Medical Malpractice FAQ
Medical malpractice cases are among the more complicated personal injury actions that there are. There are many steps between the doctor’s error and compensation that must happen for you to receive compensation. Here are some medical malpractice FAQs that we are commonly asked about medical malpractice lawsuits.
We appreciate that these questions are just the beginning and may not address all of your concerns regarding medical malpractice claims. Consequently, contact our law firm for a free consultation with committed and experienced medical malpractice attorneys for a free case evaluation.
- What Is Medical Malpractice?
- What Is Considered Medical Malpractice?
- Is a Failure to Diagnose a Condition Medical Malpractice?
- What Should I Do if I Think I May Have Been Injured Due to Medical Negligence at an Illinois Hospital?
- How Do I Find the Right Medical Malpractice Attorney?
- What Should I Not Do When I Suspect Medical Malpractice?
- What Do I Do if I Suspect that My Medical Records Are Incorrect?
- Can I Sue for Medical Malpractice if my Operation did not get the Results I was Hoping for?
- What Is the Statute of Limitations for Medical Malpractice
- What Is the Standard of Proof in a Medical Malpractice Case?
- What Are the Chances of Winning a Medical Malpractice Lawsuit?
- What Is the Average Settlement for Medical Malpractice Lawsuit?
- Who Can You Sue in a Medical Malpractice Case?
- Are Birth Injuries Considered Medical Malpractice?
- What Damages Could I Recover in a Medical Malpractice Case?
- How to Prove Medical Malpractice?
- How Long Does a Medical Malpractice Case Take?
- How Much Will a Medical Malpractice Lawsuit Cost Me?
- Do All Medical Malpractice Lawsuits go to Trial?
- What Role Does the Insurance Company Play in Your Case?
- Should I Take the Settlement Offer that the Insurance Company Made Me?
- Can Patients Be Responsible for Their Own Injuries?
- Can Doctors Get You to Sign Away Your Rights to Bring a Medical Malpractice Case?
Medical Malpractice FAQs
Many victims are injured through the negligent act of a healthcare provider such as a hospital, doctor, chiropractor, nurse, therapist, nurses' aide, or other practitioner. Any failure of the medical care provider to act according to acceptable standards of practice can be considered legal medical malpractice. When this occurs, the victim typically has the right to seek financial compensation from every person or entity involved in causing their harm to receive financial recovery to pay for their medical bills, lost wages, loss of future earnings, pain, suffering or death.
Our legal team has compiled a comprehensive list of the most common medical malpractice freely asked questions and posted the information below. Families use this information to understand their legal options for seeking compensation.
What Is Medical Malpractice?
Medical malpractice is when negligence in health care causes an injury. In a nutshell, medical malpractice is when a medical professional or medical provider fails to use the accepted standard of care that a reasonable physician would use under the circumstances. There are several requirements in order to prove medical malpractice:
- The doctor (or nurse or health care provider) must have violated the standard of care. These are either written or accepted practices that health care professionals use to treat patients. Patients have a legal right to care that follows these standards.
- The patient was injured by the negligence, and their damage was something that they would not have suffered had it not been for the negligence. This is more than just an unfavorable medical result.
- While it is not necessarily a legal requirement, the injury must have been significant. These cases are complex and time-consuming, and there usually are substantial damages on the line. Otherwise, the case may not be worth litigating.
What Is Considered Medical Malpractice?
There are many different things that could be considered medical malpractice. Here are some example of malpractice that could lead to compensation from the health care provider:
- Failure to diagnose a condition or misdiagnosis
- A surgical error (including operating on the wrong site, leaving medical equipment inside the patient’s body or just a simple medical error)
- Ordering unnecessary medical procedures
- Not learning about the patient’s medical history before making a decision
- Failure to care for a patient after a surgical procedure
Is a Failure to Diagnose a Condition Medical Malpractice?
Medical malpractice does not have to be just a botched surgical procedure. It applies to all types of medical care and service. Even your internist could be sued for malpractice if they failed to give you appropriate medical treatment.
For example, if you present symptoms of an illness and a doctor does not notice it and order tests, they could be legally responsible. This could include cases where a physician fails to diagnose cancer in its early stages, and the patient does not get medical help until it is too late.
Doctors would have a legal obligation to order testing and properly read the results of your test and could be sued if they failed to order tests in the presence of symptoms or read the results incorrectly.
What Should I Do if I Think I May Have Been Injured Due to Medical Negligence at an Illinois Hospital?
The first thing on your list should be to see an attorney to discuss your case. They will investigate your case and speak with expert witnesses to determine whether you may have a valid claim for compensation. The key is to get legal help immediately. You do not want to risk missing the statute of limitations to file a lawsuit in your case.
You should also be careful about what you say to your doctor. You do not want to give them a reason to start going into litigation preparation mode, even though they already may be taking these steps. You can try to get your medical history and begin to document your damages, both in terms of lost wages and pain and suffering.
The most important thing is that you act quickly. You only have two years to file a medical malpractice lawsuit in Illinois, and these cases take time to investigate before you can even file the complaint with the court.
How Do I Find the Right Medical Malpractice Attorney?
When it comes to medical malpractice cases, you are looking for experience. Not anyone can try a medical malpractice lawsuit because they are very scientifically complex and get deep into the details of medical treatment.
In addition, you also need an attorney who understands the human aspect of their job. Injured victims and their families are dealing with a tough time with much financial and physical uncertainty. Your attorney should handle your case with compassion and be able to communicate with you in an open and transparent manner. In addition, they should be responsive and provide an excellent level of customer service. This is exactly how we treat our clients at Rosenfeld Injury Lawyers. Contact us for a free consultation.
What Should I Not Do When I Suspect Medical Malpractice?
You will do most of your talking through your lawyer. That is how you will get justice and receive financial compensation for the injury that you have suffered.
Therefore, it is important not to say much if anything to the doctor after the injury. Arguing with the doctor could be counterproductive, and it could hurt your legal case. You may say something that you could later be made to regret. Hospitals and doctors will do anything to save themselves from a lawsuit.
In addition, you should be very tight-lipped about your condition, especially avoiding any sort of public discussion of it on social media or anything that a defendant could trace.
Make sure to keep details of your lifestyle quiet too in case someone is able to argue that you are not as injured as you are claiming in your lawsuit. If an insurance company or a defendant sees that you have any kind of active lifestyle after filing your claim, they will use it against you.
What Do I Do if I Suspect that My Medical Records Are Incorrect?
Doctors will certainly not want to go into detail on your medical records when they think that they may be at legal risk. It is not uncommon for medical records to be incomplete in medical malpractice cases.
In some cases, they may even be falsified as doctors think that it could keep the truth from emerging. However, incomplete medical records may also be the result of something more benign, such as an error in dictation.
You do have the right to request a correction to your medical records, but you should only do this after consulting with an attorney.
Your attorney will review your medical records, most often in consultation with a medical expert. They may send you to another doctor for an independent evaluation, which can gather evidence of what happened to you.
If you do find that the medical facility falsified records to keep you from learning what happened, you could have another grounds for your lawsuit. This could be a form of fraud.
Can I Sue for Medical Malpractice if my Operation did not get the Results I was Hoping for?
Not necessarily. Some surgeries do not go well for reasons other than medical malpractice. Your body may not have tolerated the procedure, or the surgery simply did not work. There are many steps that you would need to go through to move from an unsuccessful surgery to a medical malpractice claim. A doctor could use reasonable skill for the operation, and it could still just not go well.
That is part of the risk of surgery. In addition, there is a difference between a surgery not going well and an injury, which is the requirement for a successful medical negligence case.
However, if the doctor or medical professional was the reason why you did not get the results that you wanted, that could be eligible to file a medical malpractice claim.
You would need to connect the doctor’s actions to the result of your surgery and show that they did not meet the accepted standard of care while performing your procedure.
If they were the reason why you suffered some sort of damage (the need for an extra surgery could be damage), they would need to compensate you. Talk to us for a free case evaluation.
What Is the Statute of Limitations for Medical Malpractice
The statute of limitations is the time period that you have in which to file a lawsuit. It is a hard deadline for you as a plaintiff, and if you miss it, you would lose the ability to file a lawsuit.
The statute of limitations begins from the time that you were injured or should have known you were hurt. Most times, this is the day that you were hurt during a procedure or in treatment, but some patients do not realize that they were injured until some time afterwards.
In Illinois, you have two years from the date of discovery of your injury to file a lawsuit (for medical negligence or personal injury cases). It is important not to wait until the last minute to take action given the harsh consequences for missing the deadlines.
There are very few reasons why a court would allow you to file a lawsuit after the time has passed, and you should not take your chances.
What Is the Standard of Proof in a Medical Malpractice Case?
A medical malpractice case is like any other personal injury lawsuit, and it has the same standard of proof. You must prove that the doctor was negligent in treating you. This is the same four-part test that you would find in every tort case.
The four elements that you must demonstrate are:
- The doctor owed you a duty of care (this one is rarely in dispute - doctors always owe their patients a duty of care)
- The doctor breached that duty of care by acting unreasonably for the circumstances
- You were injured
- You would not have been injured had it not been for the doctor’s actions or inactions.
In any medical malpractice case, most of the testimony and focus will be on the second element. Proving that the doctor acted unreasonably will require that your lawyer is able to recreate the events surrounding your injury and demonstrate that your doctor did not do what an ordinary doctor would have done under the circumstances.
What Is the Average Settlement for Medical Malpractice Lawsuit?
If it seems like we answer “it depends” to a number of these questions, it is because every medical malpractice case is different. Your medical malpractice settlement depends on the harm that you individually suffered.
There is no one set way that these cases are valued other than through a consideration of the individual elements of damages.
There are some statistics that show that the average medical malpractice settlement is around $350,000. However, there is not necessarily an “average” case as victims are different ages and suffer varying forms of harm. They also have different medical bills, and their future life expectancy and age can affect the average.
Medical malpractice cases that are won at a jury trial often result in large damages awards. You may take somewhat less to settle before a trial, you would receive your money quicker and would eliminate the risk of losing at trial.
Who Can You Sue in a Medical Malpractice Case?
The most common defendant in these cases are the physicians who made the error. Most medical malpractice cases do not just stop with suing the doctor.
The hospital that employs the doctor can also end up legally responsible for the doctor’s malpractice. For purposes of your malpractice case, the physician is an agent of the hospital.
Therefore, anything the physician does could put the hospital in the position of having to pay. Anyone connected with the medical process can be sued. This even includes nursing homes, pharmacists and laboratory technicians.
If the doctor worked for a medical practice, you could also sue the practice for the actions of the physician. Hospitals and medical practices would have large medical malpractice policies that could cover your damages.
Medical malpractice cases have higher settlement amounts, and you are looking for the deeper pockets that could pay you what you lost
Are Birth Injuries Considered Medical Malpractice?
Yes. The doctor owes a duty of care to both the mother and her unborn or infant child.
Birth injuries are one of the more common categories of medical malpractice cases, and they are among the cases that have the highest damage awards considering the lifelong costs of caring for an injured child and what both a parent and their child have lost.
Here are some of the birth injury cases that could result in medical malpractice damages:
What Damages Could I Recover in a Medical Malpractice Case?
A medical malpractice is one form of a personal injury case. You would recover the same damage as you would in any of these cases, and they include economic and non-economic damages.
Economic damages cover the money that came out of your pocket, whether you had to spend it or were not able to earn it. This includes medical bills to treat your injuries and lost wages or reduced earnings for the rest of your life.
In addition, you could also receive money for what you experienced because of your injuries. The big part of these damages is pain and suffering. In addition, you could also be paid for disfigurement and emotional distress that you have experienced in the past and will likely experience in the future.
If your loved one died because of medical malpractice, you could recover wrongful death damages. These would pay for everything between the time of injury and death and then would pay the family for what they lost when their loved one passed away.
Finally, if the negligence was egregious enough, you may be able to recover punitive damages that would greatly increase the size of your award.
How to Prove Medical Malpractice?
Medical malpractice is not always the easiest thing to prove if your case goes all the way to trial. You are asking the jury to put itself in the operating room or doctor’s office and second guess the decisions that a physician made at the time.
You need to show that the doctor (medical professional, healthcare provider) or nurse acted unreasonably under the circumstances. There are accepted medical practices. While not all doctors must make the same exact decisions, what they do must not be unreasonable.
Your proof comes from a step-by-step analysis of every decision that the doctor made at the time. In order to win, you must prove that the doctor was negligent.
Your best form of evidence comes from both an analysis of the medical records and the testimony of an expert witness who would give their opinion of what a reasonable doctor would have done under the circumstances. We work with expert witnesses and are experienced in medical malpractice cases.
How Long Does a Medical Malpractice Case Take?
If you are consulting with attorneys about a possible medical malpractice case, you should know that these cases are very complicated, and they take time.
Medical malpractice lawsuits have complex scientific issues that must be proven, and discovery in the case can be very detailed.
All of this is to say that a medical malpractice case could stretch for many years. Some lawsuits can take more than five years from start to finish.
In many cases, how long your case takes depends on how motivated the defendant is to settle. Some hospitals and insurance companies have deep pockets and think that they can wait you out to wear you down.
Other defendants realize that the last place that they want to be is in front of a jury and will try to settle your case quickly. For you as a plaintiff, beware of settling your case too quickly.
This can be a bad thing because you could be leaving money on the table that you get if you negotiated more.
How Much Will a Medical Malpractice Lawsuit Cost Me?
The good news for those injured by medical malpractice is that you do not need to bring a check or credit card with you to your initial consultation. A medical malpractice attorney will not expect a retainer from you nor will they send you hourly bills. Of course, your lawyer earns a living too and cannot afford to work for free.
Their pay comes if you are successful in your case either by receiving a settlement or a jury award. In that event, they would receive a percentage of your proceeds.
This would be spelled out in very clear detail in your representation agreement. If you are not successful in your case, you would not be expected to pay for your attorney’s time.
Do All Medical Malpractice Lawsuits go to Trial?
Many people who we talk to are shocked by how few medical malpractice cases actually will go all the way to trial. Like other personal injury cases, trials are pretty rare because most cases will settle before trial.
Of course, this is not a guarantee that your case will settle. However, you should be prepared to discuss a possible settlement with the defendant either before or during the trial.
When filing a medical malpractice claim, you should be prepared for anything. Our lawyers are experienced in negotiating settlement offers, but you can also have the confidence in knowing that we are proven trial lawyers who can find the doctor or hospital in court.
What Role Does the Insurance Company Play in Your Case?
It is the insurance company that would have to pay the damages, so they would be in the driver’s seat when it comes to making key litigation decisions to oppose or settle your claim.
Medical malpractice cases are different from car accident cases and slip and falls in that filing a claim with the insurance company would usually not be enough to settle your claim.
You could try to file a claim and speak with the malpractice insurance company, but you would likely have to go to court first before they try to negotiate a settlement. This is partially because of the high dollar value of medical malpractice cases.
Insurance companies have tough lawyers handling their medical malpractice cases because they could be on the hook for millions of dollars.
You can rest assured that they will strongly try to test your case and then put you through the ringer in settlement negotiations. You must match them by hiring strong legal counsel of your own.
Should I Take the Settlement Offer that the Insurance Company Made Me?
Just because the malpractice insurance company is offering you money does not mean that it makes sense for you to accept their settlement offer.
In fact, there is a reason why they are making you the offer; they think that a jury would order them to pay a whole lot more if the case ever went to trial. This does not mean that it will never make sense to agree to a settlement.
Most cases do end that way. It is just that you should be very skeptical and look very critically at any settlement offer to see that it fairly compensates you.
This is where a medical malpractice attorney could help you. At Rosenfeld Injury Lawyers, we are experienced attorneys who have seen our share of medical errors cases.
We can tell a serious settlement offer from one that is solely aimed at protecting the insurance company’s bottom line. We are committed to maximizing the value of your case.
Can Patients Be Responsible for Their Own Injuries?
There is a concept in personal injury law called contributory negligence. This is when plaintiffs are also negligent, and they may be denied financial recovery because they are to blame for their own injuries.
In most medical malpractice cases, this concept does not come into play. There are some cases in which the plaintiff may have been partially responsible because they did not follow the doctor’s orders.
However, in order for this to keep them from recovering, this has to be directly responsible for the patient’s injury.
In Illinois, the plaintiff would need to be more than 50% to blame for their own injuries to be barred from recovering.
Can Doctors Get You to Sign Away Your Rights to Bring a Medical Malpractice Case?
No. You have a right to receive medical care that is free from errors and negligence that can injure you. Even if the doctor tries to get you to sign a waiver of informed consent document and succeeds, it would still not be enough to keep you from winning a lawsuit.
The law would simply not recognize and give effect to an agreement where you waive certain basic rights as a condition for receiving medical treatment.
This would be void because the doctor would be overreaching and abusing their position of power to take away your legal rights. The doctor can get you to sign something as a means of showing that you gave informed consent, but they do not get a contractual right to be negligent.
For additional information, click the links below: