FREQUENTLY ASKED QUESTIONS ABOUT
MEDICAL MALPRACTICE
What is medical malpractice?
What is negligence in a medical malpractice setting?
How does our firm determine whether to file a medical malpractice
lawsuit?
How do you select and find experts?
What is causation?
What damages does the law allow in medical malpractice cases?
What are economic damages?
What are noneconomic damages?
What are punitive damages, and can they be recovered in medical
malpractice cases?
I got worse after seeing my doctor, and I think my doctor made
a mistake. Do I have a case of medical malpractice?
Explain what you will do if I consult with you, and how much
it will cost.
What considerations are taken into account in determining whether
you will file a case?
What is the possibility of a quick settlement if my doctor made
a terrible mistake?
How do I know that you will do a good job on my case?
What are your fees?
Q. What is medical malpractice?
A. When injury occurs as a result of negligence by a health care provider, a medical malpractice case may be possible. “Health care providers” includes both people and institutions. In addition to medical doctors and osteopaths, the term includes podiatrists, optometrists, nurses, dentists, psychologists, physical therapists, and others with a license to practice within their particular state. Medical care facilities like hospitals or nursing homes licensed by the state are also health care providers.
Q. What is negligence in a medical malpractice setting?
A. In a malpractice case, the jury is instructed that negligence means the failure to use that degree of skill and learning ordinarily used under the same or similar circumstances by members of the defendant’s profession. This must be proven through testimony of expert witnesses who establish the applicable “standards of care” and explain how the health care provider deviated from those standards. For example, physicians have a duty to take an adequate medical history, to do a proper examination and order necessary laboratory studies, to properly interpret and advise about test results, to engage in thoughtful differential diagnosis of signs and symptoms, to disclose significant risks and obtain informed consent from patients, to give treatment only for proper medical reasons, to prescribe correct medications and provide proper follow-up, to obtain appropriate consultations, and to provide patients with current therapy and treatment options, etc.
Q. How does your firm determine whether to file a medical malpractice lawsuit?
A. First, we must determine if we can meet our burden of proving three things:
- that the health care provider was negligent
- that there are substantial damages
- causation, meaning that the specific negligence caused the substantial damages.
Q. How do you select and find experts?
A. “Experts”, in court, are people who are specially qualified by experience or training and possess knowledge on matters not commonly understood by the general public. The law permits such persons to give their opinions in malpractice cases. In medical malpractice cases, there are often numerous experts needed on a variety of issues, including negligence, the nature and extent of the damages, and the causal link between the negligence and the damages. Our firm brings the highest possible caliber of expert witnesses to each case.
A. “Causation” is an important legal principle
which means the injured party has the burden of proving a direct connection
between the negligent act of the health care provider and the injuries and
damages claimed. Many malpractice cases are defended on the ground that there
is no causal relationship between the claimed damages and the alleged negligence.
Consider, for example, a case claiming negligent failure to diagnose lung cancer
resulting in a delay of a year or more in treatment, where the patient eventually
died. The defense will be that there was no causal relationship between the
year’s delay and the death. The physician’s defense could be that the
original cancer was not treatable in the first place, so the delay in starting
treatment, while negligent, was of no causal consequence. The important point
is that the plaintiff in a medical malpractice case has a specific burden of
proof of causation, i.e., that the alleged damages were “probably” caused
or contributed to by the alleged negligence.
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Q. What damages does the law allow in medical malpractice cases?
A. Generally, the plaintiff is to be reasonably compensated for all injuries and losses resulting from the occurrence in question. Damages are split into two general categories: economic (past and future), and non-economic (past and future).
A. Economic damages include almost anything that can be
replaced with money. This category of damages is very broad and will be variable
from case to case. Economic damages always include the reasonable expenses
of necessary medical care, hospitalization and treatment; loss of income or
earning capacity; loss of time; the reasonable value of services provided by
family members for free; the cost of hiring others to perform normal household
duties; and the loss of the injured person’s services to his or her spouse.
These losses are projected into the future on the basis of medical and economist’s
testimony regarding continuing disability and the cost of future needs or losses.
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Q. What are non-economic damages?
A. Noneconomic damages are those losses which cannot be quantified in a dollar amount. The most prominent examples are pain and suffering, mental anguish, inconvenience, physical impairment or disability, disfigurement, and loss of enjoyment of life. The importance of categorizing damages as economic or noneconomic lies in the fact that noneconomic damages are sometimes limited under some states’ laws.
Q. What are punitive damages, and can they be recovered in medical malpractice cases?
A. Punitive damages are not based upon the severity of injury to the plaintiff, but rather upon the need to punish the defendant and deter others from engaging in like conduct. While negligence by a health care provider will entitle the injured party to compensatory damages, both economic and noneconomic, negligent conduct does not subject the defendant to punitive damages. Before punitive damages may be awarded, the plaintiff must prove that the defendant acted in a “wanton or intentional” way, which includes the “reckless disregard of a known danger” to the plaintiff’s health and safety. This must be proven by clear and convincing evidence. Punitive damages are extremely rare in medical malpractice cases, but available in appropriate circumstances, in some states.
Q. I got worse after seeing my doctor, and I think my doctor made a mistake. Do I have a case of medical malpractice?
A. Most people who come to us have both a poor treatment outcome and an unsatisfactory explanation of the reasons (or no explanation at all) from the health care provider. A poor outcome, of itself, is not evidence of medical negligence. An investigation of the true facts is necessary before we can say if you have a case. There are many explanations for poor outcomes unrelated to negligence. Sometimes conditions are not easily treatable and treatment simply fails. Doctors are not guarantors of results of even the best therapy. Sometimes treatment, like surgery or chemotherapy, carries a risk of complications, like infection, for example. If a person has been properly informed of the risks, and has given consent, health care providers are not liable for the known complications of treatment. Where more than one treatment option is available and acceptable, and the option chosen either does not provide a cure or causes a complication, the health care provider is not responsible. This is called an error of judgment, and is not negligence. As mentioned earlier, in some cases, the health care provider may, in fact, have been negligent, but the negligence may not have caused significant injury, and we might not recommend that a case be pursued. There are also some cases where there is clearly negligence that caused injury, but the damages are not sufficiently severe to justify the response of a medical malpractice case.
Q. Explain what you will do if I consult with you, and how much it will cost.
A. First of all, we will not charge you for any of the time we spend visiting with you or for the cost of investigating your case. We only earn a fee if we win a recovery for our clients. We start with an interview to determine the facts as you know them, and make a judgment about whether the case is one which falls within our expertise and interest. The ensuing investigation begins with the collection of all pertinent medical records directly from the health care providers. We ask you to sign releases authorizing us to obtain these records. We then review and analyze the records to determine exactly what happened, and then research the medical literature to identify questionable areas of medical practice. If we believe there is a strong probability that medical malpractice occurred, we will submit your records to appropriate experts for review, asking them for their opinions on the issues of negligence, damages and causation. This review can be quite expensive and time-consuming. If, after consultation with experts, we believe that we can satisfy our burden of proof, we recommend that the case be filed.
Q. What considerations are taken into account in determining whether you will file a case?
A. There are legitimate and meritorious cases of medical
malpractice which we do not take as a matter of firm policy. We try to balance
the probable result of a case, either by settlement or by jury verdict at trial,
against the cost of obtaining that result. Medical malpractice cases are extremely
time-consuming, and absorb a tremendous amount of our firm's resources. We
handle medical malpractice cases by a “team” approach, usually involving
a principal attorney, an associate attorney, a paralegal, and one or more secretaries.
In addition to our time and resources, medical malpractice cases have a high
out-of-pocket cost for experts, depositions, travel, research, trial exhibits,
and many other things. As previously mentioned, in all cases, we must determine
if the matter is “economically feasible”. We do not handle cases where
the time, resources and expense at risk outweigh the probable result we can
obtain on behalf of our clients.
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Q. What is the possibility of a quick settlement if my doctor made a terrible mistake?
A. In our collective experience,
quick settlements can occur, but almost never in amounts that are realistic
or reasonable. If you are willing to deeply discount and compromise your
claim, there are health care providers and insurance carriers who will be
glad to buy you off very cheaply. If you want a settlement that is fair and
reasonable, do not expect that to happen quickly. Health care providers are
reluctant to admit mistakes, and almost routinely insist that their insurance
companies defend them aggressively. Therefore, we tell our clients not to
anticipate a quick settlement, but rather to get on with their lives and
be very patient in regard to settlement. Impatience can be extremely costly,
considering what is at stake in these cases.
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Q. How do I know that you will do a good job on my case?
A. We believe that experience and results count, and we have both. We have a commitment to getting an excellent result in every case we decide to pursue, and our track record and credibility are extremely important to us. Please keep in mind, however, that every case is different and no result is guaranteed. All we can promise is our best effort and the benefit of our experience and resources on each and every case.
A. Balkin & Eisbrouch handle all cases on what is called a contingency fee. This means that no fees or costs are charged unless we collect money damages for you. We advance all costs for investigators, court reporters, expert witness testimony, accident reconstructionists, filing fees and any other expenses related to your case. All of the consultations with our office are absolutely free. When you recieve compensation, meaning we have successfully concluded your case, either by settlement or litigation, our fees are a percentage of the gross settlement. This percentage is agreed upon before we begin work on your case and is generally between 20% and 40%. The percentage depends on the complexity and type of case.
No Recovery, No Fee!
We know most people can't afford high, hourly legal fees. That's why we work on a contingency basis. This means you won't pay anything, unless we recover money for you.
If you or someone you love has been injured in a car accident anywhere in the United States, Canada, Puerto Rico and all American possessions, let our experienced auto accident lawyers help you receive the compensation you deserve.
Email us or call us today at 1-800-RESULTS.
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Balkin & Eisbrouch, LLC
A National Law Firm
"Making Things Right For Over 35 Years"
