Medical Malpractice Questions

How do I know if I have a valid case?

Medicine is not an exact science. This means that you will have to show that the results you got were beyond a standard of reasonable care. It doesn't mean you should sue just because you didn't get the results you wanted.

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What is "reasonable care?"

Generally, it means what another fully trained medical professional would have done in the same situation with the same facts and resources. Obviously, you wouldn't expect the same care from a rescuer in the middle of the woods that you would get from a completely equipped intensive care unit. This doesn't mean that sloppy medicine or carelessness is allowed. It only means that your circumstances will determine what is "reasonable."

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Why is another doctor's opinion so important?

Since reasonable care is partly dependant on standards in the medical community, the opinion of another medical expert carries great weight. Just as the law is a specialized area of knowledge and only a trained lawyer should render a legal opinion, so too is a valid medical judgment reserved for someone trained in that profession. Sometimes, cases become a "battle of experts" with a jury left to decide who has the more powerful argument.

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Can a doctor be negligent and still not be liable?

Yes. A doctor can make a mistake, even a gross mistake, and still not be liable for damages -- for instance, if the mistake didn't cause any lasting harm. A medical malpractice claim has to show that the mistake is related to what finally resulted. If there were other factors, these will become part of the case.

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Does a medical malpractice case only apply to doctors?

No. Anyone involved in the practice of medicine can be a defendant in a malpractice case. This includes nurses, chiropractors, physician assistants and even the facilities where they are employed. The critical factor is who made the error and who contributed.

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Can you sue for a misdiagnosis or something that wasn't done but should have been?

Yes, in some circumstances. Because proper care stems from a correct diagnosis, a physician who doesn't perform to current medical standards may be liable for subsequent harm. Failure to take reasonable action is grounds for a lawsuit. You will have to demonstrate you were under the care of that doctor at the time and that the misdiagnosis contributed to what happened afterward.

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Am I allowed to get my medical records?

Although they are called "your" medical records, they actually belong to the doctor or hospital that maintains them. You do have the right to get copies, but you will probably be required to pay for them. Some records, such as doctor's notes, may not be part of your official record. You should also consider records that are not held directly by your care provider. Pharmacy and insurance records will have valuable information as well. Commonly, in a medical malpractice case, your lawyer will subpoena a great many records to establish exactly what happened.

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Aren't my medical records private?

Yes and no. When you fill out paperwork at a doctor's office, you usually agree to allowing access to other doctors and insurance companies. You have the right to know who has access to your records and why. Generally, your employer should not receive copies, nor those not connected to your treatment or payment for treatment. You will be asked to sign a medical release so your lawyer has permission to get copies and you shouldn't sign a release for anyone else (e.g., private investigators, insurance adjusters) without asking your lawyer first.

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Why do lawyers ask you to see another doctor?

Having a medical license gives the authority to render a medical opinion. The facts of your case require validation by a medical expert – your opinion or your lawyer's opinion simply doesn't count for much when it comes to technical medical matters. Your attorney will want to get a second (or third) opinion to decide if negligence can be proved and your current health status. Experts are also called in to review records for documented facts that will help your case.

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How common is medical malpractice?

The high volume of healthcare use in the US means errors are common. But not all mistakes will lead to a lawsuit. Malpractice that is actionable is still very common, however, many people do not pursue a claim they might win because they like the doctor or don't feel as if they deserve compensation. Estimates are that only 2% of malpractice ever results in a claim. For this reason, it is worthwhile to discuss what happened to you with an attorney – let them evaluate your case based on their experience.

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Who can file a medical malpractice claim?

Any party who has been injured or suffered illness as a result of a medical professional's wrongdoing or negligence has the right to file a medical malpractice claim. In the event that a child suffers a birth injury or other condition at the hands of a medical professional, the child's family has the legal right to seek compensation in a civil case. In a case where medical malpractice resulted in the death of a loved one, the patient's dependants and beneficiaries may be eligible to file a claim.

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How much will I get if I win?

The amount depends on many factors and no set figure can be given. Some of the factors that determine the value of a case are: how the injury affected your ability to earn a living, how your life was impacted, what the long term consequences are, state laws that may apply to award amounts, and even how the jury perceives you. Further, anything that is compensated for has to be proven – sometimes there are real damages, but they cannot be shown to be linked to the mistake at issue and cannot be collected for. Your attorney will evaluate all these factors and can give you an idea of whether you should proceed and what to expect.

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What are the most common types of malpractice cases?

• Surgical mistake – Accidental damage, wrong or unnecessary surgery, improper technique or even leaving something in a patient.
• Anesthesia mistake – wrong type or failure to take allergies into account. Wrong response when something happens during surgery; too much or too little anesthesia.
• Misdiagnosis – failure to recognize obvious symptoms or check for likely problems; failure to perform standard or appropriate tests; not referring to a specialist when warranted.
• Birth injuries – Not properly handling fetal distress; misdiagnosis leading to permanent injury; forced extraction injury; injury resulting from improper prenatal care.
• Prescribing errors – Mistakes made in dose, drug, or failure to monitor outcomes or track use of addictive drugs. These can happen both as an inpatient or outpatient.

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Is there a time limit to make a claim?

Yes. In Montana, you have three years from when the damage was or should have been discovered. However, this doesn't mean you should wait. Records get lost and memories fade. Your best bet is to get legal advice as soon as possible if you suspect there has been malpractice. A lawsuit can be filed and then amended later if the statutes of limitation will affect your case.

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Will I have to reimburse my own insurance company for medical bills from money I recover?

No. Your insurance company may have an action against the liability insurance of the doctor or hospital that committed malpractice, but you are not directly responsible for these charges. You will have to reimburse money paid for items (including doctor exams) that are directly related to establishing the facts in your case.

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