Posted: February 5, 2017 | Last Updated: February 8, 2017
Proving medical malpractice (also called “medical negligence”) requires two steps:
We all know that health care delivery has many moving parts. Errors can and unfortunately do occur. It may be a physician who makes an incorrect or late diagnosis. It may be an unnecessary, faulty, or delayed surgery. It may be a nurse who forgets to document an important order. Or it may be a systems failure implemented by a hospital that requires employees to work too many hours under circumstances where inefficiencies or errors are likely to occur. As a result of any of these, a patient may receive late or deficient medical care.
Whether some act was “negligent” is judged by what similar healthcare providers would do under the circumstances. For example, if the error involved care provided by a surgeon for a specific condition, then the care would be judged by what a reasonable surgeon would do under the same circumstances. Expert witnesses are consulted to review medical records and testify about what a reasonable physician would have done in that situation. After hearing all of the evidence, a jury decides whether or not the medical care was reasonable.
An error alone is not malpractice. To prove malpractice, you must also prove “causation,” which means you must prove that the error caused harm or injuries. If the medical error did not cause any harm to the patient, there is no case for medical malpractice no matter how unreasonable the care.
Any injuries, whether physical, psychological, or financial, that were caused by the unreasonable error are recoverable. The types of injuries can be numerous and vary in degree from the most minor injuries to the most catastrophic, including paralysis, loss of limbs, pain syndromes, brain injuries, and death.
One of the first things people want to know is how will my case be handled? There are several steps involved in any medical malpractice case: (1) Investigation; (2) Litigation; and (3) Trial. Each of these steps is aimed at getting to the truth.
Getting to know the people involved is the single most important part of any investigation. While there are complex medical issues in every case, at the end of the day, it’s still about the people involved and how their lives have been altered. We spend an abundance of time getting to know our clients, their family members, and even their friends and coworkers in order to truly understand and appreciate the magnitude of the situation.
Anyone who has read their own medical records knows that they are not always accurate. Medical records are often written by rushed workers who don’t realize that a minor detail omitted from the record may prove to be highly important years down the road. Other times critical records are written by the very people who committed an error after the error was made and after the injury was known. More than one case has been won based upon the memories, photographs, and videos that contradicted inaccurate information in the medical records. This information can only be learned though human interaction.
The importance of spending time with clients and the people who know them is important not only for proving that some conduct was or was not negligent, but also to learn how some injury is life changing.
Medical records, such as written doctor and nurses’ notes, CTs, MRIs, and X-rays, as well as the results of other tests are obtained and reviewed. These records assist in identifying who was involved and when, how, and even why something happened.
In addition to medical records, we consult the most up-to-date medical literature, journals, and guidelines to identify what was known in the medical community at the time the error occurred.
Before any lawsuit can be filed, it must be reviewed by a medical expert. A medical expert is usually a medical doctor who practices in the same specialty as the physician or nurse whose conduct is in question or performs the same procedure that caused the injury.
We consult with medical experts who are renowned throughout the United States and often the world for their expertise in a particular specialty or procedure. If a trusted medical expert, after reviewing the available information, determines that there has been an unreasonable error and it caused an injury, then a lawsuit can be filed.
Litigation is the process of taking legal action. Once a lawsuit has been filed, it is in litigation. Once a case is in litigation, we are granted powers that we did not have before the lawsuit was filed. For example, once a lawsuit is filed we are able to request corporate and other documents, require defendants to answer written questions, and compel witnesses to appear and answer questions under oath in a process called a deposition.
Trial is the final stage of litigation where members of our community are selected to hear and see the physical evidence, observe and judge the honesty of witnesses, and decide whether medical malpractice did or did not occur. Depending on the case, a trial can last from a few days to several weeks.
In presenting your case to a jury, we employ the most up-to-date trial strategies and approaches, rely on the most trustworthy and renowned experts, and use cutting edge demonstrative aids and exhibits.
We prepare every one of our cases with the full expectation that it will be presented to a jury in a trial. Great attention and detail is devoted to every case we agree to handle. Because of this, we must be extremely selective in the cases we accept and are unable to accept all, or even a high percentage, of the cases that are brought to us.
While the number of potential subjects of medical malpractice is endless, there are multiple scenarios that are most commonly the source of medical malpractice cases.
No. The terms “medical malpractice” and “medical negligence” refer to the same thing. “Negligence” is a failure to use “reasonable care” under the circumstances. When negligence is committed by a professional, such as a doctor, it is often referred to as “malpractice.”
The exact time you have to file a case depends on many factors, including the state where the malpractice occurred. In Ohio, the general time limitation for bringing a lawsuit (known as a statute of limitation) is one year from the date the malpractice occurred. R.C. 2305.113. There are several exceptions to this rule, however, that can extend the filing period beyond one year. Each of these exceptions depends upon the unique circumstances of the case. Once the statute of limitation has passed, it is permanent and likely impossible to file the case. If you have a potential case, it is critical that you speak to an attorney as soon as possible.
For a wrongful death lawsuit, you have two years from the date of the death to file a lawsuit. R.C. 2125.02.
The law permits fair and reasonable compensation for all of the harms and losses caused by the medical negligence. These include both (i) economic and (ii) non-economic harms and losses.
Economic harms and losses include past and future medical expenses. Medical expenses include the costs for services, care, and treatment (past and future) that a person would not need if the medical malpractice had never occurred, including medical bills for hospital stays, medications, physical therapy, psychological services, wheelchairs, equipment, and home modifications.
In addition to medical expenses, you are entitled to recover the lost wages (past and future) you would have received had you not suffered the injury.
Non-economic harms and losses are the real human suffering that injured people endure. These include no longer being able to do and enjoy the activities you once loved, the inability to find life fulfilling, the damage to interpersonal relationships, and commonly the loss of self-worth. These injuries are often the most difficult to cope with.
If a loved one dies because of malpractice, the surviving family members are able to recover any compensation that their loved one would been entitled to if they were still alive. For example, if the person was injured months before he died and suffered economic or non-economic loss (e.g., medical bills, lost income, pain and suffering), the family is permitted to recover compensation for those injuries just as if the deceased person had brought the lawsuit him or herself. To say it differently, a person’s medical malpractice case survives his or her death, and a lawsuit can be filed to recover for these injuries after the person has died.
The family members are also permitted to recover for their own loss through what is known as a wrongful death lawsuit. A wrongful death lawsuit allows surviving family members to recover for the harms and losses they have suffered because their loved one is no longer around. These include the loss of relation, mental anguish, and any financial resources the deceased family member would have contributed.
A bad outcome does not mean a doctor was negligent. Generally, it must be proven that no reasonable health care provider would have performed your procedure the way it was performed. It must be proven that your health care provider’s negligence was the cause of your injury or the death of a loved one.
It is common for patients to sign a consent, or approval, for a doctor to perform surgery. The form commonly requires the patient to consent to the surgery. The consent form usually includes a clause that allows the surgeon to perform any other procedures that may become necessary during the procedure.
Before signing the consent, your doctor must explain the surgical procedure to you, including all of the risks of the surgery and consequences of not having the surgery.
Regardless of whether or not you signed a consent form, if you can prove your physician misrepresented or failed to adequately inform you of the risks and benefits before the surgery, your consent may be invalid.
A patient cannot consent to negligence. Just because you signed a consent form to allow your surgeon to perform surgery, doesn’t mean that your doctor gets to act unreasonably. If your surgeon was negligent, then then the consent form is irrelevant.
Each year more than 200,000 people die from preventable medical errors and as many as 20 times more are injured but do not die.
Recent studies have revealed that medical errors are actually the third leading cause of death in the United States.
According to a Harvard University Study, for every 8 medical errors, only one malpractice claim is filed.
While medical costs have increased by 113% since 1987, the total amount spent on medical malpractice insurance has increased by just 52% over that time, less than half of medical services inflation.
The first thing to do is complete the contact form at the bottom of this page. That way, you can put in details that we can review before we schedule a phone call.
You can also call us at 216-777-8856 if you prefer.
You will likely not speak to us immediately, but will schedule a phone or in-person meeting. Why? Because we’re busy working on the important cases other families have entrusted to us. Just like we would not constantly take phone calls when we’re entrusted to work on your case.
You should also gather all the records and papers you have from the medical providers, go back and look for dates, names, and events that happened, and otherwise prepare to discuss the case. We’ll have a meeting and, if it seems like a case we’d be a good fit for, we’ll move into an investigation phase.
Once we’ve investigated, we’ll candidly tell you what we think about what happened, whether the medical provider is to blame, and what we think about the strength of the case.
Fair warning: we only take on clients whose cases we believe have very strong merits. We’re not lazy—the cases are still very complex, difficult, and expensive—but the risk to your family of being drawn into a difficult process with little chance of a positive outcome is not something we do.
Which means when we do take on a case, our reputation tells the other side this is a serious case we believe in.
If for whatever reason we do not take on the case, and we think there is some merit to the case, we’ll try and help you find a lawyer who might take it on.