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When Do I Need a Medical Malpractice Lawyer?

Legally Reviewed and Edited by: Terry Cochran

Medical malpractice is a very real problem across the U.S. Whether due to a lapse of concentration due to tiredness, wilful negligence, or defective products, malpractice can have a devastating effect on patients and their families. In 2015, Michigan saw 23.3 malpractice suits for every 100,000 people with a total payout of $71.6 million.

National payouts in medical malpractice cases averages about $6.7 billion annually but the costs to society – due to factors such as lost wages and disability payments – ranges from $17 billion to a staggering $29 billion. But what constitutes medical malpractice and when should you engage a lawyer to pursue a claim?

What is Medical Malpractice?

A good definition of medical malpractice can be found at USLegal. It states:

“Medical malpractice is the failure of a medical professional to follow the accepted standards of practice of his or her profession, resulting in harm to the patient. Usually, proof of failure to comply with accepted standards of medical practice requires the testimony of someone with expertise in the area of medical practice.”

There are many different parties who can be held liable for medical errors and the injuries caused. They can be at any stage of the medical treatment chain, from the manufacturers of equipment or drugs right up to surgeons and consultants.

There are also many different reasons or causes of negligence or medical malpractice. Some of the most common types of error or negligence includes:

  • Birth injuries. These can include prenatal care as well as injuries caused at the time of delivery. Birth injury suits regularly see settlements totalling millions of dollars when the injuries result in the need for lifelong and intensive care.
  • Errors during surgery. While you will always sign a consent form prior to surgery, this only covers the natural and predetermined risks of that particular procedure. It does not exempt mistakes or negligent actions that result in further injury.
  • Anesthesia mistakes. Giving a patient too much or too little of a particular anesthetic can lead to further issues and can be treated as malpractice.
  • Misdiagnosis. Perhaps the most common medical error, this could occur anywhere from a doctor’s office to an emergency room. A misdiagnosis can lead to the patient not receiving the treatment or medication they need or to them receiving the wrong treatment or meds which may cause further injury.
  • Product liability. This can happen when either equipment or medication is defective, causing harm to the patient. It may cover several scenarios, from drugs contaminated on the production line to faulty IV equipment.
  • Pharmacy and medication errors. These can occur when the wrong type of medication – or the wrong dosage – is administered to a patient.
  • Infections. Infections can occur when there is a failure to keep areas – or equipment – hygienic and sterile. These sorts of errors can have serious repercussions.
  • A failure to treat. This happens when a correct diagnosis has been made but the doctor in charge fails to provide or order the required treatment or medication. This category can also include scenarios where a care plan does not include adequate follow up plans or where the doctor fails to refer the patient to a specialist when needed.
  • Delays in diagnosis. This type of error can have several causes, including failure to read x-rays or other tests correctly, thus leading to a delay in the patient receiving the proper treatment.
  • Failure to diagnose. If a doctor fails to identify an illness or condition, then this can be viewed as negligence.

Most of these cases have one thing in common: We have to be able to prove that the defendant failed in their duty of care and that an equivalent and equal health care professional would not have made the same mistake. We expect a certain standard of care from medical professionals in any healthcare setting and showing that standard was not maintained and that there was medical negligence can be a pivotal part of any claim. The main things a plaintiff needs to prove are:

  • A breach in any duty of care actually happened. In a medical setting, duty of care is viewed as a form of contract between provider and patient. You expect them to exhibit and maintain a certain level of professional care and not to deviate from that.
  • There is evidence of that breach occuring. If a doctor is going to examine and treat you, they should be ensuring they have accessed all relevant information that is available.
  • Causation is provable. That is to say, that a direct link exists between any negligent act and the personal injury you suffered.
  • The harm caused to you resulted in damage. Damage can include financial and psychological harm. Economic damages can include any expenses for additional medical treatment as a result of the negligence as well as lost salary due to time lost from work. Psychological harm, especially long-term or lifelong may result in a pain and suffering element being added to any award.

A Lawyer Can be a Necessity

In some cases of medical malpractice, where guilt is clear and evident, insurance companies will often make a quick offer to the patient or, in the case of death, to family members.

The problem with this can be; insurance companies never like paying out and you can be very sure that any first offer represents a sum significantly lower than you may be entitled to.

There are many factors to consider when you examine the possible effects of medical malpractice. Depending on the seriousness of the harm caused, further medical treatment may be short-term or it may be lifelong. The latter is often a consequence of birth injuries with severe physical and cognitive disabilities meaning the infant requires constant medical care throughout its life. And in some cases, it’s not just about medical bills but about the need for adaptations to your home or vehicles for you to lead as normal a life as possible.

Any insurance company that represents the defendant, be it a hospital or a manufacturer in the case of product liability, will have a high-powered law firm on retainer to protect their interests.

Having Cochran, Kroll & Associates, P.C. representing you means that any courtroom battle is fought on a level playing field. We can analyze your medical records, call on other medical experts when there is a need for an expert witness, and represent you in negotiations with insurance companies or in the courtroom.

Defensive Medicine

One worrying development that has been noted as a result of the level of medical malpractice claims in the USA is what is known as “defensive medicine.” This is when medical staff do too much in a treatment plan to avoid any accusations of negligence.

While many see the idea of supplemental tests as a good thing – after all, surely too much is better than too little? – others point to the fiscal damage it is already causing, damage in the long run that will likely lead to higher insurance costs and potentially lower standards of care.

Some Final Thoughts

Needing medical treatment can be worrying enough for any of us, but when those who we entrust our care to – or the care of our loved ones – makes an error that causes further injury or harm, then that worry intensifies. Further medical treatment means more medical bills, and in some cases you may be facing personal care costs for life.

At Cochran, Kroll & Associates, P.C., medical malpractice is one of the areas we specialize in. We also have an experienced nurse-attorney as one of our senior partners. Eileen E. Kroll can help communicate with medical professionals and interpret your relevant medical records as well as discussing your case with other medical experts.

We operate on a strict no win-no fee basis and also offer a free initial appointment. You can schedule one today by calling 1-866-MICH-LAW.

Disclaimer : The information provided is general and not for legal advice. The blogs are not intended to provide legal counsel and no attorney-client relationship is created nor intended.

Steve is a former criminal justice worker. With degrees in psychology and social work, he spent most of his life helping those with addiction issues before switching to criminal justice. He was responsible for writing court reports and advising judges on sentencing. He also supervised offenders, including sex offenders, in the community and carried out risk assessments and probation appraisals. He now lives in SE Asia and is working on his 5th novel.



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