After a birth injury, new parents feel distressed and helpless at the possibility of the lifelong effects the injury may have on their child. What are your legal rights in such cases? Can you pursue a case against those responsible? And will a malpractice lawyer be necessary to file a claim? When Do Birth Injuries […]
Medical is simply defined as negligence by a medical professional. We trust our doctors and other healthcare professionals with our health and often our lives. We expect them to be at the top of their game at all times.
Doctors are people too, though, and people make mistakes. Medical mistakes have high stakes. Sometimes those mistakes are grounds for a lawsuit, but it can be difficult to know when that's the case. In some cases, you may need a medical malpractice lawyer to help you get the compensation you deserve.
What is Medical Malpractice?
Mistakes happen in hospital settings, and the costs can be deadly at times. Malpractice is where there was negligence as the reason for the doctor’s mistakes. When a physician makes an error that could have been avoided or is preventable, the patient is able to sue for medical malpractice and damages.
How Do You File a Medical Malpractice Claim?
Filing a medical malpractice claim is a process and has several steps. Negligence must be deemed “actionable”. That means that all the pieces must be present in order to make it a legitimate lawsuit for action to be taken.
Suing a hospital or planning to sue a doctor is no small order. In order for the lawsuit to be deemed legitimate, it must have three components.
First, there must be a duty owed to someone. In the case of medical care, the duty is to have quality medical care by a professional.
Second, there must be a breach of that duty. This is where the mistake comes into play. A mistake that costs the health or life of a patient could be considered a breach of medical duty.
Lastly, there must be a breach of that duty that results in harm or damage that is proximately caused by that breach. Proximate cause essentially asks the question of whether the damage or harm to the patient would have occurred or not, had there not been a breach of duty.
The last component is where things get a little tricky, and where the proof of malpractice comes into play. If the injury or death would have occurred regardless of the alleged malpractice, then there is no basis for a malpractice lawsuit.
The Duty of Care
In medical malpractice situations, the duty of care must be proven first. A doctor or medical professional must first have a duty of care to the patient before it can be decided whether or not they fulfilled that duty.
Once a doctor volunteers their services to help someone who is injured, they automatically become liable for any injury or death that occurs while they are providing the medical assistance, or as a result of it.
Once the doctor has volunteered their services, a doctor-patient relationship has begun. In the United States, this relationship means that the doctor has the affirmative duty to assist for the duration of the time needed.
Duty of care specifically means that physician must provide care with the “degree of skill, care, and diligence as possessed by, or expected of, a reasonably competent physician under the same or similar circumstances”.
Laws About Malpractice Claims
There is a belief that malpractice lawsuits are actually the reason for the incredibly high medical cost in the United States. The country has established tort reform, which means that changes are being made or have already been made to limit who can sue and who can be sued.
Research has shown that doctors fear medical malpractice lawsuits so greatly that they often go above and beyond what is needed in terms of ordering more tests and using expensive equipment to ensure that all their bases are covered when it comes to duty of care. This is known as “defensive medicine”, and it’s grown more and more popular in recent years.
Over half of the states in the United States have put limits on the amount someone can be paid as awards for damages, and almost every state in the nation has implemented a statute of limitations of just two-years to prevent excessive amounts of malpractice lawsuits.
Wrongful Death Lawsuit
In the event that a medical situation goes beyond the point of return and the patient unfortunately dies, there may be a basis for a wrongful death lawsuit. These claims are brought against a person who has caused someone else’s death, usually through negligence or intentional actions.
A wrongful death lawsuit is brought against the person allegedly responsible for another person’s death, and the claim is made by the deceased person’s estate, or by the people closest to the deceased.
In order for a defendant to be found guilty and held liable for a wrongful death, you will want to have a wrongful death attorney. These attorneys specialize in these cases and know what it takes to fight for you and your family.
The process for proving a wrongful death claim is the same as proving negligence in a medical malpractice lawsuit. All the same, qualifications must be met, in addition to the requirement that the person must have lost their life as a result of the malpractice.
Wrongful Death in Philadelphia
In Philadelphia, all the same standards for medical malpractice and wrongful death lawsuits are the same. The types of damage that can be covered in a wrongful death suit include but are not limited to:
- Loss of anticipated future financial earnings the deceased would have provided to their family
- Any lost financial benefits of the deceased, such as pension or retirement benefits
- Medical bills and funeral costs associated with the deceased
The suffering of the survivor of the decedent including pain, suffering or mental anguish
- Loss of protection, care, and companionship
- Punitive damages, put in place to punish the guilty offender for their actions
- In addition to nursing, hospice, or other medical expenses
Making sure that the family is compensated fully for all of the expenses above is a long and tiresome process and one that you should not go about alone. Wrongful death lawsuit lawyers are trained professionals who have experience with these types of cases and can advocate on your behalf to ensure you have the best possible representation for your case.
Birth-Related Medical Injuries
Birth-related medical malpractice can include a multitude of things. Birth-related malpractice in Philadelphia includes negligence by medical staff resulting in injury to the mother or child during pregnancy, labor, or delivery. Other types of malpractice include wrongful birth.
Wrongful birth is when parents are not notified of known birth defects that may have caused the parents to avoid or end a pregnancy if they had known about them.
A wrongful pregnancy is when the parent's attempt to end or avoid a pregnancy has failed. These are all different claims with their own rules and guidelines. If any of these situations pertain to you, you should seek a Philadelphia birth injury lawyer.
Birth-Related Injuries to the Infant or the Mother
Sometimes, the medical malpractice of a doctor causes the infant, mother, or both of them to be injured in the process of childbirth. Two of the injuries that could be considered medical malpractice during the birth process include negligently failing to monitor the baby’s oxygen intake, which could result in serious injury or death of the infant. Another example is the mother’s blood loss being monitored negligently.
If the infant is injured in the process of childbirth due to negligence, the parents must bring the lawsuit on behalf of the infant. If the mother is injured, she will bring the claim herself. There is even a possibility to sue for emotional pain as a result of an injury to the infant due to medical malpractice.
Wrongful birth suits are essentially the parents making a claim against the doctor, stating that the doctor should have warned the parent’s about birth defects early enough in the pregnancy for the possibility of terminating the pregnancy.
The claim can be based on negligent genetic testing before the child was even conceived, or it can be based on the lack of detection of medical and physical impairments early enough in the pregnancy.
In these cases, damages can be paid to cover the cost of medical expenses resulting from the birth defect and educational therapy if needed. Parents often argue that had they known about these defects earlier, they would have had the opportunity to make a choice based on if they could financially afford to raise a child with serious birth defects. This is why those medical expenses could be covered as a result of the lawsuit.
In wrongful pregnancy cases, parents may sue a provider if the attempt to avoid pregnancy, either through means of abortion, sterilization, or pregnancy testing, failed because of the negligence of the medical professional. In these cases, the child is healthy but the parents sue because it was an unwanted pregnancy that they tried to avoid.
Most states are pretty picky about what damages they allow to be paid in this case. Some states allow for medical expenses of the birth itself to be covered, but not all states allow for compensation for the pain and suffering of raising a child that was a result of an unwanted pregnancy. There are some cases though where parents are able to receive compensation for the cost of raising a child that was a result of an unwanted pregnancy.
In any of these cases, the process is incredibly complex and will best be taken care of by a birth injury lawyer.
How Much Does It Cost To Hire A Medical Malpractice Lawyer
Most lawyers who provide representation in cases of medical malpractice operate under a contingency fee. A contingency fee is a portion of the award or settlement won in a case. If the patient does not receive a settlement, or if the patient loses the lawsuit, the lawyer never receives payment either.
The contingency fee amount varies from state to state and among law firms and attorneys, but typically you can expect to pay your attorney about 33% of the award or settlement you receive as a result of winning the medical maltreatment case.
If the case goes to trial, the contingency fee usually goes up substantially, by about 7% or so more, to account for the additional fees and time that the lawyer will spend in court and preparing for your case.
There are some expenses to consider, like who will pay to cover the costs of expert witnesses that may be called to the stand on your behalf, any court filing fees that need to be paid, or the costs to obtain any detailed medical records from the hospital where the medical malpractice allegedly occurred.
While this can be a costly process, the settlements that you can receive with the help of professional council from a medical maltreatment lawyer are much higher than if you tried to sue the doctor on your own. Trying to do this process on your own is incredibly difficult if not impossible. The investigations, burden of proof, and piles of paperwork required is excessive and sometimes difficult to understand. Having a professional help you with all of the above is your best bet.
In the United States, the average settlement from a medical maltreatment lawsuit is somewhere between $300,000 to $380,000. 33% of that may seem like a hefty price to pay, but even with just the other 67%, you’re getting quite a large sum of money that will greatly help toward expenses.
Always Seek Help for Medical Malpractice Lawsuits
When you are faced with the incredibly difficult reality of medical malpractice and feel that you have a case deserving of compensation for negligence, always seek help from a lawyer who specializes in medical malpractice cases. It’s important to find the right attorney in your area who can get the job done. If you’re dealing with a medical malpractice case in Philadelphia, contact a qualified attorney right away to help you with your case. We Win or It's Free!
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