth related claims, in which problems with pregnancy or labor and delivery are not recognized or treated in an appropriate way. There may be two claims, one on behalf of an injured infant, and one on behalf of the mother, since both are patients. While a child has until age 10 to bring a lawsuit, the mother usually has only two years to bring her claim for physical or emotional injuries relating to the birth of her child. Both parents have a claim for the medical bills of their child related to negligence and different time periods may apply to those claims as the bills come in.
Another frequent type of claim is with respect to diagnosis and treatment of cancer, such as colon, breast, skin or prostate cancer. If symptoms are not recognized in time, there is no claim for the precancerous condition or possibly the cancer itself, but there may be a claim made to the extent a delay in diagnosis or treatment made the patient's outcome worse. If there is no colon cancer screening, for example, in a patient in her 50's or 60's who goes in for regular medical check-ups, there could be a claim for colon cancer which could have been treated at the stage of benign polyps without the need for surgery, much less for chemotherapy or radiation therapy.. In such a claim, the attorney may pursue a medical malpractice claim with respect to all of the extra treatment that was needed and the extent to which the patient's outcome worsened because of the delay. In all such cases in addition to the bills and any lost earnings or lost earning capacity, the patient has a claim for the disability, disfigurement, pain, suffering and inconvenience associated with the worsening of the condition caused by the delay.
Another type of malpractice involves emergency room visits in which patients are not given prompt or appropriate treatment. Stroke patients have what is called the "golden hour" in which certain types of strokes can be successfully treated. If the patient sits in the waiting room throughout this time or is seen but the symptoms not recognized, the opportunity to treat the stroke and minimize long term problems could be lost. There could be a medical malpractice claim for the changed outcome in this situation. Other emergency room claims involve patients who are discharged with chest pain and return within hours with a massive heart attack and patients who have other dangerous conditions which are not recognized and they are sent home without the treatment they need to get better.
Many other types of medical malpractice can also give rise to claims that should be pursued. These include unrecognized or under treated infections, surgical errors, hospital or nursing home falls, unrecognized side effects from use of medications, unrecognized complications from surgeries such as blood clots or an unprofessional personal or romantic relationship between a mental health therapist and patient.
At times, there are medical malpractice cases for obvious errors, such as leaving a sponge in a patient at the end of an operation, operating at the wrong level of the spine because the surgeon mis-counted the vertebrae or problems arising from giving the wrong medication to patients. The experienced attorney will line up experts in these cases to assess the damage, just as such experts are needed for any medical malpractice case.
What is needed to investigate a claim of possible medical malpractice?
All of these cases need to have the help not only of attorneys who are experienced in taking on medical malpractice claims but also the help of experienced medical experts. The attorney will obtain a history from the client and ask the client to sign authorization forms, which permit the production of otherwise confidential medical records to the attorney for review. For a minor or incompetent person, a parent, someone who is next of kin or someone with proper authorization under a power or attorney or court order may sign such a request. The attorney's office will organize the records upon receipt and see whether films or additional documents are needed to form a complete record.
The next step will be to find a qualified expert to review these records. In Virginia, in order to begin a lawsuit there needs to be a signed document from a professional who is in the same or a substantially related field as the potential defendant, who verifies that he or she has reviewed the patient's medical records and offers the opinion that the care in the given case was negligent and that the patient suffered an injury as a result. This written certification is needed before a medical malpractice claim can be served upon any Virginia defendant. Attorneys who take on medical malpractice claims regularly work with such experts and can locate a neutral professional to do a review of any new case that is being considered. Such experts generally work by the hour though some charge a flat fee as a retainer which covers their review and any initial consultations discussing their conclusions with the attorney.
What happens if the patient dies? Is there still a claim?
Medical malpractice cases are also, at times, wrongful death claims. In such cases, there is a claim made that the negligence caused the death of the patient. In Virginia, wrongful death claims are made on behalf of the survivors of the person who has died. The wrongful death statute, Section 8.01-50 et seq. of the Virginia Code, sets out the line of beneficiaries in such a case. If a person is survived by a spouse, the spouse is always a beneficiary of a wrongful death claim. If there are children, the children also are beneficiaries of the wrongful death claim. Others, including adult parents and extended family members may also have claims if they depended on the person who died for financial or other support. Wrongful death claims assess the amount of damages according to the actual loss of financial support, the cost of the medical bills of the final illness, funeral and burial expenses and such other damages as the grief, loss of advice, services and other damages suffered by the individual beneficiaries. Each case is different and each family's losses unique. Experienced attorneys are needed to be able to represent the family's interests in these difficult and often emotional cases.
Who can bring a wrongful death claim? By law in Virginia, such a claim must be filed by an executor of an estate if someone qualified as such under a Will. If there was no will or no one qualified, an adult family member or someone very close to and trusted by the immediate family must qualify as administrator of the estate in the Clerk's office of the Circuit Court typically where the person resided at the time of the death. Any lawsuit which is brought is then filed on behalf of the Executor or Administrator of the Estate.
If a person is severely injured by medical malpractice and lives with serious injuries for such a time before death, sometimes an attorney may advise pursuing what is called a "survival action" instead of a wrongful death suit. This action seeks damages for the dead person's pain and suffering prior to death rather than the grief and suffering of surviving family members. In either case, the expenses of the final illness and lost wages during the person's life-time can be claimed. In cases in which the patient died, an experienced attorney who does a number of medical malpractice cases will be best able to advise the family about what type of suit to pursue.
How long can I wait before pursuing a medical malpractice claim?
Different time periods apply to limit the time a particular claim may be brought. While in many cases, the statute of limitations is two years, it might be more or less than this amount of time in your case. Filing a claim after the statute of limitations has run will cause it to be dismissed, so it is important to talk to an attorney who does these cases regularly to determine how much time you have.
If the health care was provided at a state or federally owned agency or hospital, there may be a need for a Notice of Tort Claim to be filed with the proper persons within six or twelve months of the events. If a person continued treating for a period of time with the same provider for the same condition, there may be longer periods of time to file an action while there was continuing care. If the care was provided for a child, the child's time frame does not start to run until he or she turns eight years old. Waiting a long time will make it hard for any of the parties to remember the details of the events, however, so it is best to begin the process as soon as a problem is recognized and not to wait to obtain records, hire an attorney and look for experts.
How long will my case take to resolve?
If you do have a case, it may take as little as six months or up to several years to finally resolve. No case should resolve too quickly as you must be assured that the damages are firm to the extent this is possible. As an example, if an additional operation is needed because of negligence, you would want to wait, if possible, until after the operation and full recovery from it before settlement to make sure you knew the extent of the damages. You would not want to rush to settlement and find out later that you need much more care than anticipated or that the actual damages are larger than were first known.
In some cases in which the negligence and the resulting damages are clear, there might be a period as short as six months during which the records are obtained, experts consulted and negotiations undertaken. Most medical malpractice cases take much longer, however, and usually the parties must all be prepared to go to trial. Of the cases which settle prior to trial, most resolve fairly close in time to the trial dates, after all of the damages have been determined and both sides know what the experts are prepared to say. Trial schedules vary across Virginia and some parts of the Commonwealth have civil jury trials available within a year of filing suit while others are so busy that the parties must wait one and a half to two years for a trial date.
What should I do if I believe I have a case?
If you think you have a medical malpractice case, the single most important thing to do is to obtain a lawyer who has a lot of experience in the field of medical malpractice. The field is extremely technical and demands the attention of someone with experience dealing with expert witnesses, dealing with particular issues such as charitable and sovereign immunity, and the knowledge of how to put on such a case at trial. Keep a diary and take photographs to memorialize what is going on and make a list of the health care providers involved to make your own record and then get the help of an experienced professional. Do not hesitate to ask an attorney how many medical malpractice cases he or she has pursued, what percentage of time is spent doing medical malpractice cases and for how many years has this been the case. You need someone you can trust and someone who has the knowledge and experience to guide and advise you; you have only one chance to get compensation for what has happened to you or your family. Time is crucial, so do not wait to make a call; contact an experienced medical malpractice attorney now and protect your interests and those of your family while there is time to do so.
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