“Medical negligence is different.” I tell every potential client this truth at the outset – because it is crucial to understand how and why medical malpractice cases differ from others. One cannot, and should not, be able to just sue a doctor or a hospital because of a bad outcome in a treatment, procedure or diagnosis. There are often bad results in medical care having nothing to do with poor or negligent medicine. We are human; sometimes even with the best of care we will not get better or an unfortunate event occurs.
For an occurrence to give rise to a “med-mal” case, the bad outcome (injury) must have directly resulted from a medical error…a “breach of the prevailing professional standard of care”, the legal standard required. Lawyers don’t and can’t make that call – only qualified health professionals can. The medical malpractice lawyer’s job is to gather the relevant medical records and facts, fully research the issues and then present to a qualified expert physician for review. Should that expert make an objective determination that,
a) there was an obviously preventable medical mistake and;
b) that medical error directly resulted in an injury – usually of a significant nature
then, and only then can a claim be made “in good faith”, which is required by law.
Usually these cases are never brought to recover on minor injuries regardless of whether negligence occurred. Simply put, the cases cost too much and require such a significant amount of work to file on anything less than significant injuries.
Medical negligence cases also differ from the normal personal injury case in other important ways. The defendants are most always very educated and knowledgeable witnesses…doctors and other healthcare professionals. Moreover, they know better than anyone what really occurred, why it occurred and the medical science underlying the issues. As one may presume, this presents special challenges for the lawyers involved. If an attorney does not have the science and medical background needed to understand the core issues, they are greatly disadvantaged. Essentially, the lawyer must, through experience, research and education, become as schooled as the doctor on the particular medical issue being litigated. Therefore, there are not a lot of highly skilled medical malpractice lawyers- it’s not a job for the general practitioner…even those who do other personal injury work.
Most doctors and healthcare providers do a good job and are careful and skillful. People ask me often whether I am fearful of medicine because of what I see in my practice. I’m not. In fact, if anything I have an even greater respect for the medical and dental practice. However, and regrettably, mistakes are made because of rushing, patient load, and in some instances, just lack of skill. Usually, (8 out of 10), of these events go unreported and hence, no law suit results. Therefore, it is never a bad idea to discuss an unexpected or poor outcome with a knowledgeable medical malpractice lawyer. The experienced medical negligence firm can sense if any of these issues are or are not potential cases just by hearing the facts and reviewing the records. It is also vital that such review of a medical malpractice issue occur soon after the event as there is a two year “statute of limitation” involved with most of these cases. Waiting is not wise.
In summary, there are a lot of law firms advertising personal injury, auto accident and even medical malpractice work. However, there are not a lot of law firms actually equipped to handle medical negligence issues. When making a determination about a medical malpractice firm to contact be informed; law firms that advertise a broad array of services (like criminal law and family law in addition to medical malpractice or personal injury) are not usually truly practiced in medical malpractice litigation.
Ask the firm how many medical malpractice cases they have actually tried and where and when. If a law firm has not conducted a medical malpractice trial in the last five years – they are most likely not practicing much medical malpractice law. Be informed. These cases are very important.