When people need medical treatment, they take comfort in knowing that their doctor is a highly trained medical expert who has spent years honing his/her skills. As patients, we all want to receive the best medical care possible. At a minimum, all patients deserve treatment at a level of skill, expertise, and care possessed and practiced by physicians in the same or similar community, and under similar circumstances.
Unfortunately, doctors are not perfect. Physicians, like anyone else, have their good days and bad days, and make mistakes just like everyone else. If you are injured as a result of a medical mistake you may be entitled to recover compensation for your injuries and damages. However, not every treatment error is ripe for a medical malpractice case.
Medical malpractice cases are complex civil claims which usually involve complicated medical issues. These cases are typically very involved and require a great expenditure of time and money to litigate. For this reason, attorneys must account for complicated medical/legal issues as well as financial risks before moving forward with a medical malpractice lawsuit.
Some factors that must be considered before filing a medical malpractice action are discussed below.
Did your Medical Provider Breach the Standard of Care?
The first issue that must be addressed is whether a doctor, nurse or other medical provider’s breached the standard of care. To breach the standard of care, you must prove that your treatment was below the level of skill, expertise, and care used by other treatment providers in the same or similar community, and under similar circumstances. This is true for both medical malpractice and dental malpractice cases. Proving a breach of the standard of care is accomplished through the reports and testimony of medical experts.
Notably, a bad outcome following a medical procedure does not always mean that your doctor committed medical malpractice. In many cases, poor outcomes are simply a “known risk” of the procedure. An experienced medical malpractice attorney can help you determine whether your injury was caused by medical negligence or simply a poor outcome.
What Damages Were Directly Caused by the Medical Malpractice?
As with any personal injury case, in order to bring a medical malpractice case you must have suffered actual damages as a direct result of the negligent act.
Most med mal attorneys will only consider claims which involve debilitating / permanent injuries such as disfigurement, paralysis, loss of a limb or appendage, impairment of a bodily function or death. This is because med mal cases are usually very high risk and require a significant financial investment and time commitment.
The vast majority of medical malpractice cases are taken on a contingency fee basis. Under this type of arrangement, the attorney usually fronts your litigation expenses which are then deducted from any settlement or award. Thus, your case must have a significant value in order to justify the risk and extreme financial and time requirements. Injuries that cause pain or discomfort for only a short period of time, may not meet a medical malpractice lawyer’s threshold for accepting the case.
Where did the Malpractice Occur?
In Pennsylvania, the law requires malpractice actions to be filed in the county where the cause of action arose. Therefore, if the malpractice arose in Bucks County you cannot sue your doctor in Philadelphia or some other county.
This law is significant because the county in which the alleged malpractice occurred may be large factor in determining whether a lawyer will accept your case, and whether you will ultimately prevail.
In some conservative areas, the call for “tort reform” is so strong that victims of medical malpractice are unlikely to get a fair trial. For example, in 2012, in Montgomery County, Pennsylvania, all 19 jury verdicts in medical malpractice cases tried resulted in a defense verdict. In the same year, 6 out of 8 Delaware County medical malpractice verdicts were for the defense. Accordingly, in conservative jurisdictions many attorneys will only take medical malpractice cases where liability is obvious and injuries are catastrophic.
Comparatively, in Philadelphia, which is known as a more “plaintiff’s friendly” jurisdiction, medical malpractice verdicts were split between plaintiffs and defendants approximately 50/50. Although filing a medical malpractice lawsuit in Philadelphia is no “sure thing” it helps to illustrate the disparity between counties and explain why medical malpractice lawyers are more willing to represent malpractice victims in Philadelphia.
If you suspect that you or a family member was the victim of neglectful medical care, call Philadelphia medical malpractice lawyer Brent Wieand at 1(800) 481-5206 or fill out the online contact form.
Disclaimer: This article is for informational purposes only and does not constitute legal advice.