What is Medical Malpractice?

Medical malpractice, also referred to as medical negligence, is a term that broadly refers to mistakes made by health care providers whose performance of duties deviate from the standard of practice within the medical community and cause harm to a patient or patients.

These oversights may include misdiagnoses of a condition or disease, failure to inform the patient of the risks of a procedure or prescribed drug, negligently performing a procedure, prescribing a drug that could harm the patient due to preexisting conditions or allergies, or prescribing the wrong dosage of a drug (such as anesthesia).

In general, there are three criteria to be met to have a legitimate claim of medical malpractice:

1) The health care provider failed his duty toward the patient and
     provided negligent care

2) The patient realized recognizable harm or loss from this care

3) The damages are a result of the doctor's mistake or misjudgment

Negligence by a health care provider can include an error in diagnosis, treatment, or illness management. A legal case for medical malpractice can be brought against:

-  The doctor (if his or her actions deviated from generally
   accepted standards of practice)

-  The hospital (if improper care or inadequate training
    existed)

-  Local, state or federal agencies that operate hospital
   facilities.

-  Nursing Homes or extended care facilities (failure to
   provide proper fall protection, failure to prevent bed
   sores

Negligence can be the performance of an act or the failure to act. Negligence requires a state of mind that is found to be careless, inattentive, or otherwise reckless in its attitude toward others. Doctors can make mistakes that are minor and although these may represent an error, may not give rise to a legal claim.

However, if a health care provider's error leads to injury, incapacity or death it is generally a legitimate and viable claim. Because laws governing medical malpractice, such as the statute of limitations for filing a suit and military cases, vary by state and jurisdiction, it is important to get all the facts before proceeding with a malpractice case.

If you feel you or a loved one have suffered neglect at the hands of a health care provider, speak with an experienced attorney who can assist in evaluating your case. Hill & Moin LLP will ensure that your legal rights are protected, will provide expectations during each step of your personal injury case, and will take action on your behalf. With the goal of strengthening your position and ensuring your recovery of loss, Hill & Moin LLP will research law, interview witnesses, collect records, confer with expert consultants, plan strategy, and negotiate with insurers and opposing counsel – all things you may not know how to do let alone feel like doing if you are still burdened with your injury.

Your attorney will be able to quickly determine from the information you provide whether or not you have a strong case. Medical malpractice cases can be complex, expensive to pursue, have a high risk of no recovery, and often involve a patient's personal attachment. An objective opinion is necessary.

Once the determination has been made that it is viable to move forward, you will enter into a financial agreement with your attorney to cover his or her compensation. Typically, attorneys agree to advance all costs and work on a contingent fee basis, to be repaid in the event of recovery. This means that the attorney would receive a percentage of the gross recovery, however if there were no recovery the patient would not suffer any financial loss.

Hill & Moin LLP will obtain a detailed medical history about you, the patient, including the names of all physicians and hospitals that have provided medical treatment to the patient. As the patient, you may be asked to prepare a written summary of all medical treatment including doctors seen and for what symptoms, conversations with health care providers of any capacity, treatment received, and dates for all of these interactions. Your attorney may retrieve all medical records for you.

A medical expert or experts will be consulted to determine "with reasonable medical certainty that the action or inaction of the defendant physician was the cause of damage to the plaintiff.” At this time, the malpractice suit will be filed against the physician or hospital.

Filing suit begins legal proceedings, which may span several years. In the first stage, the legal pleading stage, the parties set forth their legal theories – what happened. In the second stage, the discovery stage, the facts to support the legal theories are developed – how did it happen and why. If the parties are not able to resolve their differences the case, now in its third stage, will go to trial before a judge and jury.

Many cases settle prior to going to trial. Having a good attorney who knows the ins and outs of medical malpractice law, as well as how to negotiate successfully can make a significant difference in the outcome.