If you have been injured by a doctor and you feel that the physician, hospital, medical facility, or surgeon was negligent in some way, then you may have a medical malpractice case. Medical malpractice cases are personal injury cases. About 90% of all medical malpractice lawsuits are settled outside of court. There are many reasons why. Keep reading to understand a few.
Medical Malpractice Is Complicated
If you feel as though medical malpractice has occurred and caused an injury to you, then you have the right to file a lawsuit. However, if you want to hold the physician or medical facility responsible for your injuries, you need to establish certain facts concerning the situation. You need to prove that the individual or facility had a duty to you as a patient. You also must show that this duty was in some way breached. Once this has been established, you must prove that this breach of care caused harm to you, and that this harm created a substantial injury.
While it can often be easy to prove that a physician acted in a negligent or improper way, it is often extremely difficult to prove that the actions directly led to the injury. Many doctors and medical facilities will admit to an accident, missed diagnosis, or poor medical treatment. However, the same professional can argue that the negligence did not directly cause the injury. If you cannot make a clear connection between the negligent act and the actual injury, then there is no standing for the lawsuit.
For example, If your spouse was scheduled for a risky operation and the surgical professional accidentally left a clamp in your husband's abdomen, then this is clear negligence. If your husband died after the operation, then you may want to sue the surgeon who obviously was negligent in leaving the clamp in place. The hospital and surgeon can argue that your husband would have died anyhow due to the risky procedure. If this is true, then the negligent act did not directly cause the injury.
Since causation is not always clear and cases are typically a lot more confusing due to a variety of circumstances and facts, individuals will often settle out of court instead of allowing a judge or jury decide on the facts of the case.
Medical Malpractice Discovery Is Lengthy
Your lawyers as well as the individuals representing the surgeon or medical facility will have an opportunity to gather factual information, records, testimony, and witness statements. The gathered information must be supplied with all legal professionals. This is called the discovery phase of the lawsuit. There is typically a timeline for how long discovery should last. Medical malpractice discovery periods are quite lengthy and can last at least a year. In some cases, this timeframe can be extended much longer than this and a judge can continue to extend discovery based on arguments presented by both legal teams.
Discovery is often a long process for a variety of reasons. Since medical malpractice lawsuits are complicated with a wide variety of individuals involved, it can take some time gathering statements and determining the basic facts of the case. Also, since medical information is private, there may be some issues with the sharing of medical details. Due to HIPAA, medical professionals may not be able to share medical information with others.
Also, medical records and lawsuits that prove a history of negligence may be sealed and difficult to obtain. Both sides of the legal team can also use expert testimony to prove that negligence did or did not occur. Both the testimony and the background of experts will be examined thoroughly to make sure the information is factual and can be used in court.
Since discovery can take such a long time and can be extended indefinitely, many plaintiffs will become impatient and settle out of court. While this may seem as though this is a defeat, it is often a win-win for both the plaintiff and defendant. For more information, contact local professionals like those found at Bennett & Sharp PLLC.
Share16 June 2017
