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Medical Malpractice: What to Expect When You Sue

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a doctor realizing a mistake

No one likes to think that their doctor or hospital can make a mistake.  However, those in the medical profession are only human, and mistakes do happen.  Sometimes, these mistakes can lead to serious pain, disability, and even death.  If you or a loved one suffered from a potential mistake made in your medical care, you may have a case to sue for damages, pain, and suffering.  These types of cases are common, and in a few cases, they can be difficult to prove.  Actually, most patients who experience a mistake end up not suing at all.


It can be difficult to know if your doctor made a mistake.  What is a natural side effect of your procedure may feel like a mistake, but it isn’t.  It is important to get independent, expert testimony proving that the cause of your disability was something the doctor did wrong.  This is where the case can become difficult, and your medical charts and notes will need to be studied in depth to ascertain if a mistake was made.  In these cases, it is vital to show that the doctor was in the wrong and their wrong behavior led to pain for you.



What is Medical Malpractice?

Medical malpractice is a case in which a patient sues a doctor for damages after a mistake.  About 80 percent of cases occur in the fields of obstetrics, surgical errors, missed diagnoses, and medication errors.  An error is defined by the National Institutes of Medicine as “the failure of a planned action to be completed as intended (i.e., error of execution) or the use of a wrong plan to achieve an aim (i.e., error of planning).”  It is through this definition that the malpractice case is pursued and adjudicated upon in a court of law.  Proving that there was an error is a difficult proposition, and that is where the evaluation of the case becomes critical. Errors can cause suffering from emotional pain all the way to death.

Statistically, the median age of a malpractice plaintiff is 38 years old, and they tend to be women.  19 percent were newborns and 12 percent were patients over 65.  Nearly 80 percent of cases involved severe physical disability, while 26 percent resulted in the patient’s death.  Most cases take about five years to come to completion, from injury to judgment.  Compensation is usually based on the error, the disability, and the proof that is presented in court.



What is the Average Compensation?

Most patients are interested in the compensation involved to determine whether they want to pursue costly and lengthy litigation.  It has been shown that 56 percent of claims that passed the initial review for malpractice viability received compensation.  Of these cases, the average payout was $485,348, while the median figure was $206,400.  Only 15 percent were decided by trial, and most of the other cases were settled out of court.  When the cases went to court, the payouts were substantially higher at $799,365.stack of bills to pay bail


The cost of pursuing one of these claims is estimated at $52,521.  When the claim is resolved in court, the cost is significant at $112,968, while the cost of settling out of court is more likely in the neighborhood of $42,015.  Most lawyers have a system for determining which cases are more likely to result in a guilty verdict or a settlement.  This system involves looking at the specifics of the case and rating them on a scale from one to six.  Four is considered more likely than not to win, and higher numbers mean that the probability only increases.  For those less than four, the lawyer will probably not attempt the case due to lack of proof or other reasons that decrease the viability of the case.



How We Can Help You

As personal injury lawyers, we can help you with your medical malpractice case.  Even if you are not sure about whether you have a case, we would still like to explore your case with you to evaluate it.  If we decided after an initial consultation that you have a case, we will move on to subpoenaing your medical files and reviewing them thoroughly.  We have experts on hand that are trained in both medicine and the law to review your case.

In some cases, we determine that we cannot win, and we will tell you this before proceeding with a case that is unlikely to result in payout.  If we determine that you have a good case, we will start the process of suing the doctors or hospitals involved.  Some insurance companies will look at the material we provide and decide to settle out of court.  If we feel that you stand a better chance of taking the settlement, then we will advise you not to pursue a trial.  However, if the case does seem to be good enough to command a higher payout and a chance of winning at trial, we will advise you to take that course.  How we help you will depend on your case, the insurance companies, and the offers that are put forward as part of a settlement.


Source: New England Journal of Medicine (