When you go to someone for help, it can be disheartening to end up in a situation where you are somehow worse off than before you sought assistance. When you visit certain credentialed professionals for medical help and this happens, it’s referred to as malpractice. When it occurs in medicine, it’s medical malpractice.
When you’re injured because of medical malpractice, you will likely have to deal with a variety of costs. Additional medical bills, pain and suffering, and missed work time are all possibilities. According to the law, you have a right to compensation for these things. However, the insurance companies that pay out the restitution usually don’t do so easily. Your fight, though, can be our fight. At the Tatum Law Firm, we are proud to help our clients seek and get what they’re owed.
Medical malpractice covers a broad category of potential errors. Medical malpractice could be a problem with diagnosis, medication errors, testing mistakes, surgical mistakes, and even policy issues with medical institutions. The uniting element of these errors is that it is an injury created through the process of attempting to diagnose, treat, or care for another medical condition. However, because the range of potential issues that could be considered medical malpractice is so broad, there is also a wide range of potentially liable parties. Although medical personnel are the most common defendants in a medical malpractice claim, they are by no means the only possibility:
Medical malpractice is a subset of personal injury law. What this means is that, generally, a medical malpractice claim is going to follow the same process as most personal injury claims, except for a few subtle changes that are meant to address the unique nature of medicine and the ways it doesn’t conform to standard situations. For instance, it’s well understood that in medicine, a doctor and medical team might do everything correctly, but that doesn’t guarantee a patient’s condition will improve. Therefore, continued illness, while sometimes an indicator of malpractice, may also be inevitable regardless of the doctor’s actions. This is different from something like a car accident where there is an error on the part of some party involved for there to be an accident.
The first step in proving medical malpractice is clarifying the duty to meet the standard of care for a given medical situation. In other words, if a patient has a certain set of symptoms, there are medical standards regarding what kind of tests and diagnostic methods should be done. Similarly, certain indicators are expected to lead to certain diagnoses, and certain conditions have a standard protocol of treatment. There is also the expectation that tests, monitoring, and treatment are executed in a way that is on par with the standard of care. It must be shown that there is a standard expectation of care, usually through expert witnesses of parallel credentials and positions, that applies to the plaintiff’s situation. Generally, this will be the case in most situations. However, if the patient has a particularly obscure condition, there may not be a standard that would apply.
The reason for focusing on this standard of care is that it is something that can evolve and change over time. As our medical understanding of various conditions changes, so too will testing and treatment protocols. Establishing the standard of care at a particular point in time ensures the defendant will be compared with what the patient could and should have expected to receive in that situation.
The next element that the plaintiff’s lawyer must show is that there was a breach of duty and the defendant failed to live up to the standard of care. Generally, this means explaining how the defendant failed to act in such a way that a reasonably careful peer would have in the same situation. Proving both the standard of duty and breach can be challenging, though, as most people are not particularly familiar with the practice of medicine, terminology, and what to expect in these situations. It’s possible that your lawyer will make use of expert witnesses who are able to help explain in court what should have been done in the situation in question and how what was done deviated from that expectation.
Finally, the breach of duty — the failure to live up to the standard of care — must be shown to be the cause of the injury that the plaintiff has suffered. There is no medical malpractice if there is not an injury. In other words, if a doctor happens to misdiagnose a patient, but the treatment still manages to correct the condition, then there is not a case of malpractice. The easiest form of injury to prove is if there is a whole new condition as a result of the failure to meet the standard of care. However, the injury could also take the form of the worsening of a patient’s current condition or a prolongation of their condition. Both of these forms of injury can be a little more challenging to prove. Again, it is possible that expert witnesses may be a central component of proving this element.
The monetary compensation in personal injury law is referred to as damages. These are paid out for costs that are associated with the injury that the plaintiff sustained. There is an element of proof, though, involved with this component of the civil process. The plaintiff’s lawyer must prove that the costs they are seeking damages to cover are indeed the result of the injury that was a product of the failure to provide the standard of care. At times, the defendant may argue, particularly when it comes to non-financial costs like emotional distress or loss of enjoyment in life, that these conditions are either non-existent or unrelated to the injuries. The damages paid out in a medical malpractice case fall into a few different categories.
Economic damages cover the costs for things that are easily calculated. Costs that have a bill or financial component associated with them are paid out through economic damages. In the case of medical malpractice, this is most often something like medical bills, lost wages from missing work, or even projected future costs for serious injuries. Things like ongoing medical expenses and treatment and lost earning capacity can be estimated and paid out through economic damages.
Non-economic damages cover the cost of things that can’t really be calculated. Medical malpractice injuries can lead to things like pain and suffering, emotional distress, and other emotional and psychological costs. These problems can’t necessarily be solved by money, but the reduced stresses in other parts of life that money offers may create space for the plaintiff to be able to manage these issues. With the help of calculations and looking at precedent, a value is placed upon these things and compensated through non-economic damages.
A third kind of damages, punitive damages, could be awarded in some cases. However, these damages are only awarded in situations where the defendant’s behavior was particularly egregious or malicious. This is generally very rare in medical malpractice cases, although it can be awarded at times. For example, if there was some sort of fraudulent attempt to cover up the malpractice or major institutional issue, there is a greater likelihood that punitive damages could be awarded.
There are a couple of different ways that the damages for a medical malpractice case could be limited. One way is the cap on non-economic damages for medical malpractice claims. This is an inflation-adjusted cap for each year and involves a cap on any one individual healthcare provider as well as a total claim cap for cases involving more than one provider as a defendant.
The other potential element that could lead to you not receiving the full compensation that you are owed for a medical malpractice claim is South Carolina’s contributory negligence rule. This rule allows for the possibility that the patient may have contributed to their condition. The defendant’s lawyers may argue that because the patient failed to follow the prescribed treatment plan or some other instruction from the healthcare providers, they are partially at fault for their condition.
If the defendant’s lawyers are successful in this effort, then a percentage value for the patient’s blame will be assigned. If that value is greater than the defendant’s, then the plaintiff will receive no damages. Otherwise, the damages they receive will be discounted in proportion to their share of the blame. If the plaintiff is 15% at fault on a $1 million award, they will receive $850,000.
A medical malpractice lawyer can be critical to the success of your case. Most likely, your opposition is going to be an insurance company with a team of lawyers on their side. When you work with the right lawyer, though, that can help even the odds and give your case a strong chance at a favorable outcome.
The first thing we do at the Tatum Law Firm is a thorough investigation of the circumstances surrounding your injury. We will need to look closely to understand where any potential liability may be found. We will also gather facts and evidence, possibly interview those involved, and maybe even work with uninvolved physicians and medical personnel to ensure we have a comprehensive understanding of the situation.
We can also work with the insurance companies on your behalf. In many cases, a settlement can be advantageous to both sides, as it avoids the long, expensive process of a court case. We have experience and a firm grasp of the negotiation tactics that the insurance companies use. That, though, is not the only benefit of having a lawyer negotiate on your behalf. Working with a lawyer carries the implicit possibility of a claim against the defendant. This can be a valuable tool for getting insurance companies to take the negotiations seriously, as they would generally prefer to avoid going to court as well.
Even though a negotiated agreement may be preferable, sometimes the offer is simply not a reasonable one, and going to court is the only choice left — and we are ready to represent you through that process. We are fully prepared to make the case for liability on the part of the defendant. In light of the risks of contributory negligence, we can also confront any arguments that you were at fault. Finally, we work to put together a comprehensive damages request that should fully compensate you for what you’ve gone through.
When you pick a lawyer to represent you in a medical malpractice claim, you want to be sure you feel confident in your choice. You’re asking them to take on a significant responsibility, and you want to know that you’ve chosen someone you believe will fight hard for you and your interests. You also want to know that you’ve decided to work with someone who is up to the task. There are a few traits, then, that you may want to look for when choosing a medical malpractice lawyer:
We understand how disheartening a medical malpractice situation can be. Our expectation is that the medical system will help improve our situation or, at the very least, give us some clarity. For most of us, the last thing we would expect is that we would somehow be made worse off by our encounter with the medical system. Sadly, though, mistakes and errors do happen. You are legally owed compensation for the injury and cost of injury that you experience from medical malpractice. However, if there’s one thing experience has taught us over the years, it’s that just because you are legally owed something, it doesn’t always come easy.
The insurance companies that are responsible for paying out medical malpractice claims often fight to avoid the hit to their profits. That doesn’t mean you need to lose hope, even though we know that after dealing with the fallout of medical malpractice, the last thing you want is a fight. At the Tatum Law Firm, we will take on that fight for you. We can aggressively negotiate with the insurance companies to get what you deserve, and if that’s not possible through negotiation, we are ready to take the claim to court. Contact us today to discuss your medical malpractice situation.