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A doctor cannot be said to have committed medical malpractice simply because a patient’s condition became worse during the course of treatment. Sometimes a doctor is unable to treat (let alone cure) an illness, and even when a certain condition is considered treatable, there is no guarantee that every patient will respond to treatment in every situation. As long as the doctor acted with reasonable care and skill in choosing and carrying out a course of treatment, typically no medical malpractice can be said to have occurred, even when a patient’s condition takes a (sometimes unexpected) turn for the worse.
All legitimate medical malpractice cases have one thing in common: the health care provider’s action (or inaction) fell short of the appropriate standard of care under the treatment circumstances. That usually means the provider was negligent, but in rare cases a doctor’s recklessness can spur a malpractice case.
Medical negligence occurs when a doctor or other health care professional provides sub-standard care to a patient—in other words, the health care professional fails to provide the type and level of care that a prudent, local, similarly-skilled and educated provider would act with in similar circumstances.
Negligence that rises to the level of medical malpractice can occur in a number of different situations, including the failure to diagnose a harmful condition, the failure to properly advise a patient of the serious risks of certain treatment, and unacceptable errors during the performance of surgery and other procedures.
It’s a rarity in the medical world, but in some instances a doctor’s action (or inaction) may be considered reckless. For example, a doctor who performs surgery or some other risky medical procedure while under the influence of drugs or alcohol will likely be said to have acted recklessly.
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Similarly, since not all illnesses and health problems are treatable, a doctor who correctly diagnoses a health problem—and makes sound decisions in deciding how to proceed with the patient’s care—cannot be said to have committed malpractice simply because the patient’s condition is not treatable, or is terminal. Simply put, medical malpractice laws aren’t in place to offer a remedy for unfortunate (but sometimes unavoidable) health care outcomes such as terminal illnesses and deaths.They’re in place to provide legal protection when the treatment that a patient is given falls short of acceptable standards of medical care.
Doctors win the majority of medical malpractice cases that go to trial. Lawyers and legal experts differ on why this is so, but one important reason seems to be that juries understand that the practice of medicine is hard, that there is often no one right way to do something, that most doctors try their best, and that not all patients end up with a good outcome. Basically, unless the doctor made an obvious mistake, like leaving an instrument inside a patient after a surgical procedure, juries often give the doctor the benefit of the doubt.
Besides having the right lawyer on your side, the key to convincing the jury that medical negligence occurred is having expert medical witnesses who can paint a compelling (and easily-understood) picture of the doctor’s wrongdoing.
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Most medical malpractice lawyers will represent a client under a contingency fee arrangement, meaning the lawyer’s entire fee is paid as a percentage of the award or settlement in the case. So, if the case goes to trial and the patient loses, or if the client receives nothing in the way of settlement, the lawyer is never paid a fee.
The portion of the award that goes to the lawyer can vary, but the most common contingent fee is 33 percent of the award or settlement.Some arrangements might use different numbers for different circumstances. For example, an arrangement might provide for a 33 percent contingency fee if the case settles before trial, and a 40 percent contingency fee if the case goes to trial.
Important Considerations for Clients
One important thing for every potential medical malpractice client to remember is that attorney’s fees may be negotiable. Does this mean you should consult five different lawyers and compare prices and qualifications? Probably not, but there is absolutely no reason why potential clients should not shop around for the right medical malpractice lawyer. Remember, initial consultations are generally free.Another issue is who pays the costs of litigation, which can be substantial. These costs include expert medical witness fees, court filing fees, and the cost of obtaining medical records from hospitals. Many lawyers use agreements that provide that the lawyer will pay for costs of litigation.
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Finding a qualified lawyer is often critical to the success of a medical malpractice case, usually much more so than in a standard personal injury case. Medical malpractice is a specialized area of the law, so you want a lawyer who specializes in medical malpractice, or who at least has extensive experience handling these kinds of cases.
The right lawyer will know how to locate, sift through, and analyze the immense amount of medical evidence that usually comes into play in a typical medical malpractice case. When a medical expert’s help is needed (which is usually inevitable in these cases), the lawyer will have an extensive list of qualified professionals to contact.
An experienced lawyer will also know how the game is played when it’s time to talk settlement with the health care provider’s insurance company.
Finally, medical malpractice cases are expensive, primarily because of the cost of putting on the best case. Experienced lawyers know this and are prepared to bear the costs (which could easily reach tens of thousands of dollars) up front. And keep in mind that under a standard medical malpractice lawyer fee agreement, the client won’t have to pay these costs unless the lawyer recovers a settlement or court judgment in the client’s favor.
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