Financing the Future
Ronald R. Gilbert
Selecting an Attorney
Some Answers to Commonly Asked Questions
What is medical malpractice?
Medical malpractice is simply a health care provider not
doing what he is supposed to do or doing what he is not supposed to do. The term is used
to indicate medical negligence by a health care provider that causes an injury. The theory
of negligence in these cases is no different than that of an automobile accident caused by
someone who was not necessarily careful at that moment in time. Each state has a statute,
case law, or jury instructions which define what the standard of care should be, how the
proof of skill or reasonable treatment is to be presented, and whether it is to match
local standards or national standards. In most jurisdictions you and your lawyer must
obtain an opinion, often in writing, from an expert in the same field of expertise as the
potential defendant before filing the claim. In some jurisdictions, courts have even
limited the requirement of the expert to be from the same state as the potential
defendant, although this is rare. In most jurisdictions a written report or affidavit from
your expert must be filed either at the time the lawsuit is filed or within a short time
after the filing of the lawsuit.
The negligence in medical malpractice cases can occur in a variety of situations including
but not limited to:
There may be "medical malpractice" by a delay or
failure in diagnosing a disease; or
A surgical or anesthesia related mishap during an operative
procedure could constitute "medical malpractice"; or
Malpractice may involve the physician's failure to gain the
informed consent of the patient for an operation or surgical procedure; or
A physician who has made the correct diagnosis, may
thereafter commit malpractice by failing to properly treat the disease process;
Misuse of Prescription Drugs or a Medical Device or Implant
can also be medical malpractice, or failure to order all necessary tests.
Many think the term "malpractice" applies only to
medical doctors, yet there are other health care providers, such as chiropractors,
therapists, nurses, psychologists, and dentists who may also be sued for medical
malpractice under certain state laws.
When should I suspect that medical malpractice may have occurred?
Probably the most likely indicator that medical malpractice may have occurred is the
dramatically different or unexpected result of treatment or surgery. An example would be
serious brain injury following relative minor surgery.
Another telltale sign is the failure of the provider to give a good explanation for a
worsened condition of the patient or of the sudden death of the patient.
There are also instances in which nurses or doctors or other providers make critical
statements of prior care. These statements sometimes turn out to be accurate indicators of
medical malpractice even though they may never be repeated in a legal setting.
In order to accurately determine if there is "medical
malpractice" it is necessary that a medical expert be retained to consult with the
plaintiff's attorney. This expert should be well qualified to give a medical opinion, and
is therefore frequently board certified in the relevant field of medicine. If, after a
thorough review of the pertinent medical records, the medical expert concludes "with
reasonable medical certainty that the action or inaction of the defendant physician was
the cause of damage to the plaintiff," it is appropriate to file suit against the
Can I get my medical records?
Yes. Do not take "no" for an answer from anyone. You are entitled to copies of
each and every piece of medical information which concerns you anywhere in the U.S. You
have to ask for them, making it clear that you know you can get them, and you often need
to insist and accept no excuses.
The request for medical records is made at your doctor's office for his office notes,
reports, and test results, and at the medical records department of your hospital for all
events happening while you were a patient therein. They may properly request that you sign
a release of information form which they will provide for you. There may be a copying
charge. If you want to present your records for a complete malpractice evaluation, or if
the records are being collected in preparation for litigation, be sure to specify what you
want. Do not accept summaries that the health care providers choose to give you.
Specifically request, "Each and every page of medical record information available
including, but not limited to: Office notes, discharge summaries, history, physical exam,
progress notes, operating reports, operating room records, anesthesia sheets, consultation
requests and reports, all laboratory and imaging results, memos, letters, insurance forms,
bills, and all other written records concerning me in your possession."
How does a malpractice case proceed?
Filing suit begins the legal advocacy process which may
cover a period of several years. During this period both parties exchange a series of
documents. In the first stage, the legal pleading stage, the parties set forth with
precision their legal theories. In the second stage called, the discovery stage, the facts
to support the various legal theories are developed. If the parties are not able to settle
their differences the case, now in its third stage, will go to trial before a judge and
How do I find a lawyer to help me decide if I have a case?
You can obtain help by emailing the professional in the area
of law on this web site. He can help you regardless of the state in which you are located.
He has co counsel agreements with competent lawyers in the area of malpractice no matter
where you may be located. There will be no charge for helping you investigate your
potential claim. If your claim is supported by an expert as described above, your case
will be handled on a contingent fee agreement that meets the ethical and legal
requirements of your state. Some states have varying requirements but the most common
contingency fee agreement is one third of the gross recovery plus reimbursement of costs.
Even if co counsel is needed in your state, you will only pay one attorney fee.
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