There Is More to Med Mal than Just Filing the Lawsuit

Added: (Fri Feb 26 2010)

Pressbox (Press Release) - Despite what people may think, an individual who feels they are the victim of med mal doesn’t just tell an attorney to file a lawsuit. There’s more to med mal than meets the eye.

“Knowing that medical negligence may have been committed is only about one-half of the puzzle that makes up the filing of a medical malpractice lawsuit. It doesn’t just start with a recounting of horrible medical details to an attorney who files a suit and the end result is a damage award. If that were the case, there would be a whole lot more medical malpractice lawsuits in the US than there are already today. The main thing about medical malpractice lawsuits is the burden of proof, which rests with the patient to prove the negligence,” indicated Michael Smith, an Arkansas personal injury lawyer who practices in Little Rock, Arkansas.

In most instances, malpractice typically refers to medical malpractice, however for all intents and purposes it may also refer to professional negligence that deals with dentists, nurses, accountants and even lawyers. To put this into perspective, just about 73% of med mal cases involve a medical error of some kind.

Generally speaking, what happens in the event of a medical error that was caused by the negligence of a medical professional, the survivor or plaintiff will speak to a dedicated medical malpractice attorney.
If the patient died as a result of a medical error, the family usually sees about filing a lawsuit. “It’s not just people who may be sued; it’s medical corporations, clinics and medical facilities,” Smith explained.

“Just getting back to the burden of proof issue which lies with the plaintiff; this is roughly a 51% burden to prove. Although legally speaking it doesn’t actually work that way, it’s a good example to use to explain what a patient must do to prove medical malpractice,” said Smith. Typically, most med mal cases boil down to the amount of compensation required for the victim to be able to carry on with something closely approximating their “normal” life. If their whole life was catastrophically turned upside down, a med mal suit is about compensation to ensure they have what they need to survive.

In order to file a med mal lawsuit, there are four things a plaintiff needs to establish. The first one is that the hospital or doctor actually treated them. The reason for this is that once a doctor takes over the care of a patient, they are then responsible for their health and well-being. “If that is successfully proved, the next item is that the accepted standard of care for medical care in the case of the plaintiff was breached. This means that in a majority of cases, there is a certain accepted standard of care in handling a patient. If that standard is not lived up to, ignored or forgotten, this may end up as testimony against the medical professional later,” Smith outlined.

“Once a breach of duty has been determined, it must then be shown that the breach caused the patient’s/plaintiff’s injury or injuries. Basically this is the cause and effect argument, meaning culpability is linked directly to an action and result,” he advised. “And, once these three things have fallen into place, the last one is damages being assessed. This may mean mental, physical, emotional, financial, and in some instances, punitive damages if recklessness is involved,” suggested Smith.

If all these various elements are in place, usually a case may proceed to court at which point expert witnesses usually come into play. If the case is a win for the plaintiff, all is well that ends well. If not, the plaintiff has the option to appeal.

Not knowing where to turn when a medical error has occurred is a very common problem. If medical negligence is suspected, it is best to speak to a seasoned medical malpractice attorney and get to the bottom of the story as quickly as possible. Waiting too long may toss the case out of the ballpark for filing if the statute of limitations has run out.