Common Pitfalls In Medical Malpractice Cases
If you were injured from what you believe was doctors error
, you need to consult medical malpractice lawyers, who will review the evidence and tell you if your case has a chance of success. Listed below are common pitfalls of medical malpractice
cases which may cause your lawsuit to be dismissed:
1. Not all bad results are medical malpractice
Physician must deviate from the acceptable standard of medical care, and his negligence must cause a serious injury in order for the malpractice claim to have merit. A doctor may fail to diagnose a condition (for example high blood pressure), but if the condition is eventually identified, patient is treated and shortly thereafter get better, while the physician is at fault; this may not be medical malpractice. The issue or recovery, extent of the injuries and length of disability play an important role in maintaining a successful medical malpractice lawsuit. For example, if the patient arrives to a hospital with a fractured hip, which is improperly operated on, but the following day, undergoes an additional operation, where the fracture is finely set in place, most
medical malpractice lawyers will decline to accept this case, since the possibility of recovering substantial damages is remote and the costs of litigation, will outweigh the result.
2. Failure to have the medical malpractice case reviewed by another physician or expert.
The courts now require that the attorney, filing the summons and complaint on the clients behalf in a medical malpractice cases, include whats called a Certificate of Merit, stating that he or she consulted with a physician or expert, concerning the pluses and minuses of the case, including doctors negligence, and believes that the case has merit. An experienced medical malpractice law firm will make sure to use due diligence in filing the necessary paperwork in court when commencing the lawsuit, and will retain contact with the consulting physician to possibly use him later on as expert witness, to testify at trial.
3. Failing to file the lawsuit within the applicable statute of limitations
Each state has its own time limits for when the plaintiff or his estate must commence an action against the doctor. Should the lawsuit be started past the allowed time, the complaint will be dismissed. In New York there are different statutes for medical malpractice and dental malpractice cases, wrongful death cases, as well as actions against public hospitals.
4. Failure to obtain all of the patients medical records
If patient is suing a doctor for negligence, very often his entire medical record, including reports from years back, come into play. The usual argument by the defense is that the condition was pre-existing and not the result of doctors mistake or omission. The counsel for the defendant will pour over hundreds and hundreds of pages of plaintiffs records to try to find the way out of the lawsuit. Making sure that an attorney has your entire medical record will prevent surprises later on, since your counsel will be prepared to counter any argument that the doctors attorney will make concerning the cause of your injuries.
5. Failing to retain expert witness to testify on plaintiffs behalf
Medical malpractice cases often succeed or fail based on the testimony of an expert witness, who testifies as to whether the defendant doctor deviated from the accepted standards of care. Such experts are expensive to retain, but are vital to the case. Without their statements the jury only hears the defendants side, and will likely rule in his favor.
It is critical to hire an experienced and aggressive malpractice lawyer who knows what constitutes medical malpractice and has the experience and skill to represent you in a personal injury case. Your case should not be the lawyer's learning experience. Ask the right questions and you can judge whether your medical malpractice lawyer has the ability to handle your case.
by: Frank Martyn
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