Steps in Filing a Medical Malpractice Complaint

Medical malpractice is the most common legal complaint that involves hospitals and doctors. This takes place when a medical error, even the smallest or simplest one, occurs due to negligence or carelessness and results in injury, disability or fatality. It's a popular misconception that for a medical error to be considered malpractice, death should occur. It's not necessarily that way. If a mistake committed by a doctor or member of the medical staff results in serious injury or disability, this can also be grounds for a medical malpractice complaint.

Some of the common errors in medical malpractice include failure to diagnose or misdiagnosis of a disease, improper treatment, surgical errors, incorrect administration of anesthesia, prescription errors, and so on. If you or anyone in your family member were a victim of medical malpractice, you can file a complaint and recover for damages. Here are the steps that you need to undertake regarding this matter.

Talk to a lawyer

The first step is to find an attorney who specializes in the area of medical malpractice. Having a good lawyer by your side will help make things easier and less complicated for you. As you can probably imagine, the doctor or hospital that committed the error would do everything in its power to safeguard his/her/its reputation so you can expect that they will not be too easy in disclosing information pertinent to your case. A lawyer will help you get through this obstacle. Since most of medical malpractice cases involve lots of money, the doctor and hospital will have their malpractice defense lawyers fight arduously for the case.

Get certification of merit

Your lawyer will have a medical professional on his/her staff who will be ready for consultation regarding the details of the case. This medical professional will give a certification of merit to confirm that negligence in the medical care or treatment was present.

Notify all the parties involved

It's not only the doctor who's involved in the case but also the nurses and hospital (or clinic or any other medical facility). They will all be notified about the claim. They in turn will get in touch with the medical malpractice insurance providers to notify them about this. Their defense attorney will start to build defense.

File the suit

After it has been established that the case is meritorious, you and your lawyer can now work to file the case in the civil court. This will begin the legal process. The parties will have time to establish their cases and build their evidences. This will help determine the strength of the claim.

Consider settlement negotiations

Most of the cases that involve medical malpractice are settled out of the court. Since both parties are aware of the costs and risks of taking the complaint to trial, they usually agree to settle the amount out of court. If it happens that the amount of damages are not amicably agreed upon, then the plaintiff attorney will bring the case to the court.

Like legal malpractice, medical practice cases are hard and complicated. It's best that you have a good lawyer to help you in every step of the way.

A Debate on Medical Mistake Payments

According to a survey conducted in 2006 by the Archives of Surgery, there are 1,300 to 2,700 medical procedures that went terribly wrong in the United States. This long list of medical mistakes includes wrong site procedures - operating on the wrong person, wrong place, or wrong body part.

Whether it is a healthy organ that was removed, operation on the wrong side of the brain, bypassing the wrong artery, or not administering enough anesthesia, the question remains, who pays for these horrendous medical mistakes? So far, only eleven states in the U.S. have agreed to not charge patients or their health care providers for serious preventable errors on behalf of the medical team. Hospitals should waive fees for these rare errors because they should not have been allowed to happen in the first place and patients should not be punished even further by being pinned the medical bill. However, this isn't the case in reality. Since only 11 states have acknowledged medical mistake waivers, the rest of the states take the position of not paying for these wrongful procedures because they feel that they are accepting total liability in court. That leaves 39 states where patients who suffered from wrongful medical procedures to expect they, or their medical insurance providers to pay for procedures. This should stir a reform for no payment policies to waive all fees to patients who suffered from unexpected removals of organs, amputations, or wrongful operations.

While some states have developed their own lists based on NQF (National Quality Forum) standards, the list outlines a selection of non-billable errors to medical mistakes that will hold the hospital liable. Even still, such lists may or may not accept responsibility for mistakes such as artificial insemination with the wrong donor sperm or egg, or wrongful removal of a body part. It's hard to believe, but since medical mistake payment and liability is not controlled on the federal level, it is up to the states to develop their own process of action when dealing with such cases.

On the Federal level, at least the government has some idea about the statistical numbers attributed to medical errors. Looking at reported Medicare numbers, in 2006 Medicare was sent bills 764 times for foreign objects left behind in a surgery. Each average payment per case was estimated to be about $62,000.

Many patients resonate the same opinion regarding this matter. They should not be charged for any egregious mistakes performed and hospitals should step up and even pay the patients a remuneration or compensation fee for enduring unexpected and often painful procedures.

Regarding health associations and large medical insurance companies, refusing to pay for hospital errors is a way to improve patient safety and cut health costs. Since hospitals cannot charge insurance companies for their mistakes, it might be more of an incentive for hospital practices to take greater precaution in patient care. Medicare has already taken this step and starting in October, will no longer pay costs associated with preventable conditions of patients after they have been hospitalized. Other large medical insurance providers will follow suit.

Dietary Weight Loss Drugs and Medical Malpractice

The weight-loss industry is booming in the United States, and probably will continue to grow as the nation experiences what the Surgeon General has deemed an "obesity epidemic." As a result, drug makers are constantly seeking to develop and market that lucrative "magic pill" that will facilitate weight loss.

In fact, drug companies have been marketing diet pills in various forms for more than twenty-five years, and desperate patients have been more than willing to try them, often with tragic consequences. Sadly, in a quest to become healthier, unwitting users have subjected themselves to dangerous diet drugs, experiencing not an improvement in health, but rather serious health problems and even death.

In 1992, for instance, pharmaceutical companies marketed two diet pills called Fenfluramine and Phentermine, to be used in combination and therefore dubbed "Fen-Phen." Unfortunately, tens of thousands of Americans have suffered very serious injuries from taking these diet drugs and similar ones. These injuries include heart valve damage and potentially fatal primary pulmonary hypertension (PPH).

It is unclear how many deaths have been directly attributed to extended use of fenfluramine but in 2004 a Texas jury awarded $1 billion to the estate of a deceased woman after finding that Fen-Phen caused her death. Many Fen-Phen users face heart valve replacement surgery, and countless others now live in fear because they do not know what will happen if their disease progresses. Thousands of others remain unaware of their injuries because they have not yet had the medical testing required for proper diagnosis-often an echocardiogram, which is, in essence, a noninvasive and painless ultrasound examination of the heart.

There is strong evidence that some of the companies involved in marketing and selling Fen-Phen knew that these drugs were causing serious, even fatal, injuries, and that they deliberately concealed that information from the Food and Drug Administration (FDA) to protect their profits. Fenfluramine and dexfenfluramine were removed from the market in September 1997, at the request of the FDA, but by then significant damage was done, and thousands of Americans suffered needless, but very serious, injuries.

There have been many individual lawsuits seeking diet drug-related damages, and there have been class action lawsuits as well, in which large groups of injured individuals have joined together to sue the same manufacturers. A class action lawsuit is a case in which there are one or more persons named as plaintiffs in the complaint, the document that officially starts the lawsuit, but the case is actually pursued on behalf of many other persons with similar claims. The persons named on the complaint are the "class representatives," and their claims must arise from circumstances similar to those of the other class members.

Generally, individual plaintiffs need not take any formal action to join in class action litigation, but rather they automatically become members unless they formally opt out. Rarely, a class action will be limited to those plaintiffs who expressly choose to opt in. Potential class members are often notified by letter informing them in writing of any action they need to take. Not all individuals are best served, however, by national settlements of class actions, since they may not fairly compensate the most seriously injured diet drug users. It is important to note that class action settlements are binding on all persons who do not "opt out."

All diet drug users should consult with their physicians about the risks of taking any prescribed or over-the-counter weight-loss medications and submit to any recommended follow-up testing. If ill effects are experienced or discovered through examination and testing, the victim must act immediately to protect his or her legal rights as well. If you have suffered damages as a result of a diet drug, it would be prudent to seek legal counsel right away.