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Question 1. What do I look for in a lawyer? Because medical malpractice is a complex and specialized area of the law, choosing the right attorney is very important. Most personal injury attorneys have very little experience handling medical malpractice claims. You should ask for an attorney who has extensive training and experience in this area of the law. Question 2. How much is a lawyer going to cost? Most patients are unable to pay the costs and attorneys fees required to successfully pursue a medical malpractice claim. Most medical injury lawyers will agree to represent injured patients on a contingent fee basis. Under this arrangement, the attorney agrees not to charge the patient an hourly fee and no fee is charged unless a settlement or judgment is recovered. The contingency fee is limited to a percentage of the amount actually recovered, usually 33-1/3%. Many attorneys will also advance the cost of pursuing a medical malpractice claim with the understanding that such costs will be reimbursed upon recovery of a settlement or judgment. Question 3. How much insurance does the doctor have? Most doctors are required to carry at least $1.0 million in professional liability insurance to protect against catastrophic patient injuries caused by improper medical treatment. Premiums are passed on to patients or patients' health care providers in the form of small increases in the cost of medical care. Hence, patients assist health care professionals in maintaining professional liability insurance so they will be fairly compensated in the event of injury. Hospitals and other health care facilities also carry professional liability insurance, usually in excess of $1.0 million. Health care providers have a legal and moral responsibility to use professional liability insurance to compensate injured patients. This is no different than the obligation an ordinary person has to use his homeowners or automobile liability insurance to fairly compensate someone who was injured by their negligence. Question 4. What are the doctors responsible to pay for? Health care providers are not responsible to pay for injuries or complications unless they are caused by their negligence. Many injuries are accepted risks of a particular illness or medical procedure and occur even though the health care provider renders good and appropriate care. You are entitled to recover only for those injuries which are actually caused by the negligence or carelessness of your health care provider. Question 5. Medical Records? Before initiating a medical malpractice action, your attorney will meet with you to discuss you claim. You will be asked to sign a form consenting to the release of your medical records and other information as well as a contingency fee agreement. In the weeks that follow, your attorney will obtain and carefully review copies of your medical records. He may also have your records reviewed by a physician or other health care professional Question 6. Intent notices and hearings? If, after reviewing your medical records, your attorney feels that you have a good malpractice claim, he may send a letter to the responsible health care provider. This letter will describe the negligent care that caused your injuries. In many states a copy of this letter must be sent to the State Division of Professional Licensing with a request for a hearing on your claim. Usually, within four to six months, you and your attorney will meet with representatives of the state licensing division to discuss your claim. Subsequently, the division will issue an opinion on whether they agree that you have been injured by substandard health care. If the division believes that you have been injured by substandard health care, you may be able to settle your claim after this hearing. Your attorney will help you determine what is a fair and appropriate settlement amount; however, the final decision will always be yours. Question 7. Litigation? Usually, health care providers believe their conduct was proper or are unwilling to admit that they have injured a patient through carelessness or neglect. If the responsible health care provider is unwilling to settle, it may be necessary to file a complaint in state or federal court and prepare for trial. This process usually takes from two to three years. Most cases settle before trial. Question 8. How common is death in medical malpractice? According to recent studies, as many as 120,000 patients die every year as a result of medical malpractice. These statistics do not include the hundreds of thousands of patients who suffer paralysis, brain injury and other catastrophic injuries because of medical mistakes. If you have been injured by the carelessness of a health care provider, you are morally Question 9.What does the defense do? Besides trying to show that there was no negligence, or no damage caused by the alleged negligence, the defense may argue that something or someone else actually caused the injuries. A defense that is very frequently encountered is to blame the patient for the problem. Blaming the patient takes many forms including arguing that the patient was too fat, or too thin, or had unusual internal anatomy, was a smoker, a drinker, a drug abuser, or did not take his medicine, or failed to tell the doctor something he should have, or failed to come back as instructed. These defenses are an attempt to put the patient on trial instead of the doctor, or at least to try to get the jury to divide responsibility between the patient and the healthcare provider. Sometimes it works; sometimes it backfires. In Florida we have what is called a modified comparative negligence rule. In general what this means is that if the jury finds the doctor sixty percent at fault and the patient forty percent at fault, then the patient may recover for sixty percent of her damages from the doctor. There are other important permutations to this rule in Florida and you should be sure to ask your lawyer about the issue of comparative fault and how that might apply to your particular case. Question 10. How long will my case take? The average time from beginning to end varies from city to city and state to state, usually ranging from one to six years. In most places the average is probably two to three years. A rare case can be settled in a few weeks or months. On occasion, a case could last a decade or more including appeals. Ask your lawyer what the average length of time is for a malpractice case in your area. No lawyer can promise you how long your specific case will take because he cannot predict how the defendants will respond or whether there will be one or more appeals. Question 11. Can you sue HMOS? There is no short answer to the question of whether HMO’s are immune from suit in malpractice situations. HMO doctors may be sued personally, but the problem arises when you try to sue the HMO corporation. Nationwide this issue is being battled every day in state and federal courts. HMO’s often claim that a federal statute, known as ERISA, has pre-empted all state medical malpractice laws that might apply to them. Some courts have agreed with that and some courts have not. Many courts have said it depends on exactly how you describe the case that you are bringing. There are currently efforts in the United States Congress to pass a law making it clear that Congress did not intend to excuse HMO’s from their medical malpractice. President Clinton has indicated he would probably sign such a bill if it passes. Florida courts are still wrestling with the issue of HMO immunity just like the courts elsewhere. For the most part, Florida courts, including Florida’s federal courts, have indicated that if HMO’s are sued for providing negligent care they may be liable. On the other hand, if they are sued because of a decision they made internally as far as what medical procedures their insurance plan will pay for, they may have immunity. These laws and cases are constantly evolving and if you have a dispute with an HMO you should try to find a law firm with experience in handling HMO disputes. Question 12.What if no one will take my case? Do not hesitate to talk to more than one lawyer about taking your case. Maybe the third lawyer you talk to will have had good success with a case just like yours, while the first two had bad experiences with a similar case. What if no attorney will take your case? It means the consensus is either that your case probably cannot be won, or that the likely damages that can be recovered will not justify bringing the case. It is our firm belief that you should not try to pursue the case without legal representation. There may be much more at stake for you financially than you realize. If you are convinced that you received inappropriate care but cannot find a lawyer, you are encouraged to file a complaint with the appropriate medical regulatory board or agency. Any of the malpractice lawyers who turned your case down should be able to tell you what agency to contact for your area. While filing a grievance with an administrative agency will not ordinarily result in compensation for you, it may in fact help prevent the incident from happening to other patients in the future Now the techinal questions out of the way. Lets break down some claims for medical malpractice. 1. Birth injury Birth injury refers to injury sustained during labor and delivery. Such injuries include damage to nerves in the shoulder region and face which may cause temporary or permanent paralysis, fractures of the collar bone, arms, ribs and skull. More serious birth injuries include brain injury such as cerebral palsy or mental retardation. The most common cause of cerebral palsy is hypoxia or poor oxygen supply to the brain. Cerebral palsy may also be caused by infection of the brain or by head injury. Symptoms of cerebral palsy may include floppy muscles, one or more limbs that are permanently contracted or stiff, delayed development in many movement skills, difficulty learning to walk, and mental retardation. The risk of cerebral palsy is increased for infants who are born prematurely or as a result of difficult labor and delivery. Cerebral palsy is incurable but symptoms may be treated with physical and speech therapy. Birth injuries that are the result of failure to perform a timely cesarean section or are the result of other careless or inadequate medical care should be paid for by responsible health care providers. 2. Brian Damage damage results from death or degeneration of cells within the tracks of the brain. Diffuse brain damage such as that caused by oxygen deprivation may occur during the birth of a baby, as a result of a heart attack or from other circumstances where there is inadequate oxygen supply to the brain. Other incidences may include: post-operative pulmonary edema, poisoning, drowning or electric shock. Brain injury may also result from vaccinations or other medications. Localized damage to the brain results from head trauma, stroke, tumor, infection, or bleeding within or onto the brain. Both diffuse and localized damage often results in permanent and significant disabilities which may include retardation, learning disabilities, impairments of speech, movement, sensation, vision, epileptic seizures, etc. Damages from brain injuries are often catastrophic resulting in the need for lifelong medical care and treatment and significant permanent disability. 3. Death of a child The damage caused by a patient's death is significant and far-reaching. It usually includes medical and funeral and burial expenses as well as the loss of financial and economic support. The most significant loss is almost always the emotional loss of the deceased person's love, care, companionship, guidance and consortium. Whether the deceased person is a spouse, child, parent or grandparent, this far-reaching emotional loss lasts a lifetime. A child's death is often preceded by additional noneconomic losses in the form of physical, mental and emotional pain and suffering. The estate or heirs of a deceased child are usually entitled to recover damages for these losses. There are so many more reasons for medical malpractices claims. Those are the most common. Now here is a list of words and meanings you might hear and need to know. 1.Fetal Distress Fetal distress can result in severe injury or death of a fetus or newborn baby if not promptly recognized and treated with emergent or prompt cesarean section or by forceps delivery or vacuum extraction. Fetal distress results when a fetus fails to receive enough oxygen during labor and delivery. While fetal distress is usually caused when uterine contractions reduce the baby's oxygen supply, it can also result from other causes such as the mother's blood loss. The attending obstetrician and labor and delivery nurses are responsible for monitoring the health of both the laboring mother and her fetus through regular and careful physical examinations and fetal heart monitoring. Significant fetal distress is usually detected and treated through appropriate monitoring and prompt measures such as cesarean section. Health care providers who fail to appropriately watch for, recognize, and treat fetal distress are responsible for any injuries resulting from their failures. Such injuries are often catastrophic, including severe brain and other neurological damage and death 2.Statute of Limitations a time limit set by law which creates a deadline for filing a lawsuit. If you file your suit after the deadline the suit will be thrown out. Each state has its own special requirements and some states allow extensions or have exceptions to their time limits. Although each state differs, these malpractice statutes of limitations may be as short as six months or as long as four years or more. Some states (BUT NOT FLORIDA!) will postpone the running of the statute of limitations for an injured child until the child reaches a certain age. If you think you may have a claim for medical malpractice you should contact a malpractice lawyer in your state as soon as possible to learn the precise deadline in your state. There may be a great deal of work to do to prepare your case before it can be filed. Some malpractice lawyers will not even agree to investigate a potential case unless there are several months remaining on the statute of limitations. Another benefit to starting the claim as soon as possible is that sometimes there are important records that can be obtained before they are destroyed or reduced to microfilm. The prompt collection of evidence may make a big difference in successfully proving your case. It is far easier to prove a medical record has been altered if you have access to the original rather than a microfilm copy. In Florida the statute of limitations for medical malpractice is two years from when the patient (or sometimes a particular family member or guardian) either knows, or should know with the exercise of reasonable diligence, that the injury has occurred and there is a reasonable possibility that the injury was caused by medical malpractice. Florida also has a very harsh rule that goes along with it called the statute of repose. This rule says that unless there is fraud, concealment, or misrepresentation, under no circumstances may a healthcare provider be sued for medical malpractice more than four years after the actual incident of malpractice. So even if the patient or family does not know about the malpractice, they may not bring the claim more than four years after the malpractice occurs under most circumstances. In 1996 Florida adopted for the first time a special statute of repose for children. For incidents of medical malpractice which occur on or after July 1, 1996, the four year statute of repose cannot act to cut off a child's malpractice claim prior to the child's eighth birthday. Keep in mind, however, that the two year statute of limitations can still cut off the claim well prior to that if the parents or guardian of the child either know, or with the exercise of reasonable care should have known, of the injury to the child and the reasonable possibility that it was caused by malpractice. In other words, while the statute of repose was extended for certain children, there was no similar extension for the statute of limitations, and either one may cut off your claim if you don't file it soon enough. If the case is going to involve a State agency as a defendant, or a Veterans Administration Hospital or Clinic, there are special advance notice requirements that must be strictly followed.If you think you might want to pursue a claim, contact a medical malpractice lawyer without delay. 3.Informed Consent Informed consent is a concept that varies from state to state, and is often governed by a specific statute. The idea is that a doctor is not supposed to perform a risky medical procedure without first explaining the important risks of the procedure to the patient, and then having the patient's consent to do it. Usually, if a patient is unconscious and the procedure is an emergency, consent is implied by operation of law. In Florida, the informed consent law requires that the patient be advised of three things: 1) The nature of the procedure; 2) the substantial risks and hazards of the procedure; and 3) the reasonable alternatives to the procedure (including, when appropriate, the option of doing nothing). After learning of these things, if a patient consents to the procedure, then informed consent has taken place. Some people erroneously think that if a patient signs a written consent form, that means informed consent has been given. But a signed consent form by itself is not conclusive; it is just another piece of evidence that informed consent might have been given. It is still quite possible that the consent form itself doesn't contain all the important information it should, or was signed without explanation when the patient was already heavily medicated. Many doctors have a practice of just giving an order for a nurse to have the consent form signed, and they think that is obtaining informed consent. It is not. Informed consent only takes place if and when the required information is given to the patient, and the patient then consents. It can be oral or written, but it must be complete.Florida's informed consent law has a second part to it that applies when a patient sues a doctor for failure to obtain informed consent. The law provides that even if a jury concludes that the doctor did not give the patient the information he should have, the jury should still decide the case in favor of the doctor if the jury believes that the patient probably would have consented anyway if the patient had been given the information. This can make winning a pure informed consent case a tough proposition. I will be adding more as I search the web for more information. If you know a site or some info to give please email me. And remember it has been 3 years since we started the legal process and we will be just going to court in October. It is a LONG road filled with anger, worries, and fear. If you do decide to pursue it legally just remember that it will go slow and seem to take forever but one day that doctor will have to answer for what he or she did
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