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When considering whether or not a person has a medical malpractice claim, several elements of the law must be considered. If a medical professional fails to provide appropriate care in accordance with the standard in the medical community, which resulted in damage, you may have a medical malpractice claim. For medical malpractice purposes, a medical professional could be a doctor, nurse, medical technician, or other member of the health profession.

To pursue a medical malpractice case, the patient must have incurred some harm as a result of a medical professional's failure to properly diagnose a patient's disease or injury. This failure to diagnose would result in improper or delayed treatment. Related to this cause of action would be a medical professional's prescription of improper medication; neglecting to inform a patient of available treatments; proceeding with a treatment that has been proven to be ineffective; or failing to provide a patient with information pertinent to his/her condition.

Having determined that an individual has suffered harm as a result of improper diagnosis, the individual must then demonstrate causation. Causation is an element of the law that goes to prove that the medical professional is at fault for the harm rendered the individual. Sometimes a procedure cannot work accordingly, but this may be of no fault of the doctor if he/she did the procedure correctly. It may simply be that the patient did not respond to the procedure as hoped. Therefore, when attempting to prove causation, expert witnesses are often used to explain the procedure and what results were suppose to be achieved. The expert witnesses are also used to explain how the procedure may not have been performed in an appropriate manner, which led to the harm suffered by the patient.

Another aspect of medical malpractice is informed consent. If a patient is to undergo medical treatment, he/she is often provided with a series of paperwork explaining the procedure and the risks involved. If this information is not provided to the patient and he/she undergoes the procedure, then the treatment was provided without informed consent. Under the premise of informed consent, even if treatment was successful but performed without informed consent, a patient may be able to recover damages.

When seeking damages in a medical malpractice claim, an individual can receive actual damages and punitive damages. Actual damages are for the cost of additional medical treatment, lost wages, loss of future earning potential and pain and suffering caused by the injury. Punitive damages are awarded if the individual can prove that harm was inflicted intentionally, willfully or recklessly resulting in harm. Please note that in recent years, individual states have moved to limit the amount of damages in medical malpractice lawsuits. There may be a cap, or limit, on how much an individual can seek in non-economic, or punitive, losses.

Given this background, here are some commonly asked questions by individuals considering medical malpractice claims:

"If I suffered an injury or harm as a result of a procedure, why isn't the medical professional liable?"

The medical professional will only be held liable if he/she did not provide the procedure according to the standards established within the medical community. If the injury or harm you suffered is an irregular reaction to the procedure, while the procedure was performed correctly, the doctor cannot be held accountable.

"How long would my case take from start to finish?"

The typical medical malpractice case can take between one to two years from the date the complaint is filed to resolution.

"How much will it cost to pursue a medical malpractice case?"

Our law firm will typically spend between $50,000 to $100,000 or greater to litigate a medical malpractice case. (Of course you will not be charged for this cost unless you receive an award.) These cases require a lot of investigative work and therefore cost more money. Initially, a qualified medical expert will review the claim. If this expert determines that the medical professional did not act according to medical standards, a claim will be filed. This leads us to the next question.

"I have approached several attorneys about my case. Why won't any of them file a lawsuit on my behalf?"

Medical malpractice lawsuits require review by medical experts just to determine the strength of a case. In order to pursue a case, our law office must determine whether or not the case's merits are strong enough where the outcome will result in a monetary award that will cover the costs to litigate.

"If my case meets the criteria for medical malpractice, what will the process be like in litigating it?"

As mentioned before, first the medical expert would be brought in to review the case. Upon determination that the case shows neglect, a Notice of Intent would be prepared and presented to the defense with an affidavit from the expert. The defense would then have 90 days to respond. At that point, your case could follow three paths. The defense could agree to the accusations of neglect and make an offer. They could admit to the liability and pursue mediation to determine the damages. Or finally, they could deny the charges, which would result in the filing of a lawsuit.

"What does mediation involve?"

Prior to the trial date, the defense may offer to mediate the case. This involves meeting with a mediator, which is a third party consisting of a retired judge or attorney, to review the case in a moderated environment. The mediator will then meet with both sides to see if they can achieve a common ground and find a way to settle the case out of court.

"In the event that the medical professional denies culpability, will there be a jury trial or a settlement?"

It depends on the circumstances surrounding the case. However, you should be aware that most medical malpractice suits are settled. In the event the case goes to a jury trial, the litigation process will require depositions of those with knowledge of the case. This will include the defense taking a deposition of you, the plaintiff, and those involved in the procedure that rendered you harm. (Depositions are often taken outside the presence of a judge, with just the attorneys from both sides present. Then excerpts from depositions can be used during the testimony phase of trial.)

"If for some reason the jury should not render a verdict in my favor, would I be responsible for the costs involved in litigating this case?"

If the jury renders an unfavorable verdict, you would not be responsible for the costs of the trial or litigation process. However, should the verdict be favorable, the costs associated with the trial would be deducted from the proceeds of the jury's award for your damages. (Sometimes, however, depending on the circumstances of the litigation, the defendant may be instructed to cover the costs of the plaintiff as well.)