Medical Malpractice - What is it?

To put it simply, Medical Malpractice is negligence on the part of a healthcare provider that resulted in injury. Medical Malpractice cases may result from misdiagnosis of a disease, failure to provide appropriate treatment for a known disease, or unreasonable delay in treating a condition. The parties involved in a Medical Malpractice case are the Plaintiff, the Medical Malpractice Attorney, the Defense, and Expert Witnesses.

The Plaintiff is often the patient, although an administrator or executor of the estate may also act as Plaintiff if the patient died as a result of the injury. Before a patient may file a Medical Malpractice case they must be able to prove that the physician or care provider failed to provide adequate care and this failure was the direct cause of the injury. The Plaintiff must also present proof of damages such as whether there are physical or emotional damages.

MEDICAL MALPRACTICE ATTORNEY MUST AVOID FILING FRIVOLOUS LAWSUIT

It is the responsibility of the Malpractice Attorney to review all of the facts presented by the Plaintiff to avoid filing a frivolous lawsuit. If a judge determines that there is no legal merit to claims made by the Plaintiff then the court may impose fines for both the Malpractice Attorney and the Plaintiff for tying up the court. If the Defendant feels he/she is the victim of a frivolous lawsuit they may counter sue the Plaintiff to recuperate their court costs and may also seek punitive damages.

DEFENSE ATTORNEY PROCESS IN A MEDICAL MALPRACTICE

Usually the Defense consists of a physician, but in some instances a nurse may also be named as a defendant depending on his/her involvement with the patient. The Defense is also allowed to call expert witnesses to support their case and the Attorney is usually assigned by the hospital or facility that employs the practitioner. Both Attorneys for the Plaintiff and Defense are required to share information prior to the court date, and the parties may choose to settle out of court through negotiations.

EXPERT WITNESSES IN A MEDICAL MALPRACTICE CASE

Expert witnesses must be carefully screened prior to trial. Usually a judge will call a hearing prior to the trial to determine if the “expert’s” testimony is reliable and relevant to the case. Some questions the judge will consider are if the theory and/or technique proposed by the witness can be tested, and if it has been tested what the rate of error was for the results. A person cannot be considered an Expert in a Medical Malpractice case just because they have a college degree. All Expert witnesses must prove they have sufficient knowledge or experience with the specific area in question before the court considers them reliable.

AWARDS AND FEES FROM MEDICAL MALPRACTICE AND STATUTE OF LIMITATIONS

Every state has established Medical Malpractice statutes and it is important to become familiar with these laws prior to filing a Medical Malpractice case. With respect to Florida Medical Malpractice cases, the damages awarded to the Plaintiff will be reduced depending on how much of the injury was the Plaintiff’s fault. If a Plaintiff is determined twenty-five percent responsible for their injury, than the damages awarded to them will only be seventy-five percent the original amount.

A Florida Medical Malpractice Attorney may only collect thirty percent in fees on the first $250,000 awarded to the Plaintiff and only ten percent on amounts greater than this. In contrast, a Massachusetts Medical Malpractice Attorney fees are limited to forty percent of the first $150,000 awarded and only twenty five percent of damages awarded over $500,000. There is usually a statute of limitations that requires Medical Malpractice claims to be filed within two years from the date the injury occurred, or within two years from when the injury should have been detected.

MEDICAL MALPRACTICE BACKGROUND CHECKS ON PHYSICIAN

Prior to committing your care to a particular physician you can check the physician’s background for prior Medical Malpractice cases. This information can be obtained from the Doctor’s office, the local hospital where the physician is employed, or an HMO the physician participates with. You can also check with the American Medical Association to verify physicians training and certification status.

Some agencies will charge a fee to view their database. Depending on which state you reside in, there are statutes in place to protect your well being. For example, in Florida a physician will be unable to receive their state license if they have been implicated and found guilty in three Medical Malpractice cases.

Rocco Beatrice, CPA, MST, MBA, Award-winning trust & estate-planning expert. 71 Commercial Street #150 Boston, MA 02109 toll-free: 888-938-5872
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