Medical Malpractice Basics: Do I Have a Case?

Filing a medical malpractice lawsuit takes skill and resources because it is a complex area of the law. If the outcome of a procedure or medical regimen is not what was planned, that does not mean that you are a victim of medical malpractice.

A solid definition of medical malpractice is the “improper, unskilled, or negligent treatment of a patient by a physician, dentist, nurse, pharmacist, or other health care professional” that leads to:

1. The patient receiving less than the accepted standard level of care, and
2. The patient suffering an injury because of it

For example: if your doctor believes you have a cold and recommends bed rest and Vitamin C, but you turn out to have the flu, you are not the victim of medical malpractice: a cold and a flu are similar enough to be diagnosed and treated in the same way, and you were not seriously or permanently injured.

But if you are diagnosed with a cold, and it turns out that you have bacterial pneumonia which can lead to the infection spreading through your bloodstream (known as sepsis) – a potentially life-threatening illness – then you may be able to begin a lawsuit for medical malpractice for your doctor’s failure to recognize, diagnose and treat your symptoms at the accepted standard of care if you were in fact harmed as a result of the error.

What to expect during a lawsuit

If you believe you have been a victim of medical malpractice, you should speak with an attorney within three (3) years if you live in Washington, D.C. and two (2) years if you live in West Virginia. It is important to seek out a medical malpractice attorney, as opposed to a general practice lawyer, because medical malpractice laws are complex; you want someone who understands not only how the laws will affect your particular case, but also someone who has experience negotiating with insurance companies as well as taking a case to trial. Your lawyer will need:

• Your medical records, including a medical history
• Records of your medical expenses, including medications, doctors’ visits and hospital stays
• Your work history to determine how much money you lost during your illness

Very, very few medical malpractice cases are settled before trial. In medical malpractice, there is no such thing as a “quick settlement.” Your attorney must prove, in general terms, during negotiations or trial that:

• The health care provider did not perform his or her duty as a health care provider
• The health care provider is in breach of the standard of care
• Your injuries or illness are the direct result of that breach
• Your medical bills, lost wages and pain and suffering deserve compensation

In West Virginia, the most you can collect for a catastrophic injury is usually $350,000 in non-economic damages (though some cases may be awarded up to $650,000 depending on the circumstances) which include things like pain and suffering; Washington, D.C. has no damage caps for medical malpractice cases. Neither Washington, D.C. nor West Virginia have caps on economic damages, so your medical expenses are not combined with how much compensation you can receive for your pain and suffering.

Furthermore, medical malpractice attorneys in Washington, D.C. and West Virginia work on contingency. That means you do not have to pay them if you lose your case. Most law firms will front the costs of the case as well, because they will only take cases that they believe in. This type of attorney-client relationship assures that both the client and the attorney believe they have a chance to be successful.

If you have questions about medical malpractice cases, we contact Paulson & Nace, PLLC.