What Actually Is A Medical Malpractice Claim?
Medical malpractice is a negligence claim but within the medical setting. The same elements are required to show any negligence except it is in the medical context.
What Are Some Misconceptions That People Have About Medical Malpractice Claims?
Misconceptions that people have about medical malpractice claims are that they may not have a case when they think they do, and even if they do have a case, there is a lot more involved than they realize to get it underway. Also, many people seem to assume that just because they have a bad result means there must have been malpractice. This is definitely not the case. If the case goes to the jury, the judge will specifically tell the jury that just because it was a bad result does not mean that there is malpractice. The essence of the case is to show that a doctor did something that was wrong or did not do something that he should have done, and if he had or had not done that, then the problem would not exist.
Another misconception and this is a throwback from 15 or 20 years ago, is that people seem to be under the impression that the medical profession will settle very easily to avoid any inconvenience. Often, they expect high settlement amounts, and the problem is that this is no longer the case. Dr.’s insurance companies will fight tooth and nail to avoid giving you any money. Florida, in particular, has a pre-suit period that you have to go through before you can file a case. If you do not, you can still file the case but it will be dismissed because you have not followed the pre-suit procedures. To follow that procedure means getting a sworn affidavit from an expert physician which says “I have examined the records and in my opinion, it was below the standard of care and that caused the problem”. If you do not have that letter then there is not much point in proceeding. The idea behind it is to give various parties a chance to settle before a suit is filed. I have never had one settle before filing the complaint, and I know a lot of other people that do this, and they have never had one settled before filing the complaint. It is a hoop for potential plaintiffs to jump through to make some of the cases go away, and a number of them to go away. It was instituted by the insurance carrier lobbyist, through the law on the basis that if we get this done, the doctor’s insurance premiums will go down. The law went through and the next year the premiums went up. They used similar arguments to a law being passed which puts a maximum award on injuries received by a person still alive at $500,000.
Are Medical Malpractice Claims Made Only Against Doctors Or Could They Be Against Any Healthcare Professional?
There is a definition of who qualifies as a healthcare professional when it comes to medical malpractice claims but basically, it is doctors (including D.O.s, physician assistants, nurses, chiropractors, podiatrists, midwives, hospitals, clinics, dentists, and dental hygienists. Veterinarians are not specifically addressed under the law but are treated much the same way as doctors and dentists. Malpractice claims may be brought against any of these.
Does A Case Have To Be Extremely Serious In Order To Pursue Compensation?
A case does not necessarily have to be very serious to pursue compensation. The problem that people will run into is they usually expect these cases to be taken on what is called a contingency basis. In other words, your lawyer gets a percentage of what you get. If you do not get anything, the lawyer does not get anything. The problem with low value case is it is highly unlikely that an attorney will take those on a contingency fee basis. If, for example, the case is only worth $9,000 and the lawyer takes a third of it, we are probably looking about a couple of hundred hours’ worth of work to collect $3,000 if you win. A lot of people do not want to pay for the work and a lot of attorneys do not want to accept $3,000 for $200,000 worth of work.
What Components Constitute A Viable Medical Malpractice Claim?
The components that constitute a viable medical malpractice claim are basically the same as negligence claims. The elements of the negligence claim is first of all the duty, which is usually not a problem because you have a doctor-patient relationship, which establishes the duty.
Then, you have to show that the treatment was below the standard of care which may, or may not, be a problem. If there are a couple of different ways of doing something and the doctor did it one way and it could have been done another way, it does not mean that it is below the standard of care. What it means is if the thing that he did is considered unacceptable by most of the medical community, then that is below the standard of care.
The third element is did the treatment cause the problem? The doctor can do something that is below the standard of care but if it has nothing to do with the bad result, it is as if he or she did something that should not have done but they got away with it because it did not cause the problem. The essence of that analysis is if you did or did not do something, would it have made any difference to the outcome if had been done it differently?
The last part of the claim is how much harm you suffered. If you have a sore finger for a couple of weeks, it is going to be worth much less than if you have severe disfiguring burns for years. The element of harm is at the end of it. When analyzing the case, you basically have to take these factors into account and see where we go from there.
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