Malpractice describes negligence in a professional setting. It is when someone in the medical field makes a mistake that results in damages to someone else.

So it requires:

• A mistake or error that should not have been made
• Injury to someone (this is usually a physical injury and called damages), and
• the injury (or damages) has to be caused by mistake. (This is often hard to prove)

Essentially yes. When you file a Malpractice case, you are usually saying that the doctor or other medical provider was negligent in how they treated you. Negligence is the legal claim that you are making. There may be others, but it is a key part of many cases.

1. Prove that a someone made a mistake in treating you. That mistake could be in failing to treat you or in doing it poorly. But their treatment has to be below the standard of care.
2. The error or negligence from number 1 caused harm to you. That harm or injury can be a physical, emotional, or financial injury.
3. You have to have an injury. You can’t really prove a case when you could have been harmed.

You have to measure the doctor’s actions against a reasonably competent doctor with a similar level of training in the same community and similar circumstances. So standards can be different all the time.

The person who is injured files the case. If that person can’t file the case, then someone else can often do it for them. When a child is involved, then a parent or guardian has to file the on behalf of the child. If someone dies, then the case is filed by the estate of that person. Then any proceeds that come from the case go into the estate and then are disbursed that way.

In almost all cases the judgment or settlement is paid by an insurance company. There are other options such as the hospital may be self-insured, or there may be a judgment that was more than the insurance coverage. In that case, it is possible that the doctor could pay some as well. In our experience, the most common result is that an insurance company (or companies) would pay the settlement or judgment.

Yes, but not always. One thing to remember about all of these Medical Malpractice cases is that they are often complicated and not simple. It truly is the case that every situation is different. So, in this case, if the hospital had a duty to treat you and didn’t then that would be a potential claim in a malpractice case.

This is an interesting question. In any case, there are Rules of Evidence. These rules are called different things in different states, but the idea is that only certain things (papers, statements, and testimony) can be admitted into evidence and used to decide the case. In general, you cannot testify that someone else said something. That is called hearsay. But, when the person who said the “thing” is the person on trial, then the testimony can be allowed into evidence. So doctors in general don’t apologize because then it could be used against them in court later.

As you might imagine, we get this question a lot. Whether you have a case depends on a lot of things.

1. What happened?
2. What mistake was made?
3. How badly were you injured?
4. Will you require more treatment?
5. Can it be proved?
6. Is there a connection between the injury and the mistake?
These are some of the questions that we ask when we review these cases.

Case are most often filed in state courts where the injury happened. Sometimes these cases are in federal court. That happens for a variety of legal reasons. Maybe the case is covered under a federal statute. That would put it in federal court. But often the cases will be in the state court of general jurisdiction. This is another of those cases where it is different in almost every state.

Yes. You can submit a complaint to a licensing board. This is not the preferred way to do this because the purpose of a Medical Negligence case is to make you or the injured person “whole” again. A complaint to a licensing board does not really help in that process as they do not grant any compensation to people. The board would only rule on licensing.

• Failure to read a mammogram correctly
• Incorrectly monitoring a mother/child during labor
• Failing to see the signs of infection
• Misdiagnosis of cancer

Malpractice as a specific type of case grew out of traditional negligence many years ago in England. That is actually where much American Law originates. The cases against doctors started there and often were about a breach of contract to “cure” or save someone. Over time the cases developed the idea of using Negligence and the Standard of Care to measure whether malpractice had occurred.

These numbers are hard to measure, but by some estimates, it can be as many as several thousand medical malpractice cases are filed every year.

This too is hard to measure, but some estimates are that there are over 100,000 deaths a year from Malpractice.

This is different in every state. In some states, you only have to file a lawsuit. Others require that an arbitration panel review the case before it can be filed.

We tell people that cases can last at least two years after they are filed, but again this is different in every state. We have seen cases last as long as ten years before being resolved, but that was an unusual case.

There is an immense amount of work required to prepare a case for trial.

• Legal Research
• Factual research
• Investigating witness testimony
• Document gathering and review
• Finding and working with experts to prove a case
• Picking a jury
• Presenting the case at trial
• Arguing motions
• And much more

No. But we always recommend that a case be prepared as if it were going to go to trial.

Yes. These cases settle. But it depends on so many different things.

• How badly was someone injured
• How strong is the plaintiff’s case
• Is the law on your side
• And many other factors

There is no set time. They can settle at mediation, at trial, or even after trial. We have had cases settle after trial even after the jury has rendered a verdict.

It Depends. There are so many different variables. Here are some of the things we consider.

• How much will it cost to care for the injured person?
• Is the injury permanent?
• How much did the extra medical care cost?
• Has someone had to change jobs or is not able to work at all?
• Has it affected their family?
• How bad were the actions of the doctor, hospital or nurses?
• How long until trial?
• How likely is it that you will prevail at trial?

All of these things come into play and are considered when determining how much to settle for.

A Malpractice cap is a limit on the amount of money that you might recover in a case. For example, if you go to trial and win a verdict for $2,000,000, but the law of the state says that you can only recover $750,000 for a malpractice case, then the verdict will be reduced. These laws do not exist in all states, but they do in some.

Most of these cases are done on a Contingency basis. This means that the lawyer charges a fee that is contingent on winning the case. The fee is often a percentage of the amount recovered. That amount can change based on when the case is resolved. These numbers are different and depend on a variety of factors.

Costs related to the case are often initially paid by the law firm who is handling the case. These expenses involve the following:

• Filing fees
• Expert witness fees
• Document costs
• Special Presentation Evidence

The types of things that cannot be advanced are costs for living expenses or giving loans during the case.

Wrongful death is a type of case where someone dies as a result of negligence. It does often change the case because it changes some of the rules around the case such as how long you may have to file the case or even what kind of damages you can claim. Some states have specific laws that have been passed that govern these types of cases.

Every type of cases has a limited amount of time to file a case. This time limit is called a Statute of Limitation. This is an important consideration when starting a case. If you miss the Statute of Limitation and file too late, then your case can be thrown out. How much time you have varies from state to state. The time limits for children are often (but not always) longer. Some states give them until they are the age of adults to file. Others use the same standards as apply to adults.