Medical Malpractice Info

medical malpractice

What are most medical malpractice cases related to?

The most common reasons for medical malpractice claims are:

  • Surgical errors

Of the more than 234 million surgeries that take place each year, there are more than 4,000 preventable errors. These are referred to in medical circles as “never events” because of the universal professional medical agreement that they should never occur.

  • Misdiagnosis
    A study confirmed that each year, about 12 million U.S. adults seeking medical care are misdiagnosed. That’s 1 of every 20 people who visit the doctor.
  • Medication errors
    According to the Institute of Medicine, seemingly innocuous mistakes with medication hurt about 1.5 million people each year. Whether it’s the wrong drug, the wrong dosage, a bad combination with other drugs or bad reaction, the frequency of medication errors is definitely cause for serious concern.
    The key to guarding against medication errors is to make a point of being absolutely clear with doctors and other medical staff about specific instructions for taking the medication and how it may impact the effects of other medication you’re already taking.

How many medical malpractice lawsuits go to trial?

doctor, jawbone, xray, malpracticeIt typically involves a defendant (hospital, doctor, etc.) agreeing to at least some or all of the claims from a plaintiff (you) rather than taking their chances in court.

Among the benefits to settling is time, money and peace of mind. Like most things, there are potential downsides to settling a case as well. The can include:

  • Agreeing to a potentially smaller award than what would have possibly been awarded by a jury
  • Removing the risk of further liability on the part of the defendant

While each case is different, it’s common for some medical malpractice cases several years to be resolved. In fact, one study carried out by a Johns Hopkins affiliated hospital found that the average wait time for the cases they studied was 4.5 years.

Settling often gives family members and the victim more time to deal with the immediate health issues rather than having to prepare for legal proceedings.

Additionally, once a settlement is reached, the family and victim will have the financial resources in a timelier fashion, which is crucial once the medical bills begin to rack up.

Emotionally, going to trial can be a physically and mentally draining.

It’s definitely in your best interest to have a lawyer on your side before taking any step towards a settlement. Medical law is an especially complex matter, and a lawyer specializing in this field will most likely have a thorough understanding of whether or not a settlement is in your best interest.

How do medical malpractice lawsuits work?

  1. After realizing that you may have been the victim of medical malpractice (in many cases, the awareness of possible medical malpractice is not known until long after the suspected malpractice has occurred) is to talk with a lawyer specializing in medical malpractice.As stated above, medical law is particularly complex field, and only a lawyer specializing in medical malpractice will have the expertise needed to determine the strength of your case and how to guide you throughout the process.In fact, it’s strongly encouraged that you interview several medical malpractice law firms before choosing.
  2. After you’ve selected a medical malpractice law firm, your lawyer will then request your medical records for examination.
  3. Based upon what’s found in the medical records, your lawyer will file the complaint and interview medical experts for their input on the case.Just about all medical malpractice cases require the input and testimony of medical experts. The reason for the input of medical experts is the complexity of medical procedures and accepted standard of care.
  4. Through discovery, your lawyer will gather information, documents and depositions from the opposing side.
  5. Settlement negotiations then begin in earnest between your lawyer and the opposing side.
  6. If no agreement can be reached during the settlement negotiation, a trial will then begin.

How a Medical Malpractice Jury Trial Works

Both attorneys and the judge have the option of eliminating potential jurors who    are thought to be biased. Once a full jury is selected, they’re sworn in by the judge, who also provides them with rules related to the trial and court decorum.

  1. Trial kicks off in earnest.
    Both attorneys will introduce various pieces of evidence to support their claims. The plaintiff’s attorney goes first in calling their witnesses. It’s typical for you (the plaintiff) to be called as a witness.

Others likely to be called include your spouse or other family members as well as healthcare professionals.

After each witness has been questioned by your attorney, the defendant’s attorney will get their turn in cross-examination. Remember, the defense attorney’s goal is to bring about testimony that takes away from your case.

After all the witnesses for your side have been called and cross-examined, the defense attorney will call theirs; each of whom will be cross-examined by your attorney.

  1. Closing arguments.
    Because the burden of proof is on you, the plaintiff, your attorney will open and finish the case with a closing argument. The defense attorney will make a closing argument as well, but will go before your attorney.
  1. Selection of jurors.
    This part of the process is crucial because its purpose is to determine if any of the prospective jurors are biased or can’t be trusted to fairly handle the case details. To decide upon jurors, they are asked about their backgrounds and beliefs.
  • The jury’s decision.
    After closing arguments have been made, the jury will move to the jury room to review aspects of the trial. It’s not uncommon for them to send written requests to the judge if there is confusion.It can take minutes or days for most juries to reach their decision. Most commonly, their decision is reached inside a couple of hours.Once they’ve reached a verdict, they’ll notify the judge and make their way back to the courtroom. The judge will normally read the verdict on behalf of the jury.Rather than pronouncements of “guilty” or “not guilty,” the verdict will be presented in question and answer format. For example, “Did the negligence of the defendant cause the injury in question?” If the answer is “yes,” you win.

Then, the jury will answer additional questions about what to award for damages.

How are medical malpractice awards determined?

Because all cases are different, there’s no way to predetermine exactly how much you could be awarded. Your lawyer, however, will consider a number of things before determining what’s felt to be a reasonable amount.

These factors include:

  • Strength of the evidence
  • Costs of past and future medical treatment
  • Loss of earning potential
  • Physical pain and suffering

This information from Becker’s Hospital Review provides a state-by-state breakdown of medical malpractice award averages.

Defining the Damages
Typically, damages in a medical malpractice cases come in the form of compensation – or money. There are two types of damages: economic and non-economic.

Economic damages are fairly easy to calculate, as they include losses like medical bills, lost wages, costs of medicine and other treatment (therapy), etc.

The non-economic damages are a bit more difficult to nail down as they address issues like pain and suffering, loss of enjoyment of life, etc.

Calculating Costs for Earning Potential (Future Loss of Income)Putting a figure to the economic damages can be a little hairy when considering the decrease in the victim’s earning potential.

If the victim was unemployed at the time of the incident, the defense attorney will likely make a strong argument that there’s no claim for lost earnings.

It’s much easier to calculate the earning potential of a salaried person than someone self-employed. 

Determining Costs for Past and Future Medical Treatment
Because cases involving medical malpractice often result in victims requiring specialized medical care and treatment for the rest of their lives, a medical economist specialist will calculate the anticipated costs of providing care, and provide them to a jury.

Damages in the millions of dollars are common in cases involving serious injuries.

What are medical malpractice caps?

There are a host of states that have placed caps on the amount of damages that a victim can recover in a medical malpractice case.

doctor, computer, diagnosis

While some place a cap on all damages, others do not. For example, California has set a $250,000 limit on non-economic damages but no cap on economic damages.

States that have no limits on what can be awarded are:

  • Alabama
  • Arizona
  • Arkansas
  • Connecticut
  • Delaware
  • District of Columbia
  • Iowa
  • Kentucky
  • Minnesota
  • New Hampshire
  • New York
  • Pennsylvania
  • Rhode Island
  • Vermont
  • Washington
  • Wyoming

Who pays for medical malpractice?

During a medical malpractice case, the physician is often little more than a spectator. The real battle is between the lawyer and the physician’s insurance provider.

Role of Insurance Company in Medical Malpractice

Even though the physician or health care facility may be named as defendants, the insurance carrier will be the ones arguing in the courtroom and will be the party responsible for paying the judgment. The physician is typically relegated to taking part in areas such as discovery and depositions.

The Physician WILL Pay In One Way or Another

While they do not actually pay to cover any judgments, the physician is most likely paying a good bit of out of pocket money – often in the tens of thousands annually – for medical malpractice insurance. If they are found to be responsible for malpractice, their rates will most likely increase substantially.

When should I file a medical malpractice lawsuit?

If you feel that you have been a victim of medical malpractice, time is of the essence. That’s because there are deadlines in place for filing medical malpractice lawsuits.

Specifically, there are two types of deadlines: notice requirements and statutes of limitations.

Most states have a firm statute of limitations regarding medical malpractice claims. In some – but not all of them – the clock starts running on the date of the alleged malpractice, not the date of when you discover that something wrong occurred.

For example, in New York, you have 2 ½ years from the date of medical malpractice to file a suit for damages, but in Alabama, the time limit is 2 years from the date of the malpractice or 6 months after learning of the malpractice.

A tight window limiting the time for when a medical malpractice case can proceed is, obviously, especially troublesome as it can take months or years before someone realizes they’ve been a victim of medical malpractice.
By that time, the statute may have long expired well before the victim even became aware of the mishap.

Discovery Rule
The states that allow the clock to begin running after you become aware of the alleged medical malpractice are following a discovery rule. The sole purpose of the discovery rule is to give potential victims of medical malpractice a bit of leeway to file their claim even though the standard statute of limitation has expired.

Use of the discovery rule is for reserved for only patients who truthfully did not know and could not have reasonably become aware of their doctor’s medical malpractice.

How many medical malpractice lawsuits are filed in a year?

Each year, about 85,000 medical malpractice lawsuits are initiated annually, even though  the actual number of medical injuries estimated to be about one million per year

A study published in the JAMA Internal Medicine, a publication of the American Medical Association, has found that while the rate of medical malpractice claims in the U.S. has dropped, the average award for successful claims has jumped by nearly 23%.

Are medical malpractice settlements taxable?

Section 104 of the U.S. tax code houses all the “whereas” and “therefore” legal tax requirements related to personal injury awards and settlements.

Up until 1996, the majority of settlements and awards from personal injury cases were considered to be tax-free. Until then, just about anything – emotional distress, defamation, invasion of privacy, etc. – qualified as being tax-free.

But changes made in 1996 made the distinctions that only awards or settlements for physical injuries or physical sickness would qualify for the tax-free status.

Simply put, personal injury awards or settlements meant to compensate you for things like medical bills, lost wages, loss of consortium, emotional distress, pain and suffering and lawyer fees are tax-free.

The physical sickness qualifier refers to instances of sickness being the claim for your injury. For example, if you became sick after being negligently exposed to a germ, damages you recover from that illness would be tax-free.

Exceptions That Will Make Your Award or Settlement Taxable
There are a few things that can make your award or settlement taxable.

  • Interest on the award or settlement
    In most states, there are court rules that will add interest to the verdict for the entire time the case has been pending.For example, let’s say you filed a personal injury suit on Jan. 1, 2015. You win the case on Feb. 3, 2016 but the defendant appealed and didn’t pay you until Dec. 3, 2016. You’d receive interest on the nearly two years of the amount of the unpaid verdict.
  • Awards or settlements for emotional injury only
    Again, the key is that your award or settlement will remain tax-free as long it arose from being physically injured or becoming physically sick.

If you file a claim for emotional distress but haven’t experienced an actual physical injury, your award or settlement will be taxable.


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