What Constitutes Medical Malpractice?
Medical malpractice can encompass countless situations, such as:
- a doctor who misdiagnosed an illness or disease;
- a nurse who failed to monitor a patient’s vital signs during surgery;
- medical staff who turned off an alarm on a monitor, inhibiting alerts; and
- hospital staff who ignored a monitor’s alarms.
Simply defined, medical malpractice occurs when a healthcare provider’s actions or inaction deviated from the accepted standard of care – resulting in harm to the patient. Ohio law also entitles a patient to sue healthcare providers for reckless behavior, such as providing treatment while under the influence of drugs or alcohol, or neglecting to treat his or her own medical condition (such as an infection) that puts patients at risk.
On the other hand, a worsening condition does not necessarily constitute negligence. As long as your doctor provided the best treatment possible, he or she cannot be held responsible for the progression of a disease. Likewise, you may not file a claim if you suffer from an untreatable condition.
How Do I Know If I Have a Case?
No one can tell you that you have a case until your medical records have been reviewed by a qualified expert and that expert agrees to sign an affidavit attesting that you have a case. A medical malpractice lawyer can advise you of the procedures involved, the obstacles you should expect, and the costs that you will incur. Armed with this information, you will then be able to discuss what the next steps should be and whether or not you should pursue a case.
What Are the Most Common Types of Medical Malpractice?
Some of the most common examples of medical malpractice include:
- Failure to diagnose
- Surgical errors
- Anesthesia mistakes
- Medication errors
- Negligent supervision
- Failure to obtain informed consent
- Hospital-acquired infections
- Emergency room errors
- Delayed treatment
How Do I Prove Medical Malpractice?
In order to file a successful medical malpractice claim, you must prove four elements:
- that your physician or healthcare facility owed you a duty of care;
- that the standard of care was violated;
- that you suffered an injury; and
- that substandard conduct caused your injury.
Although the first element is easy to prove, the other three factors are more difficult and will require the guidance of an attorney who can determine liability and help build your case.
When you meet with your medical malpractice attorney, they will need:
- medical records;
- paperwork, such as bills, from the doctor or hospital in question;
- contact information for all eyewitnesses, such as in the case of nursing home abuse; and
- statements from family and friends who may have pertinent information.
Having this information will make it easier to prove your case. You may also have to enlist the services of an expert witness, who will testify that your damages were, in fact, caused by faulty medical care.
Who Can I Sue for Medical Malpractice?
Medical malpractice occurs when a healthcare provider or medical facility injures a patient under his/her/its care.
A healthcare professional can include a:
- hospital employee;
- anesthesiologist; and
- any other type of professional who works in the medical field.
A healthcare facility could include a hospital, clinic, or pharmacy.
What Is the Value of My Case?
In a medical malpractice claim, damages are determined by a number of economic and non-economic factors. Economic damages refer to funds that are awarded to the plaintiff as compensation for direct monetary loss and expenses that were incurred as a result of the defendant’s negligence. These damages also cover funds that the plaintiff is likely to incur in the future.
Non-economic damages, or non-pecuniary losses, apply to those things that cannot be summed up to a specific dollar amount but that cause unquantifiable harm, including:
- pain and suffering;
- emotional duress;
- mental anguish;
- psychological trauma;
- loss of consortium; and
- loss of the enjoyment of life.
Ultimately, the amount of compensation likely to be obtained through a medical malpractice settlement or trial varies based upon the nature and extent of the injuries, whether medical treatment is ongoing or future rehabilitation will be necessary, preexisting conditions, whether there were aggravating circumstances to the doctor’s or caregiver’s conduct, caps on damages, and the jury.
In some instances, punitive damages may be leveled against the medical professional. These are rare, however, because the plaintiff must prove that the doctor knew what he or she was doing was wrong, such as using the wrong medication because it’s less expensive for the hospital or intentionally making a small mistake such as a perforation to necessitate another surgery.
Are There Caps on Damages for Medical Malpractice?
Ohio lawmakers have passed a bill that limits the amount of reimbursement you may recover in a medical malpractice claim. There are two kinds of damages you may pursue: economic and non-economic.
Non-economic damages, including punitive damages, are currently capped at $250,000 per plaintiff or three times the amount of the economic damages, whichever is closer to a maximum of $350,000 per plaintiff and $500,000 per incident.
If you have suffered a catastrophic injury, such as the loss of a limb or an organ, your claim could recover up to $1,000,000 dollars per occurrence. Ohio medical malpractice law delineates certain criteria for what is considered “catastrophic.” An experienced attorney can help you determine whether your case qualifies.
What Is the Statute of Limitations for Medical Malpractice in Ohio?
The statute of limitations in Ohio is typically one year after the medical malpractice occurs or is discovered. This statute was enacted to prevent fraudulent lawsuits and is among the strictest in the country. The person being sued must be given notice within one year of the negligent act. If you’re nearing the end of that window, an attorney can write a “180-day letter” to give you that much more time to obtain medical records and build your case. Don’t forfeit your ability to recover compensation by allowing the one-year deadline to pass.
In cases where the injured party is a minor (under 18 years of age), the statute of limitations is tolled, which means that the clock hasn’t yet started ticking. Once the child reaches age 18, he or she will generally have one year to file a medical malpractice claim. This can vary depending upon the type of injury, when the injury was discovered, and if the child gave notice of intent to file a lawsuit to the defendant. In the latter instance, the claimant has an additional 180 days from the time of the notice to file the claim.
Note that there is also a maximum four-year deadline for filing. This may be extended up to a year when the claimant couldn’t have discovered the injury within three years after its occurrence, but, in the practice of reasonable care, notices the injury before the expiration of the four-year period.
What's the General Timeline of a Medical Malpractice Case?
No medical malpractice attorney can estimate how long your lawsuit will take. Ohio law is complex, and the evidence needed to prove your negligence claim could take some time to collect. Actions such as the following could shorten or lengthen the time it takes to achieve a result.
- Settling out of court – your case could be cut short if the insurance company offers a settlement that you and your medical malpractice lawyer feel is adequate.
- Participating in arbitration or mediation – if you do not wish to settle, but you’re leery of a long malpractice lawsuit, you could opt to go through arbitration or mediation with the individual or company responsible for your injuries.
- Going to trial – Because so many factors are involved, you may not reach a verdict for months or even years.
If you are taking your case to trial, the first step is to file a formal complaint in the appropriate civil court, which depends on the jurisdiction, or the location, the malpractice took place. Once the complaint has been filed, pretrial preparation begins with the discovery period. The discovery of facts is often accomplished in two ways: via interrogatories and depositions.
Interrogatories are questionnaires that witnesses fill out and are typically used for gathering preliminary details. Depositions are face-to-face interviews in which witnesses swear to tell the truth, and then the interviews are transcribed. Depositions give medical malpractice attorneys the opportunity to ask follow-up questions and gather more information. Once this data has been collected, the case moves into the trial phase, at which point the plaintiff has the legal burden of demonstrating that a medical mistake occurred.
Though the length of your case is unpredictable, there are things you can do, such as listening to and following the advice of your lawyer, that can ease the process and prevent errors that could cause a setback in getting you the compensation you deserve.
Can I File a Claim If I Wasn't Permanently Injured?
You can file a medical malpractice claim even if the injuries you experienced were temporary. However, negligence that causes temporary pain, disability, or disfigurement will not add up to a significant amount of damages. A medical malpractice attorney may advise you to consider the costs of filing a lawsuit — including his or her fees — and whether it will be worth the potential amount of compensation you may recover.
On the other hand, if a healthcare provider breached the standard of care but did not cause an injury, a patient may not be able to file a lawsuit. Malpractice cases primarily seek compensation for damages. If no damages occurred, the lawsuit will more than likely be denied.
How Should I Choose a Medical Malpractice Lawyer?
A medical malpractice attorney can help you recover compensation for treatment, rehabilitation, and lost wages when you’ve been seriously injured as a result of a mistake or negligence. However, most – if not all – lawyers offer free consultations. Likewise, most – if not all – will take your case on a contingency basis, meaning they don’t get paid unless you do. So how do you know who to hire?
First, you should choose someone you feel comfortable with, since your case may pend for weeks, months, or even years.
- Ask family, friends, and other attorneys for referrals, since suggestions from trusted sources are a great starting point.
- Contact the local bar association, which may have a referral service.
- Interview local attorneys and ask them for referrals, too. If several people suggest the same person, that will give you a good idea as to who’s reputable. If an attorney refuses to answer, he or she may not be confident enough that you will return for his or her assistance.
Second, they should have experience litigating cases like yours. It may be easier to establish rapport if you go into your first meeting with a list of questions.
When scheduling your appointment, you may want to ask:
- What evidence should I bring to our first meeting?
- How should I handle calls from the insurance company?
- How many [surgical error, amputation, etc.] cases have you handled?
- Can I talk to you when I have questions, or will I be dealing with your paralegal?
- Who will update me on how things are going? How frequently?
- How many clients do you take on at one time?
- Will there be any upfront fees or other legal expenses I should expect?
- What’s the statute of limitations in Ohio for this type of case?
- What’s the maximum amount that I can recover in my medical malpractice case?
- How long could this case go on for?
- Do you think my case will go to trial?
- Have you ever gone to trial for a case like mine?
No firm can guarantee a favorable outcome, but the person you speak with should be able to tell you about previous verdicts and settlements. A good lawyer will also tell you whether you have a viable case.
$28.7 Million Verdict for Birth Injury
A child was born with cerebral palsy as a result of oxygen deprivation during birth. Despite the use of a fetal heart monitor, the signs and symptoms of fetal distress were not recognized or acted upon by medical professionals. The family was awarded $28.7 million to provide for future care to their child.