What is Medical Malpractice?

Lowenthal and Abrams, P.C. Profile Image

Practice Areas: Auto Accident, Medical Malpractice, Personal Injury, SSDI, Workers Compensation, Wrongful Death

Determining if you have duffered medical malpractice

Medical malpractice is a complex area of legal practice. In order to even successfully bring a case, you are required to meet certain basic requirements.

  1. The doctor had a duty to you.  A duty means that the doctor (hospital nurse or other medical professional) was supposed to take proper care of you. This is the easiest part of the medical malpractice test to meet.
  2. The doctor failed in that duty. In order to determine if a doctor has failed in his duty to you, your lawyer looks to see if he violated the medical standard of care. The medical standard of care is the basic expectation that every doctor or medical professional is supposed to meet. For example, if a doctor would ordinarily order a specific test and in your case he did not, the doctor might have violated the medical standard of care.
  3. The failure in the duty caused your injury. Sometimes, doctors make mistakes, but those mistakes don't cause your harm. For example, if a doctor didn't perform a test he should have performed, but your injury came from something else, the fact that the doctor didn't perform the test is not relevant to your case and won't satisfy this requirement.
  4. You were actually injured. If you weren't injured, even if you meet all other prongs of the test, you won't have a lawsuit. In addition, your injuries will need to be serious in order to sustain a medical malpractice suit. This is because these lawsuits are extremely expensive.

What does the medical expert do?

When you go to a lawyer to find out if you have a medical malpractice claim, the lawyer will get your medical records. It is through reviewing these records that your lawyer can begin to determine if you have a case. Your lawyer will also hire a medical expert to review your records. That medical expert will normally be a doctor practicing in the same field as the person who injured you. The expert will write a report for the lawyer.

If a medical expert is not willing to state that the other doctor violated the medical standard of care and caused your injuries, you won't be able to sustain a lawsuit in Pennsylvania, New Jersey or New York. This is because all three states require a certificate of merit. This is a document that states that the expert agrees  that the doctor harmed you and in doing so, violated the basic medical standard of care.

What happens during my case?

As your suit goes forward, your lawyer will continue to gather all of your medical records and other data about how you are doing. He will file a complaint with the court on your behalf explaining the doctor's failure to properly care for you and how it caused you harm. Your lawyer will work with you to collect information about how your injury impacted your life. For example, are you able to work, and if so, how much time did you miss? Are you in pain? How are you emotionally? How has your family been affected.  Each of these issues will become part of your case.

You will go through discovery, which is the process during which your lawyer (and opposing counsel) schedules and completes depositions (essentially interviews under oath) and gets access to all relevant and necessary documentation.

As time passes, your lawyer will likely try to negotiate a settlement on your behalf. If he is unable to do so, then your case will go to court and to trial.

Your case may go all the way  through trial and result in a verdict, or your lawyer may be able to negotiate a settlement at any point. Sometimes cases settle right as trial is about to start.

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