NOTE This article was ghostwritten by Brian Gregg for a client. It is not for publication.
A Complete Guide To Medical Negligence
What is medical negligence?
Medical negligence or malpractice is a subcategory of the broad spectrum of personal injury law. While there are special considerations for medical malpractice cases, they are still subject to the common law and statutory personal injury law.
Personal Injury Law
Personal injury cases are governed by the rules, precedents, and principles of tort law. A tort is an act or omission that causes injury or harm to another or another’s property. It is a civil (not criminal) wrong for which a victim seeks compensation
The basic elements that the injured party (plaintiff) must prove are liability and damages.
Venue
An action for personal injury tort is subject to state law in most cases. Generally, an action for personal injury is brought in the county court in the place where the personal injury occurred. The laws of the state where it occurred will govern.
Many critical aspects of personal injury law vary from state to state.
Liability
For a party to be liable for a tort they must have negligently or intentionally committed an act, or omitted an act they had a duty to perform, that was the proximate cause of the harm to the plaintiff.
This element can be complicated by any contributory negligence of the plaintiff. There may be multiple parties who share liability which must be proved by the plaintiff and which involves an allocation of damages among the defendants.
Damages
Awardable damages for personal injury are compensatory or punitive. Compensatory damages are either economic or non-economic.
Economic damages are those that can be monetarily measured. These include
- Medical expenses such as the cost of caregivers, physical therapy, prescription drugs, and other related costs.
- Lost wages and earning capacity
- In an auto accident where there is personal injury, there may be damage to property for which damages may be awarded
Non-economic damages are those for which there is no universally recognized monetarily stated price. Measurement of these damages involves difficult fact issues for the jury to determine necessarily by subjective standards. These include
- Pain and suffering and mental anguish.
- Permanent disfigurement
- Physical impairment.
Punitive damages are awarded as a punishment or deterrent (not compensatory) against a future occurrence of the causal activities by the defendant or others. They are awarded only where the defendant’s conduct is egregious.
In some states, punitive damages are limited to a cap which is typically a multiple of the compensatory damages awarded.
Some state legislatures, in response to severe pressure from the AMA and other powerful lobbies, have enacted special limits or caps on medical malpractice damages.
Burden of Proof
A personal injury case is a civil action where the plaintiff has the burden to prove the defendant’s liability and measure of damages by a preponderance of the evidence. Generally, this means that the fact finder (jury or judge) is convinced that there is a greater than 50% chance that the plaintiff’s claim is true.
Settlement vs Trial
Most injured parties’ claims involve an insurance company defendant. Insurance companies have different policies regarding litigation. Some are willing to make concessions to avoid the cost and risk of a trial of the claim. Others are prone to litigate most claims to deter fraudulent or frivolous claims.
You will probably be presented with a settlement offer. You should carefully weigh the pros and cons with your lawyer
A plaintiff must consider the risk of litigation loss. Many plaintiff’s lawyers will take a plaintiff’s case on a contingent basis so that the plaintiff will incur no lawyer fees if the claim is unsuccessful. However, the plaintiff must consider the considerable delay of a trial result compared to an immediate monetary settlement resolution.
Medical Malpractice
A personal injury claim against a medical caregiver must show the duty of care required of the caregiver. For example, a claim against a doctor must show the standard of care that the doctor failed to perform and that such breach of the duty of care was the proximate cause of injury to the plaintiff.
This involves complex fact issues that require the services of a lawyer who has extensive personal injury trial experience and knowledge of the law as well as medical science.
Finding a Lawyer
The criteria for finding the right lawyer to represent your medical malpractice claim
- They must have extensive specialized experience with medical malpractice claims. They must have ready access to experts and medical professionals for advice on the standards of the doctor’s duty of care
- They should have a very positive success rate
- Get referrals from parties who have used the lawyer’s services.
- Are they willing to work on a contingency basis?
- Choose a lawyer who listens to you, answers your questions, and explains things in a way you understand.
- Your lawyer must have competent support staff.
Above all, you should engage a lawyer with extensive experience with medical malpractice claims. This valuable experience must include not only trial experience but also experience with negotiating with insurance companies. A good lawyer with the experience you need will have frequent personal interactions with defense lawyers, insurance company adjusters, court administrators, and judges.
Conclusion
Suing for medical negligence is a highly specialized legal claim. It requires an experienced lawyer with extensive knowledge of the applicable law and procedures. They also must have a working knowledge of medical science. This experience involves personal interaction with experts and medical professionals. It takes years of practice to develop these resources.