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Can I Sue? Medical Malpractice

Updated on November 9, 2012
Can I sue?
Can I sue?

A Primer on the process.

(Disclaimer: Nothing in this hub article is intended or to be used as actual legal or medical advice. This article is intended for entertainment purposes only and does not replace advice from an attorney or medical personnel. Always consult the appropriate expert for actual medical or legal advice.)

Maybe you feel something bad happened to you, something that shouldn't have happened. Can you sue?

Asking that question in the United States of America is like asking "Can I run for president?" Sure you can, but unless you are the Democratic or Republican nominee, no one is going to take you seriously, and you're not going to win. Anyone, or their lawyer, depending on the venue and type of suit, can go to the courthouse and file a lawsuit, so the question isn't can you? but should you?

So when can you sue over a bad medical result or experience? What qualifies as possible medical malpractice?

When a person files a lawsuit, they are saying that they have been injured by the person they are suing in some way. The lawsuit is your way of getting some compensation for your suffering. A medical malpractice lawsuit involves suing people or entities that you feel have injured you rather than helped you when you went to them for medical care.

Note: In this article we are talking about individual lawsuits, not class action lawsuits that may involve more environmental or procedural issues.

To have medical malpractice you need to have two things happen (lawyers will sometimes call these the "prongs" you need to have.) First, the medical provider needs to have done something actually bad or neglected to do something really necessary or obvious, and what happened is outside the usual ups and downs of trying to treat a medical condition. Secondly, you must have suffered an actual injury or bad outcome because of this.

On the first point, it's important to know that your providers don't have to be perfect. They just have to be average. For example, let's say you injure your leg, and the doctor that looks at your leg X-ray misses something and may have negatively impacted your recovery. Is it something that any reasonably competent doctor should have found, or is it some weird obscure thing that most doctors would miss? It's the same as with any job; there are things you're supposed to be able to do, and you get in trouble with the boss if you don't do them right, and there are things that nobody will expect you to be able to do, because you don't have the training or experience to do them. Only if it's something the average doctor should be able to do as part of their job is it a problem that they did not do it.

The second point is also vital to your possible lawsuit. You have to have been actually injured in some way by the problem. If the doctor missed something on your x-ray and it did not end up having any effect on your recovery (or lack of recovery) then it doesn't matter, as far as malpractice is concerned. If the nurse at the hospital gave you the wrong dose of medication one day but you suffered no ill-effects,then you haven't actually been injured and you wouldn't be able to successfully sue anyone.

Let's say you think you meet the two "prongs" and you want to go further. How should you proceed?

At that point you absolutely must consult a lawyer who specializes in malpractice cases. Malpractice cases are very complicated and expensive, so you need an expert. Almost any lawyer will discuss your possible case with you without charging you, so talk to several malpractice lawyers and find the one that seems the best fit. Consider the experience of the firm, but also how interested the firm will be in your specific case as well.

Now is also the time to listen to what the lawyers tell you, even if it is not what you want to hear. The actual facts about a malpractice lawsuit experience are very different from the impression you may have gotten from newspapers, movies or television. Remember things that happen all the time aren't front page news, so those big lawsuit awards you read about are pretty rare indeed.

In fact people who sue ("plaintiffs") only win an actual malpractice trial against a doctor about 20-30% of the time, meaning they lose and get nothing in up to 80% of the cases. You'll do better against a hospital (up to 50%) but it's still not a sure thing.

And you're not going to get paid for being unhappy. In order to win a malpractice trial, you have to be really injured. You need to be dead, or paralyzed or have lost your arms,legs and/or eyes. If you've had a brain injury, it needs to be bad enough that you can't be expected to ever really take care of yourself again. If you go into a trial complaining that you had a back operation and now your pain is worse, the jury is going to be "You rolled the dice and you lost. Too bad, so sad." Most malpractice awards are calculated to cover the actual costs of medical care due to the injury, and only about 1-2% include any kind of purely punitive payment directed at the defendant.

And a malpractice trial is complicated and expensive. Remember the discussion about whether or not a particular action was something the provider should reasonably be able to do? How do you figure that out? That means hiring "expert witnesses" and they don't come cheap. All your records will need to get to the lawyer, and someone will have to go over them...that could take a lot of time. And for a lawyer, time really is money.

The point? If you visit a couple of lawyers and they tell you it's not worth pursuing, listen to them. You can best believe they want cases, because they can't make money without them. So if they tell you it's a no-go, it most probably is.

FYI, if you are dissatisfied with the quality of your medical care there are other things you can do besides sue that can be very effective.

For starters, we still live in a democracy with capitalism (sort of) so you can always "vote with your feet." If you don't care for your current providers, fire them and get new ones.

If it's a question of attitude, calmly confronting the offender or his/her boss and letting them know how you feel often brings a rapid apology and attitude improvement. If it's a hospital problem, all hospitals have a "patient advocate" or "ombudsman" to look into your concerns and these people really take their jobs seriously. If it's an ongoing problem with behaviors, getting appointments, proper follow-up directions, getting your records, or communication, and speaking with the doctor, practice or hospital does not help or isn't feasible, contact the professional board for that type of provider in your state. Every state has a "board," a department or agency that controls the license of every licensed provider, such as doctors, nurses, dentists, pharmacists and so on, and every licensed provider lives in fear of their board.

If you and your attorney do decide you have a case, here are some tips that will help you keep from tearing your hair out over the process.

These types of lawsuits can take a long,long time to get done. It is not uncommon for a malpractice suit to take years to get from point A to point Z.

Again time really is money for a lawyer. Most malpractice cases are taken on "contingency" meaning the lawyer gets a cut of the award for his or her pay. However, they still may have other work to do--don't expect them to be calling you to chat, or returning every call within the hour. Lawyers tend to call clients when they need to, not the other way round. Of course they shouldn't be ignoring you completely or giving you bad customer service, but don't be surprised if some time goes by between contacts. Keep your own notes and records on every contact should any dispute arise.

There are a lot of steps in a lawsuit. You most likely won't start off with the actual jury trial or judge's decision. There are all kinds of intermediate happenings. This is normal and your lawyer should explain each one and what the outcome and next step is to you.

Reality and legal matters do not always coincide. For example, in a criminal trial the defendant is found guilty or innocent based on what happens in the trial. He or she is still legally "guilty" or "innocent" at that point regardless of whether or not they actually did the crime. Similarly, what you may see and hear presented or decided in the courtroom may not match what you consider to be the reality of the situation. It's just the nature of the beast, so don't take it personally.

About 99% percent of the time (not a guess but the actual statistic) your lawyer will come to you before any actual trial to talk about a "settlement." This typically means the defendant will pay you a certain sum of money and everyone will pretend this unpleasantness never happened. There will be no trial necessary.

You may wonder if this is the way to go. After all, the insurance company that pays out the award doesn't want to get a reputation for being "easy," so they wouldn't make a settlement offer unless they thought you had a pretty decent case. And you may have researched the money figures and seen that the average settlement may be about $500,000, but the average jury award is about 2.6 million against doctors and 4 million against hospitals. However, there are some things you need to know about those jury awards. One thing of course is that you will only win and get an award about 20-30% of the time. That means you have a 70-80% chance of walking away with nothing--and if you saw in the weather report that their was a 70% chance of rain today, you'd cancel your picnic and pack your umbrella. Second, you don't get the money yet. After a big award, the defendant's lawyers will appeal to get it reduced, and they are often successful. This is especially true for awards over one million dollars, because that's all the insurance most providers carry, and you can't get blood out of stone. Thirdly, although it may be a lot of fun to watch courtroom dramas on television, it is extremely stressful to actually star in your own. Given all this, it's no surprise that approximately 97% of malpractice cases settle rather than go to trial.

Of course, what to do in your case will depend on your particular circumstances. Are you suing the kindly old family doctor who delivered half the people on the jury, or the jerk who showed up for all his operations falling down drunk? Are you dead, or even better paralyzed from the neck down? Is it something obvious, like amputating the wrong leg, or something so complicated that the jury's brains are just going to melt trying to follow the testimony? The most important thing to do is LISTEN TO YOUR LAWYER. He or she is the expert--they know what the chances are and when and if to settle and for how much.

A final note--some of you reading this may be wondering; how much does the lawyer take? This depends on a number of factors. Your state may have state-specific rules on how much of the award or settlement the lawyer can have. You may sign a contract to let him or her have a certain amount. The percentage also varies with the award size (the lawyer gets more of a smaller award.) Generally speaking the lawyers cut ranges from 20% (larger awards) to about 50% (for smaller sums.) When hiring any expert help, don't be afraid to get more than one opinion or quote up front, and carefully review any contract you sign.


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