When Can You File a Medical Malpractice Suit?

If you or a family member have been injured or had a condition worsened as a result of the negligence of a medical professional, then it is possible to file a lawsuit for medical malpractice.

It’s something we’ve all heard of through advertisements on television, and many of us have conflicting opinions on whether or not it is the right thing to do.

Let’s take a look at what exactly constitutes medical malpractice when you can make a claim and how you can take steps to protect yourself against being the victim of medical malpractice.

What is medical malpractice?

According to the American Board of Professional Liability Attorneys (ABPLA), medical malpractice is when a healthcare professional such as a doctor, nurse, or other hospital employee causes illness or injury to a patient through a negligent act or through omission.

To be considered medical malpractice under the law, the case must meet the following criteria.

  • The medical professional in question violated the standard of care. Under the law, it is accepted that diligent and competent medical professionals must meet a certain standard of care. If the care provided does not meet this standard, then there is a possibility of negligence being established.
  • An injury was caused. An undesirable health outcome isn’t enough to establish medical malpractice. There must be proof that an injury was caused to the patient and that this injury resulted from negligence. If negligence is present with no injury, or an injury is present without negligence, then there is no case.
  • The injury resulted in damages. Medical lawsuits can be expensive to pursue, so the patient must have suffered significant damages that have impacted their quality of life to make a medical malpractice lawsuit viable. Essentially, it must be likely that the amount of money awarded from the lawsuit will be greater than the cost of pursuing it.

Statute of limitations

Each state has its own statute of limitations which dictates the amount of time that a claimant has from the incident of malpractice in which to start your case.

The definition of whether a case has started also differs slightly from state to state. In some states, it is enough to have filed your initial complaint; in others, you will need to have obtained an affidavit from an expert witness confirming that your case has merit.

If you try to file your case with the court after the statute of limitations has expired, then it’s highly likely that it will be dismissed. The only exception to this is the discovery exception, where you could not have known that you were the victim of medical negligence until after the original statute of limitations had passed.

In these cases, the statute of limitations would begin from the time that you made the discovery of negligence.

What to do if you’re the victim of medical malpractice

If you believe you have been the victim of medical malpractice, then it’s a good idea to seek advice from an experienced personal injury lawyer like Brown and Crouppen.

They will be able to draw on their experience to advise you on whether your case has merit and whether it is worth pursuing. If it is, they will be able to guide you through the process and advise you on what to do next.

How to protect yourself against medical malpractice

It can be tempting to have blind faith in medical professionals’ opinions; after all, they have spent a long time training and becoming experts in their field.

However, it’s important to remember that medical professionals are human beings like the rest of us, and they can’t possibly know your body as well as you do; after all, you live in it every day!

While it is important to take medical professionals’ advice seriously, you can empower yourself by doing your own research on your condition and ensuring that you understand it fully. If you don’t agree with something that your healthcare provider is saying to you, or it doesn’t feel right, then you should always question them so that you understand their meaning.

It’s always acceptable to get a second opinion, and you are allowed to take someone to medical appointments with you if this makes you feel more comfortable. It can also be helpful to have someone else there to help you to remember what was said, as you can often be in a heightened emotional state when discussing your health which will impact your memory.

How many malpractice suits are filed

There is an idea that medical malpractice suits are being filed all the time, but in reality, since 2001, the number has been steadily declining.

In 2001 in the US, there were just over 16,000 paid medical malpractice claims against healthcare professionals. In 2016 that number had dropped to below 8,500, which is a 50% drop!

The number of suits varies wildly according to which state you are in, but it’s important to remember that malpractice isn’t common, and you can still feel comfortable in the care of medical professionals.

Can your doctor refuse to treat you if you’ve filed a claim?

Many people don’t want to make a claim for medical malpractice because they are concerned that their doctor might refuse to treat them or that their healthcare bills might go up if they do (they won’t).

In general, doctors are not allowed to refuse to treat patients. There are a few exceptions to this:

  • If patients are abusive, a doctor can refuse to treat them. This would be taken on a case by case basis as, of course, there could be a medical reason for the behavior; for example, someone having a mental health crisis might be abusive but who also needs immediate attention. In general, severely unwell patients will always be treated unless their behavior will have a detrimental impact on other patients and staff members.
  • Doctors won’t provide treatment outside of their scope of practice. For example, a cardiologist wouldn’t treat you for a broken arm. However, they probably would refer you to someone who could help you.
  • Requested treatment can be refused if it would ultimately harm the patient. If, for example, a patient requested antibiotics, but the doctor knew this wasn’t the right treatment and could promote antibiotic resistance, they probably wouldn’t prescribe them.

You still have a right to receive treatment after filing a malpractice suit. However, you can choose to see another physician if this makes you feel more comfortable.