MEDICAL MALPRACTICE
FREQUENTLY ASKED QUESTIONS ABOUT MEDICAL MALPRACTICE
A study published in the Journal of Patient Safety estimates that 440,000 people die each year after suffering a medical error in a hospital. This makes medical malpractice the third leading cause of death in the United States. Patients dying in a hospital from medical negligence equates to two jumbo jets crashing every single day in this country.
This study does not consider the number of hospital patients that suffer disabling, life-changing injuries. And the study does not include those patients who die or are injured from medical mistakes in a doctor’s office or other setting outside of a hospital.
Despite the epidemic of deaths and injuries from medical negligence, statistics show that most medical malpractice goes unrecognized and unreported. Only about two percent of patients injured by a health care provider’s negligence seek compensation through a medical malpractice lawsuit. And despite reports to the contrary, the number of medical malpractice cases being filed has dropped dramatically over the last decade.
In the 30+ years that I have been representing victims of a health care provider’s negligence, my clients have asked me numerous questions about medical malpractice. The following is an attempt to answer some of the more common questions about medical negligence claims. If you have a question regarding an injury you believe was caused by a health care provider and it not answered below, please call me.
- Q. What is medical malpractice?
- Q. How do you prove my injury was caused by medical malpractice?
- Q. What are some examples of medical malpractice?
- Q. Does a bad result from medical care or surgery mean there was malpractice?
- Q. I signed a consent form for the procedure. Can I still recover for damages for medical malpractice?
- Q. Am I entitled to a copy of my medical records?
- Q. My doctor did something wrong and I could have died. Do I have a claim?
- Q. What must be proved in a medical malpractice case?
- Q. What should I do if I think I have a medical malpractice claim?
- Q. What will happen to the doctor if I file a medical malpractice lawsuit?
- Q. Is there a limit on how much a person can recover for a malpractice claim?
- Q. How are attorney fees paid?
- Q. Are there expenses involved in a medical malpractice case?
- Q. Is there a time limit for filing a medical malpractice case?
Q. What is medical malpractice? [ top ]
A. Medical malpractice is the legal terms for medical errors or mistakes by a health care provider that results in personal injury or death. A claimant must prove that the health care provider failed to meet accepted standards of medical care, violated established procedures, or failed to provide proper medical care.
Q. How do you prove my injury was caused by medical malpractice? [ top ]
A. We will need to obtain and analyze the medical records of your care. To establish your medical malpractice claim it will be necessary to prove what the standard of care was for your procedure and to prove that the physician fell below the standard of care. Almost always this requires that an expert witness, usually another physician, review the medical records to determine whether medical malpractice occurred. That physician will then need to testify about his/her opinion that medical malpractice occurred. Many medical malpractice lawsuits are won or lost based upon the effectiveness of the expert.
Q. What are some examples of medical malpractice? [ top ]
A. Some examples include a failure to diagnose or delayed diagnosis of a disease or condition, wrong diagnosis, surgical errors, birth injury, failure to timely deliver a baby, failure to monitor a patient after medication is given, medication errors, and nursing home neglect that result in serious injury or death.
Q. Does a bad result from medical care or surgery mean there was malpractice? [ top ]
A. In general, there are no guarantees of good medical results, and unexpected or unsuccessful results do not necessarily mean negligence occurred. To succeed in a medical malpractice case, a plaintiff has to show that the injury or damages resulted from the physician's failure to follow the accepted standard of medical care for that procedure.
Q. I signed a consent form for the procedure. Can I still recover for damages for medical malpractice? [ top ]
A. Yes, you may still be able to recover damages. A consent form does not release a physician from liability if the procedure was performed negligently. If we can establish that your physician did not meet the applicable standard of care, and you were injured as a result, you may still recover against the physician.
Q. Am I entitled to a copy of my medical records? [ top ]
A. Yes. Both Missouri and Kansas law give you a right to obtain your medical records. The health care provider can charge a handling/copying charge but you have a legal right to your records. If, after you have obtained the records, you do not have the knowledge to understand the records, you should consult with an attorney who has experience reviewing medical records.
Q. My doctor did something wrong and I could have died. Do I have a claim? [ top ]
A. Maybe, but not just because the doctor did something wrong. You must also show damages were caused by the negligent act. If you did not have an injury, you may not have any damages. If someone ran a red light and almost hit your car, you couldn't sue that person for damages they almost caused. Likewise, you can't sue a doctor for damages that he almost caused.
Q. What must be proved in a medical malpractice case? [ top ]
A. The plaintiff has the burden or proving three separate claims. First, we must show that established standards of medical practice were not followed. Next we must show that the negligence was the cause of the injury being claimed. Finally, we must prove the nature and extent of the injury and damages being claimed. Lack of adequate proof of any one of the three elements will result in failure of your claim.
Q. What should I do if I think I have a medical malpractice claim? [ top ]
A. You should talk to a lawyer who has expertise in medical malpractice cases as soon as possible. The attorney exactly what happened. If possible, obtain your medical records and bring them with you to your first meeting with the attorney. If you are unable to obtain the medical records, the attorney can do that for you. Because there are time limits governing how long you can file a medical malpractice lawsuit, you should contact an attorney as soon as possible.
Q. What will happen to the doctor if I file a medical malpractice lawsuit? [ top ]
A. A medical malpractice lawsuit is filed for the purpose of obtaining compensation for your injury or loss. A lawsuit may also result in correction of the medical error causing your injury with the result of improved medical care for future patients. A medical malpractice case will NOT adversely effect the doctors medical license, hospital privileges, or future ability to practice medicine.
Q. Is there a limit on how much a person can recover for a malpractice claim? [ top ]
A. Yes. In Kansas, the non-economic damages are limited to $250,000. In both Kansas and Missouri there is no limit on economic damages (past and future medical bills and past and future lost wages).
Q. How are attorney fees paid? [ top ]
A. Most patients retain medical malpractice attorneys on a contingency fee basis. A contingent fee is one that is paid out of the recovery in the case. If there is no recovery of compensation for you, there are no attorney fees due. If compensation is recovered for you, the attorney fee is a percentage of the amount recovered.
Q. Are there expenses involved in a medical malpractice case? [ top ]
A. Yes. Medical malpractice cases are very expensive cases to properly prepare and litigate. There are charges to obtain medical records. Expert witnesses (physicians) can cost thousands of dollars. And the costs for exhibits and the technology to demonstrate how the negligence occurred and the devastating injury are significant. The cost to develop a medical negligence case today often runs from $40,000 to over $100,000. It is for this reason that the injuries in a medical negligence case must be severe in order to merit this type of expense. The expenses are advanced by your attorney and the attorney is reimbursed at the conclusion of the case.
Q. Is there a time limit for filing a medical malpractice case? [ top ]
A. Yes. Generally, the time limit, called the statute of limitations, is two years. However, both Kansas and Missouri have limited exceptions to this time deadline. Both states have longer time limits for minor children. If you have questions about the time limit in your claim, you should contact an attorney immediately because failure to file within the time limit can result in your being barred from obtaining any compensation for your injury.
