July is Medical Malpractice Awareness Month

As medical malpractice cases can be complex and challenging, the value of being properly informed cannot be underestimated.

Little awareness despite high payouts

A completely inaccurate diagnosis leads to a prolonged, ineffective, and painful treatment; a careless surgeon leaves a piece of medical equipment in a patient’s body, resulting in infection and life-threatening complications; a nurse administers a wrong dosage of a prescribed medicine causing severe organ damage. Even though it may be hard to believe, instances of medical negligence and malpractice, like those just mentioned, constitute the third most-common cause of death in the U.S. In fact, according to the Journal of Medical Association, only heart disease, and cancer take a more deadly toll than medical negligence. In 2012, the total sum of medical malpractice recoveries reached over $3 billion. That averages out to one payout being released every 43 minutes; in 2016 that number climbed again, total payouts for medical malpractice cases in 2016 amounted to almost $4 billion.

Although judging by this data, it may seem that medical malpractice lawsuits are extremely common and have very high chances of success, the reality is markedly different. As a matter of fact, medical malpractice cases comprise only 15% of all personal injury claims filed in any given year – even though an estimated 200,000 people die as a result of medical errors annually. Moreover, the injured patients or their surviving family members, particularly those who fail to secure the assistance of an attorney, win less than a fifth of such lawsuits – in the overwhelming majority of such cases, the plaintiffs are granted no compensation at all.

The reasons for this are diverse. As most attorneys specialized in this particular field are quick to note, medical malpractice claims are often technically complex, difficult to prove, and costly to litigate – this makes them nearly impossible to win without the assistance of an attorney who has experience with these types of cases. In fact, in some instances, a less experienced lawyer may even refuse to take up such case.

In other situations, however, patients may not even realize that medical malpractice has occurred. This may happen due to the fact that most state laws do not require that the victim be informed of malpractice. Thus, according to some estimates, as much as 90% of documented malpractice is not pursued by the patients. Those who are aware that they have fallen victim to negligence on the part of a healthcare provider may still be hesitant to pursue a claim. For example, oftentimes, a victimized patient may require continuous medical help and attention and thus may fear that filing a medical malpractice claim will result in other doctors refusing to treat them. Others may mistakenly think that pursuing litigation will make the cost of their medical care increase. And some choose not to pursue the claim because of the projected costs associated with legal action. None of these reasons, however, accurately reflect the reality of a person trying to receive compensation for damage and injuries sustained as a result of medical malpractice. Thus, the value of being thoroughly informed about one’s rights and legal possibilities cannot be underestimated. This is one of the reasons why every July, the National Medical Malpractice Advocacy Association (NMMAA) organizes and promotes Medical Malpractice Awareness Month. In the spirit of this initiative, this article will provide some basic information about medical malpractice and the ways to proceed for those who suspect they, or someone under their care, may have fallen victim to it.

What the victim should know

At the core of every medical malpractice case lies negligence, or a failure to provide the recognized standard of care that could reasonably be expected in a given situation, that is to say, the same type of care that other medical professionals would have provided in the same circumstances. It is vital to note, however, that not every error of judgment or mistake that results in a bad outcome for the patient will qualify as the basis for a successful malpractice case. In some cases, unintended, unforeseeable or unpreventable complications occur. These normally do not qualify as malpractice. In addition, even a bad diagnosis does not automatically warrant a solid claim – in this case, the plaintiff will need to show that a doctor of the same or similar specialty would not have misdiagnosed the patient given the same medical circumstances. Similarly, an unsuccessful surgery that results in an injury to the patient is not automatically an instance of malpractice – rather, it needs to be proven that the damage or injury was preventable and occurred because the surgeons did not follow the appropriate standard of care.

The second element of a medical malpractice claim is related to causation. The plaintiff must be able to demonstrate a causative link between the negligence and the damage sustained, or in other words that the damage or injury would not have occurred but for the malpractice. At times, this may be problematic to prove since it must be very clear that the damage, injury or suffering is the result of negligence on the part of a healthcare provider and not the result of any other underlying or preexisting conditions. For example, if a doctor fails to diagnose a certain type of cancer and the patient dies as a result, it may be a basis for a malpractice claim. However, if the particular type of cancer the patient had was very aggressive, untreatable, inoperable and resulted in death in virtually all patients, the doctor could not be charged with malpractice because an earlier diagnosis would not have been likely to change the result.

Other factors that are taken into consideration during a malpractice case are whether the damage is quantifiable and if a preponderance of evidence exists. The damage is quantifiable if it translates into wages lost as a result of current or future inability to work, or if the injury sustained necessitated more treatment thereby incurring more medical bills. Preponderance is a term which means that the majority of evidence presented indicates that malpractice occurred.

Preparing a malpractice claim

What should be done, therefore, by those who suspect that they, or someone under their care, have fallen victim to medical malpractice? Without allowing themselves to be intimidated in any way, such a person should ask for his or her complete medical records. Then, they should contact an experienced attorney specializing in medical malpractice cases and hand them over the records for review. A seasoned attorney will not only be able to determine if a case is actionable but also will be in the position to contact expert witnesses whose testimony will be crucial to winning the case. Most medical malpractice attorneys work on a contingent fee basis, which means that they only charge their clients in case damages are paid as a result of a settlement or a verdict favorable to the client. The actual value of the fees depends on the amount of payout. It is important to note, however, that if a case is lost, the plaintiff might be expected to pay the court costs incurred, at least partially. This, however, depends on the agreement the plaintiff had with their lawyers.

Statute of limitations in Massachusetts

A person who suffered from medical malpractice must also be aware of the statute of limitations applicable to such cases, this means the time limits within which a person must file a malpractice claim. In the state of Massachusetts, a primary time limit is 3 years. There are, however, some exceptions to this rule. The first one is called the discovery rule and it means that if a person could not reasonably have discovered they fell victim to medical malpractice within the standard period of 3 years, then they have a possibility to file a claim for 3 years from the moment they acquired the knowledge of the fact. Massachusetts law also includes the statute of limitations for minors. In the case of children younger than 6 years old, a parent or a legal guardian is able to file a claim until the child’s ninth birthday; for any other minor, the time limit for a parent or a legal guardian is 3 years from the discovery of the medical malpractice case. The statute of repose in the state of Massachusetts, or a period of time after which a malpractice claim cannot be filed regardless of any other circumstances, is 7 years. The statute of repose does not apply to cases where a foreign object was left in the body of a patient by a surgeon.

Medical malpractice lawsuits can be challenging, lengthy, and costly. Patience and persistence, as well as close cooperation with an experienced attorney, will be essential for a successful outcome. However, even if it appears that the odds are unfavorable, a person injured or damaged as a result of malpractice should not be intimidated or discouraged. The struggle for justice may be hard but the victims are not in it alone. Initiatives like Medical Malpractice Awareness Month testify that there are legal specialists and independent organizations ready to offer assistance to anyone treading on this uneasy path.

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