The 1st Step in a Medical Malpractice Case is Identifying the Type of Medical Negligence That Has Occurred
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The most import thing you can do in a medical malpractice lawsuit is properly identify the type of medical negligence that has occurred. In a hospital there are numerous things that can go wrong, and countless people which may be directly responsible. The success of your case rests solely on adequately determining exactly how you were hurt and who, if anyone, directly caused you that harm. This article will discuss this first step of identifying the type of medical negligence in a medical malpractice lawsuit and hopefully give you a better understanding about the complex nature of medical malpractice claims.
To fully understand the concept of medical negligence, you probably first need to know how standard negligence works. Standard negligence basically holds that if a person acts without proper care or caution and you are injured as a result of their behavior, then they are legally responsible for any injuries you directly suffer. An example of standard negligence would be if a person was driving their car and briefly looked away from the road, causing them to hit your car. If we can prove in court that the defendant diverted their attention away from the road, even for just a brief moment, then they were negligent and careless. This would satisfy our burden of proving liability and the court could force them to pay you for the damages they caused.
In contrast, medical negligence, often referred to as medical malpractice, has a greater standard and burden of proof. We cannot simply show that the doctor diverted his eyes while performing surgery on you and accidentally nicked an artery causing you to bleed out, for instance. Since the nature of medicine is incredibly hazardous and risky, doctors and medical personnel are essentially given a little bit of leeway when treating you.
In order to hold a doctor, hospital, or medical worker responsible for your injuries we must prove that they acted with extreme negligence or recklessness. A simple accident will not suffice for proving liability. We must prove that the doctor or hospital did not provide you the standard of care that you deserved, and more importantly, that they owed you.
Examples of Actionable Medical Malpractice
In order for you claim to be actionable you must have a legitimate medical malpractice claim. This is probably the most important element when establishing a case, because without this standard, you will not have a valid claim. So what qualifies as medical malpractice?
Well, many people believe that if your doctor misdiagnosed your ailment that this automatically qualifies as medical malpractice. This is not entirely true. If your doctor tells you that you are terminally ill, when in reality you are completely healthy, you cannot sue him for medical malpractice. Although he may have caused you some emotional stress, his misdiagnosis has not physically harmed you; therefore, you have no claim against him for medical malpractice. It was a simple mistake and you have not been hurt in any way due to this misdiagnosis.
However, if you have been hurt due a misdiagnosis you may have a legitimate medical malpractice claim. For instance, sometimes a doctor will evaluate you and then proceed to say that there is nothing medically wrong with you, when in fact, you have a very serious illness. As a result of their misdiagnosis, your condition becomes worse and you are actually injured due to their negligent mistake. In this situation, you may have a valid claim, but we must be able to prove that their misdiagnosis caused you actual harm and we must also be able to effectively establish that the reason they failed to properly diagnose your issue was because they did not follow standard procedure or care.
Another common form of medical malpractice occurs when the doctor fails to get the patient’s consent before treating them. While there are emergency exceptions, more often than not a doctor must gain a person’s consent, or consent from a member of their family, to perform surgery or some other treatment.
Additionally, if a patient expressly states that they do not want to be treated, then the doctor and the hospital are not allowed to proceed. They must have their express consent, and if they have been expressly denied this consent then there are numerous other claims which you may file against them, which sometimes include criminal charges for battery.
In order to obtain adequate consent, from either the patient or their family member, the doctor adequately inform you about what the procedure entails and they must make sure that you fully understand all the potential consequences of the treatment. If your doctor fails to fulfill this obligation, then you may have a medical malpractice claim against them.
Proceeding With Your Medical Malpractice Claim
The second step of a medical malpractice lawsuit is the lawyer evaluation process. This is generally where we will actually fulfill the first step and determine whether you have a valid medical malpractice claim. We will have you meet with our Austin medical malpractice lawyers so that we can discuss your case in detail. We can only truly assess the validity of your claim after speaking with you in person and hearing the timeline of events that took place. To learn more about how we evaluate your claim click on this link to read a more in depth article about attorney evaluation.
After we determine that your claim is valid and decide that we have a strong case against the defendant, we will proceed with discovery.
We often consult with various professionals who are experts in regard to your injury. They will present us with a more detailed understanding about your injury and what actually caused it which will allow us to better proceed with the resolution of your claim.
Alternative Dispute Resolution vs. Jury Trial
The next thing we do before actually going to court is we will attempt to resolve your claim through what is referred to as alternative dispute resolution. This involves us negotiating with the defendant in an attempt to reach a settlement agreement. If we cannot reach an agreeable solution via regular negotiations, we will then attempt to negotiate a settlement through mediation. Mediation is basically negotiations supervised by an impartial third party. If this also fails to resolve your claim, we have two options: we can proceed to a jury trial, or we can choose to achieve a resolution through arbitration.
Arbitration is very similar to a bench trial. Both parties will present their case to the arbitrator and, after hearing all the relevant evidence and arguments from each side, the arbitrator will decide the case. Most arbitrators are actually retired or semi-retired judges who are very familiar with hearing disputing claims and evaluating them based solely on their merits. Arbitration typically offers a much faster resolution than jury trials, and is generally less expensive; however, unlike jury trial, once you reach a judgment in arbitration you cannot appeal or move for a new trial.
Finally, if you do not achieve a solution through alternative dispute resolution, the last chapter of your medical malpractice claim is the actual
jury trial. This can sometimes take only a few days, or on occasion it may last for over a week. It is during the trial that we will present to a jury all of our evidence gathered in discovery. And we will have all of our expert witnesses explain to the court exactly what occurred to cause your injury and effectively prove that the defendant is at fault.
The entire process of handling a medical malpractice claim can be incredibly challenging, but we have gained sufficient experience over our last 22 years of helping victims just like you. We understand the best ways to achieve our goal, which is to make sure that you receive everything you deserve. To ensure that you have a valid claim, and to make sure that it is handled responsible, you need an Austin medical malpractice attorney who is experienced and dedicated to helping you. For a free consultation to determine whether your claim is considered medical malpractice, call Grossman Law Offices at 855-257-1111.