FAQs for Medical Malpractice
- What is medical malpractice?
- What is negligence in a medical malpractice setting?
- How does our firm determine whether to file a medical malpractice lawsuit?
- How do you select and find experts?
- What is causation?
- What damages does the law allow in medical malpractice cases?
- What are economic damages?
- What are noneconomic damages?
- What are punitive damages, and can they be recovered in medical malpractice cases?
- I got worse after seeing my doctor, and I think my doctor made a mistake. Do I have a case of medical malpractice?
- Explain what you will do if I consult with you, and how much it costs?
- What considerations are taken into account in determining whether you will file a case?
- What is the possibility of a quick settlement if my doctor made a terrible mistake?
- How do I know that you will do a good job on my case?
Q: What is medical malpractice? (top)
A: In general, the terms "medical malpractice" or "medical negligence" refer to negligence cases brought by an injured patient against a health care provider or health care entity such as a hospital.
Q: What is negligence in a medical malpractice setting? (top)
A: In a malpractice case, the jury is instructed that negligence means the failure to use that degree of skill and learning ordinarily used under the same or similar circumstances by members of the defendant's profession. This degree of skill and learning is called the "standard of care." "The standard of care" is generally proven through the testimony of expert witnesses who establish the applicable standard and explain how the health care provider deviated from that standard. For example, the standard of care generally requires a physician to take an adequate medical history, to do perform an examination, order necessary laboratory studies, properly interpret the results and to evaluate the data in order to form a "differential diagnosis," or list of possible explanations forth the patient's presentation. A physician should also disclose significant risks and obtain informed consent from patients, give treatment only for proper medical reasons, prescribe correct medications, provide proper follow-up, obtain appropriate consultations, and provide patients with current therapy or treatment options.
Q: How does our firm determine whether to file a medical malpractice lawsuit?(top)
A: First, we must determine if we can meet our burden of proving three things: 1) that the health care provider breached the standard of care; 2) that there are substantial damages; and 3) causation, meaning that the breach of the standard of care caused the substantial damages.
Q: How do you select and find experts? (top)
A: "Experts," in court, are people who are specially qualified by experience or training and possess knowledge on matters not commonly understood by the general public. In medical malpractice cases, there are often numerous experts needed on a variety of issues, including negligence, the nature and extent of the damages, and the causal link between the negligence and the damages. Our firm attempts to bring the highest caliber of expert witnesses to each case.
Q: What is causation? (top)
A: "Causation" is an important legal concept that means the negligent act of the health care provider must have caused, or contributed to case, the injuries and damages claimed by the patient. Many cases are defended on the ground that there is no causal relationship between the claimed damages and the alleged negligence. Consider, for example, a case claiming negligent failure to diagnose lung cancer resulting in a delay of a year or more in treatment, where the patient eventually died. The defense may contend that there was no causal relationship between the year's delay and the death. The physician's defense could be that the original cancer was not treatable in the first place, so the delay in starting treatment, while negligent, was of no causal consequence.
Q: What damages does the law allow in medical malpractice cases? (top)
A: Generally, the plaintiff is to be reasonably compensated for all injuries and losses resulting from the occurrence in question. Damages are split into two general categories: economic (past and future), and noneconomic (past and future).
Q: What are economic damages?(top)
A: Economic damages include almost anything that can be replaced with money. This category of damages is very broad and will be variable from case to case. Economic damages always include the reasonable expenses of necessary medical care, hospitalization and treatment; loss of income or earning capacity; loss of time; the reasonable value of services provided by family members for free; the cost of hiring others to perform normal household duties; and the loss of the injured person's services to his or her spouse. These losses may be projected into the future on the basis of expert testimony regarding continuing disability and the cost of future needs or losses.
Q: What are noneconomic damages? (top)
A: Noneconomic damages are those losses which cannot be quantified in a dollar amount. The most prominent examples are pain and suffering, mental anguish, inconvenience, physical impairment or disability, disfigurement, and loss of enjoyment of life. The importance of categorizing damages as economic or noneconomic lies in the fact that noneconomic damages are often capped under state law. For example, in Kansas, noneconomic damages are capped in all personal injury cases at a maximum of $250,000, no matter how many defendants contributed to cause the injuries, and no matter how bad the injury. We often see cases where people's lives are devastated by catastrophic injuries, but if they are children or elderly, economic losses are limited and the capped amount of noneconomic damages is unfairly inadequate. In Missouri, while most personal injury cases are not subject to damage caps, noneconomic damages in medical malpractice cases have a cap of approximately $350,000.
Q: What are punitive damages, and can they be recovered in medical malpractice cases?(top)
A: Punitive damages are not based upon the severity of injury to the plaintiff, but rather upon the need to punish the defendant and deter others from engaging in like conduct. While negligence by a health care provider may entitle the injured party to compensatory damages, both economic and noneconomic, negligent conduct does not subject the defendant to punitive damages. Before punitive damages may be awarded, the plaintiff must prove that the defendant acted in a "wanton or intentional" way, which includes the "reckless disregard of a known danger" to the plaintiff's health and safety. This must be proven by clear and convincing evidence. Punitive damages are extremely rare in medical malpractice cases, but available in appropriate circumstances.
Q: I got worse after seeing my doctor, and I think my doctor made a mistake. Do I have a case of medical malpractice? (top)
A: Most people who come to us have both a poor treatment outcome and an unsatisfactory explanation of the reasons (or no explanation at all) from the health care provider. A poor outcome, in and of itself, is not medical negligence. An investigation of the true facts is necessary before we can say if you have a case. There are many explanations for poor outcomes. Sometimes conditions are not easily treatable and treatment simply fails. Doctors are not guarantors of results of even the best therapy. Sometimes treatment, like surgery or chemotherapy, carries a risk of complications, like infection, for example. As mentioned earlier, in some cases, the health care provider may, in fact, have been negligent, but the negligence may not have caused injury. Finally, there are some cases where there is clearly negligence that caused injury, but the damages are not sufficiently severe to justify the response of a medical malpractice case. .
Q: Explain what you will do if I consult with you, and how much it costs?(top)
A: First of all, we will not charge you for any of the time we spend visiting with you or in the investigation of your case. We work on a contingent fee, meaning we are careful about what cases we accept because we only earn a fee if we win a recovery for our clients. We start with an interview to determine the facts as you know them, and make a judgment about whether the case is one which falls within our expertise and interest. The ensuing investigation begins with the collection of all pertinent medical records directly from the health care providers. We ask you to sign releases authorizing us to obtain these records. We then review and analyze the records to determine exactly what happened, and then research the medical literature to identify questionable areas of medical practice. If we believe there is a strong probability that medical malpractice occurred, we will submit your records to appropriate experts for review, asking them for their opinions on the issues of negligence, damages and causation. This review can be quite expensive and time-consuming (anywhere from $2,000 to $10,000 per expert). The financial arrangements for investigations are determined on a case-by-case basis. If, after consultation with experts, we believe that we can satisfy our burden of proof, we recommend that the case be filed.
Q: What considerations are taken into account in determining whether you will file a case? (top)
A: There are legitimate and meritorious cases of medical malpractice which we do not take as a matter of firm policy. We try to balance the probable result of a case, either by settlement or by jury verdict at trial, against the cost of obtaining that result. Medical malpractice cases are extremely time-consuming, and absorb a tremendous amount of our firm's resources. We handle medical malpractice cases by a "team" approach, usually involving a principal attorney, an associate attorney, a paralegal, and one or more secretaries. In addition to our time and resources, medical malpractice cases have a high out-of-pocket cost for experts, depositions, travel, research, trial exhibits, and many other things. As previously mentioned, in all cases, we must determine if the matter is "economically feasible." We do not handle cases where the time, resources and expense at risk outweigh the probable result we can obtain on behalf of our clients.
Q: What is the possibility of a quick settlement if my doctor made a terrible mistake?(top)
A: In our collective experience, quick settlements can occur, but almost never in amounts that are realistic or reasonable. If you are willing to deeply discount and compromise your claim, there are health care providers and insurance carriers who will be glad to buy you off very cheaply. If you want a settlement that is fair and reasonable, do not expect that to happen quickly. Health care providers are reluctant to admit mistakes, and almost routinely insist that their insurance companies defend them aggressively. It is usually not until thirty days before trial that serious settlement discussions occur. In the venues in the Kansas City metropolitan area, most medical malpractice cases can be resolved within eighteen months to two years, more or less. Therefore, we tell our clients not to anticipate a quick settlement, but rather to get on with their lives and be very patient in regard to settlement. Impatience can be extremely costly, considering what is at stake in these cases.
Q: How do I know that you will do a good job on my case? (top)
A: We believe that experience and results count. Our firm has placed our biographies and several of our Newsletters on this website, which will give you a good sampling of our experience and results. We have a commitment to getting an excellent result in every case we decide to pursue, and our track record and credibility are extremely important to us. Please keep in mind, however, that every case is different and no result is guaranteed. We can, however, promise our best effort and the benefit of our experience and resources on each and every case we accept.
