Common Pitfalls in Medical Malpractice Cases

If you were injured from what you believe was doctor's 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

A 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, the patient is treated and shortly thereafter gets 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 Professional 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 client's behalf in a medical malpractice cases, include what's 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 doctor's negligence, and believes that the case has merit. An experienced 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 patient's medical records

If a patient is suing a doctor for negligence, very often his entire medical record, including reports from years back, comes into play. The usual argument by the defense is that the condition was pre-existing and not the result of doctor's mistake or omission. The counsel for the defendant will pour over hundreds and hundreds of pages of plaintiff's 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 doctor's attorney will make concerning the cause of your injuries.

5. Failing to retain expert witness to testify on plaintiff's 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 defendant's 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 lawyer has the ability to handle your case.

Sickle Cell Anemia - A Medical Malpractice Case

Sickle cell anemia is a hereditary disease when red-blood cells, which are normally disc-shaped, instead are crescent shaped. As a result, they can cause blood clots and give rise to painful episodes called "pain crisis".

Nina, now 16-years old, has lived with the effects of the disease for her entire life. Twice a year, she is spontaneously thrown into fits of extreme pain in her arms, legs, abdomen, and back and must be admitted to the hospital. Typically, she is given strong medications such as morphine and placed on an I.V. for hydration.

Two years ago, Nina had an episode and while in the hospital, she spiked a fever of approximately 102.7. The hospital took a chest x-ray that showed Nina had pneumonia. In addition, three blood tests were taken and it was shown that there was probably a contaminant in her blood.

This kind of blood reading would be cause for concern for the average patient. For someone with sickle-cell anemia, the alarms should have gone off. People with sickle-cell anemia are highly predisposed to Staph-infections - a unique bacterium that can erode bone tissue and kill vital organs.

Despite this possibility, the hospital treated the infection as a regular bacterium. Although her pain continued, Nina was given antibiotics and painkillers and discharged.

Nina came back to the hospital two more times in the next month. Family, friends and doctors watched as her condition got worse. Still, the method of treatment was never reconsidered. She couldn't walk, she was short of breath and due to the excruciating pain, Nina could barely carry on a conversation with her mother.

This kind of blood reading would be cause for concern for the average patient. For someone with sickle-cell anemia, the alarms should have gone off. People with sickle-cell anemia are highly predisposed to Staph-infections - a unique bacterium that can erode bone tissue and kill vital organs.

Finally, Nina was taken to a different medical center where it was revealed that a Staph infection killed bone tissue in Nina's spine. She had to have spinal surgery, which is painful, traumatic and involves considerable risk for the patient.

When Nina brought a medical malpractice lawsuit, the Court determined that it is indeed a departure from "good and accepted medical practice" for the hospital to fail to consider a staph infection after the first positive blood culture; particularly in light of the fact that people who suffer from sickle cell anemia are at increased risk for that kind of devastating infection. Nina recovered compensation commensurate with her pain and suffering.

Finding A Malpractice Expert For Your Lawsuit

If you've been a patient and believe you've been the victim of medical malpractice, you need a malpractice expert on your legal team. You might know that you're suffering after undergoing treatment, and you might be able to demonstrate that suffering. It's quite another thing, though, to convince a jury that your suffering was caused by a doctor's neglect.

Few plaintiffs have the expertise to know what a doctor's treatment should be expected to have accomplished, and in what time frame. Perhaps you remember what you were told by the doctor before you underwent treatment, and perhaps you were even given this in written form, but this isn't good enough. You also have to know what range of symptoms qualifies as not just "tough luck" but actual malpractice.

A malpractice expert had better be a doctor. But it takes more than a mere medical degree. It takes specific medical knowledge relevant to your particular case, and for the non-expert even learning what knowledge is relevant will require consultation. For complex procedures like surgeries, the fault might have been the surgeons but it might also have been the anesthesiologists, hematologists, or even the physical therapists. There are companies, like American Medical Forensic Specialists, whose sole business is providing malpractice expert witnesses. They retain a "Medical Director" who can tell you what medical specialties need to be engaged, what counter-claim might be engaged, and more.

With average settlements at over a quarter-million dollars, there's a lot of money at stake for both sides in a case. Keep in mind that the desire is not simply to meet some minimum requirement of expertise. Finally, this comes down to convincing a jury, one way or the other. It's in both sides' interest to retain the best-reputed, most experienced doctor possible.

It isn't difficult to find doctors willing to serve as medical expert witness. For them, it's a way to earn extra income while getting a bit of free advertising. There is rarely any interference with their schedules, and the overhead is negligible to nonexistent.

The procedures and regulations for lawsuits will vary from county to county, and there might even be variances between individual jurisdictions within counties. For instance, if you have decided to sue your dentist, and desire a dental expert witness, you'll need to know what organization to work through. In some cases there will be a licensing board specifically for all dentists; in others there will be a medical board for all doctors which also regulates dentists.

Time is of the essence. Any jurisdiction will have strict deadlines after the treatment within which litigation is accepted. This only makes sense, since the more time passes, the more opportunity there will be for something other than the treatment to have caused your distress.

It isn't necessary to hire an attorney, but it is advisable. Typically, a personal injury attorney will take this particular burden off your hands, and will already have a support network set up. He or she will know who to contact to serve as your malpractice expert.