Medical Malpractice FAQs

What does the legal term ‘medical malpractice’ mean?

Health care providers, including physicians, hospitals, dentists and nurses, have an obligation to do their jobs with reasonable skill. If any of these medical providers falls short and is negligent in the care they provide, this could be considered medical malpractice. An injured patient can make a legal claim for medical malpractice if the negligence was the direct cause of injury.

In a medical malpractice claim, the injured patient must demonstrate that the medical provider was negligent by comparing what the provider did with what a reasonable medical provider would have done in a similar situation. If any reasonable medical provider would have done better or avoided the mistakes made by the provider in question, this is negligence that can lead to a malpractice claim.

Some of the most common failures on the part of health care providers that lead to malpractice claims include:

• Improper handling of patient records
• Misreading test results, including CT scans, MRIs, X-rays or other lab tests or medical results
• A failure to recognize or respond to the symptoms a patient is exhibiting
• A surgical mistake, including operating on the wrong patient, operating on the wrong body part, or leaving a surgical sponge or tool inside the patient
• Failure to diagnose a medical condition
• Drug errors.

These are just a few of the many medical mistakes that can be made. In any case where a medical provider is negligent in a way that causes harm or that worsens a medical problem, the patient could be entitled to take action. The negligence doesn’t need to be the only cause of the harm, so long as it played a role in worsening the medical problem. Because it can be difficult to determine whether you have a medical malpractice claim, it is advisable to consult with an experienced medical malpractice attorney to evaluate your case.

How do medical malpractice attorneys evaluate a medical malpractice case?

At the Abelson Law Firm, our dedicated medical malpractice attorneys will schedule a free consultation in person or over the telephone. You can explain your situation, and our malpractice attorneys will help you to determine whether you might have a case. Our attorneys are experienced in medical malpractice litigation, which is a very complex and specific area of law, and our specialized knowledge can be useful in determining if you have a potential medical malpractice claim.

If our malpractice attorneys believe you may have a claim, it will be important to obtain medical records that detail your condition prior to, during and after treatment. All medical records should be reviewed as part of your malpractice claim, including details on consultations with care providers; information on medical exams and follow-ups; and complete investigations into the event that was potentially negligent. Typically, expert witnesses will need to be involved in evaluating your medical records and in proving that the doctor or medical provider who treated you was negligent.

When evaluating your case, our malpractice attorneys will also consider other outside factors to help determine what options you have. These factors can include state caps or limitations on malpractice awards; time limits for filing claims (called statutes of limitations); and the severity and lasting consequences of your injury. Every case is different, and these essential factors should be evaluated by a knowledgeable malpractice attorney in deciding how to proceed.

What indicates that medical malpractice has occurred?

There are certain indicators to be aware of that can suggest medical malpractice. For example, if the outcome of a medical procedure is dramatically different from what you were expecting, this could be a red flag that something went wrong as a result of medical negligence. For example, a person who has had a minor surgery but ended up with brain damage was possibly the victim of medical malpractice. If the provider cannot explain why your condition is worse or why your outcome was bad, this could be an even stronger indicator that an error was made.

Sometimes, other care providers may also give you information that can indicate malpractice has occurred. For example, a nurse or a doctor may make a statement about prior care you received that expresses criticism of what occurred. While you can’t repeat these statements as evidence when making a malpractice claim, they can let you know that you need to start looking carefully into the medical care you received.

I think I was the victim of medical malpractice. What should I do now?

If you believe you were the victim of medical malpractice, you should consult with an experienced attorney right away for guidance. Medical malpractice cases are so complex that it can be difficult to determine whether you have a claim unless you get expert legal advice. Consulting with an attorney promptly is advisable because you have a limited period of time in which to file your claim.

It is also important to speak with an attorney before discussing your suspicions with the health care provider you suspect of having made an error. In fact, you should never accuse the provider or insult him or her. Instead, you should politely request a copy of your medical records, which you can then have reviewed by an expert. If you are still being treated by the care provider whom you suspect was negligent, then you may wish to make a change or request a transfer to another provider.

Your first priority, in every case, should be getting the medical help you need and getting sufficient and safe medical care. Your second priority should be documenting every event that occurs so you have proof of the negligence and of the outcome.

Could a misdiagnosis be considered medical malpractice? 

Doctors aren’t expected to be infallible with every diagnosis, but they are expected to be reasonably competent in all aspects of medical care, including diagnosing medical problems. That means that a misdiagnosis could be a form of medical malpractice, although it is not in every case.

Typically, your doctor can be considered to be liable for malpractice based on a misdiagnosis if:

• The doctor failed to complete a medical history.
• The physician failed to recognize obvious or known symptoms of an illness.
• The doctor failed to recommend or administer appropriate diagnostic tests based on the symptoms you were exhibiting.
• The physician or any care provider misread the test results.

There are certain conditions that doctors may misdiagnose more than others and/or where a misdiagnosis can have more serious consequences. Examples include pulmonary embolisms, cardiac problems, cancer, fetal distress and meningitis.

In situations where your doctor misdiagnoses these or other illnesses, the key test of whether you will be able to recover compensation is whether the doctor’s failure led to a worse outcome and caused harm. Simply being frustrated or emotionally upset about a misdiagnosis is not enough to give rise to a medical malpractice claim.

How long do I have to file a medical malpractice claim?

The time limit for filing a medical malpractice claim is called the statute of limitations. States set their own time limits, and they are not uniform across the country. The time limits usually range from one to seven years; however, there may be special rules if the care provider was a public employee or affiliated with the government or a government agency.

While you may have up to seven years in some jurisdictions, it is advisable to bring your claim as soon as possible once you discover you have been the victim of malpractice. The more recently the malpractice occurred, the more evidence will remain of what occurred. Your medical malpractice attorney will be better able to gather evidence and information about recent events so that you can build the strongest case possible.

How can I prove that I was hurt by medical negligence?

In the vast majority of medical malpractice claims, you will need to have expert testimony to help you prove that you were the victim of malpractice. This is because these cases are highly technical and hinge on what an experienced physician or care provider would do, rather than what the average person would do. Only other doctors or care providers will be able to testify as to what a reasonable physician with your doctor’s background should have done.

The doctor you take action against will likely have his or her own medical experts as well, arguing that the doctor did not make a mistake. Many medical malpractice cases are essentially a “battle of the experts,” with the outcome of the case hinging on whether the plaintiff or the defendant has better witnesses. An experienced medical malpractice attorney can help you connect with the right medical expert.

If I signed a consent form prior to treatment, did I waive my right to make a malpractice claim?

Consenting to treatment is not a waiver of your right to bring a malpractice claim. When you sign a consent form, this is an indication that you have been told about the risks of the procedure and agreed to undergo the procedure or receive the treatment anyway. In general, except in extreme emergencies, you will need to consent prior to receiving any type of treatment. In fact, when you enter a hospital, you typically sign a blanket consent form giving permission for general treatments you will receive.

However, when you sign a consent form, the form does not provide consent to permit the doctor to make mistakes.

Is it possible to determine if my doctor has been a defendant in any prior medical malpractice cases? 

Many states maintain a database of medical malpractice information. Often, these databases are online and can be accessed by the public.

Unfortunately, unless the medical malpractice lawsuit is ongoing, you may not be able to obtain much information about it. Often, the information available about a physician is limited to situations where a physician or care provider has been disciplined by a licensing board. The website of the Federation of State Medical Boards, found at www.fsmb.org, can be used to find the medical licensing board in your state.

Can I get a copy of my medical records?

The law entitles you to copies of your medical records. To obtain your records, you will need to submit a written request to the facility where you were treated and/or to the doctor who treated you. When you submit your request, be sure to include your name (spelled correctly); your date of birth; any patient numbers assigned to you; and your Social Security number. Your medical records may not all be consolidated and it may be necessary to contact each service provider individually. You may also be charged a small fee to obtain copies of your records.

How much money could I recover in a medical malpractice lawsuit?

Each medical malpractice case is different, so it is impossible to speculate on how much you could recover in compensation unless you meet with a medical malpractice attorney to provide specific information about your case.

You can, however, generally expect to recover compensation for medical costs incurred due to the malpractice and for lost wages due to the malpractice. Non-economic or compensatory damages are available for losses such as pain and suffering and emotional distress, but some states have put caps on the amount of non-economic damages available.

When you do meet with an attorney, your medical malpractice lawyer can give you some idea about the ranges of jury verdicts that people have been awarded in cases similar to yours. However, because no two cases are the same, it will be impossible to assess exactly how much you can recover unless and until you reach a settlement with the defendant or a jury awards you damages.

To discuss your potential medical malpractice claim, contact us online or by phone at 202-331-0600 or toll free at 1-888-797-4242 for a free con