Free Georgia Medical Malpractice FAQs | Free Georgia Medical Malpractice Legal Documents

What Happens If I Am Injured In The Course Of Medical Treatment?

Tue, 29 May 2007 21:19:00 GMT

If a medical professional makes an error that results in injury to the patient, the patient may be able to sue the negligent party or parties for monetary damages to compensate him or her for the medical injury. Medical malpractice claims arise when a health care professional or organization provides unskilled or negligent treatment that results in injury to the patient.

The underlying basis for a medical malpractice claim is that you sustain an injury as a result of treatment that falls below the accepted standard of medical care for that particular field of professional expertise. Some examples of medical malpractice include incorrect diagnosis or failure to diagnose, failure to treat, improper treatment, delay in treatment, prescription errors, surgical errors, foreign object left in the body, failure to properly monitor a patient, failure to order necessary tests, birth injuries, rendition of services without informed consent, etc.

How Do I Know If My Injury Constitutes Medical Malpractice?

Tue, 29 May 2007 21:19:00 GMT

Medical professionals are not expected to be infallible and there may be poor results from treatment that do not amount to malpractice. Medical professionals are expected to exercise the basic knowledge, skills, and care ordinarily possessed and exercised by other members of the profession acting under similar conditions and circumstances. This basic knowledge and skill is called a standard of practice, or standard of care. When a medical professional treats a patient and fails to use this basic knowledge, skill, and care whether the failure consists of doing something incorrectly, or failing to do something that should be done, that failure is a deviation from the standard of practice or care.

The injured party has the burden of proving that the alleged actions of the health care provider represented a breach of the prevailing professional standard of care for that health care provider. That means the health care provider failed to act as a reasonably prudent health care provider in Georgia would under similar circumstances. The injured patient must then prove that the health care provider`s breach of the standard of care was a proximate cause of the injuries to the patient. In other words, there must be a close connection between the action of the doctor and the harm to the patient. Likewise, a hospital owes their patients a duty of ordinary care to provide equipment and facilities reasonably suited to the intended uses and such as are in general use in similar hospitals under similar circumstances. Expert testimony is generally necessary to prove a deviation of the standard of care under the facts and circumstances applicable to the patient`s condition.

It is important to note that medical malpractice claims are very difficult to prevail in and are also extremely expensive partly due to the need for qualified expert review and testimony. In fact, a medical malpractice complaint must generally contain an affidavit of an expert stating that the facts justify a claim of negligence. The complaint is subject to dismissal for failure to file the affidavit in a timely manner. Whether or not you have a good case depends on the professional judgment of attorneys and medical experts. If you are told that you do not have a case with merit, you should seek another opinion from one or more other attorneys.

Is There A Time Limit In Which I Need To File A Lawsuit For Medical Malpractice?

Tue, 29 May 2007 21:19:00 GMT

Yes, there is and that time limit is referred to as the statute of limitations. Failure to file suit within this time frame prevents you from filing suit at all. For medical malpractice claims, Georgia has a twoyear statute of limitations and a fiveyear statute of repose. The statue of repose means that in no event may an action be brought more than five years after the date of the alleged negligent act. These limits apply to minors except that the limitation period will never run prior to the claimant`s seventh birthday and the statute of repose will never run until the child`s tenth birthday. The twoyear limitation does apply to a parent`s claim for the child`s medical expenses. Foreign object cases may be brought anytime within one year of discovering the object. The term foreign object includes a chemical compound, fixation device, or prosthetic aid or device.

There are special claims presentation requirements for claims against state and local government. For claims against the state or the county, written notice must be presented within twelve months and prior to filing suit. For municipal government, you must present a written claim within six months of the alleged wrongful act.

Who Can Be Held Accountable For The Medical Malpractice?

Tue, 29 May 2007 21:19:00 GMT

Generally, a medical malpractice claim can be brought against a licensed health care provider. This can include a person, corporation, facility or institution licensed by the state to provide health care or professional services, or an officer, employee, or agent thereof acting in the course and scope of his employment. A claim can be brought against physicians, dentists, nurses, therapists, hospitals, and pharmacists, among others. A physician commits medical malpractice if he fails to act in the same manner a reasonably prudent physician in the same field of medicine would act under the same circumstances. Nurses, therapists and other health care providers, and the hospitals or clinics they work for, can be held responsible for their failure to meet accepted standards of care in their particular field. Depending on the circumstances of the case, a hospital may be held liable for the negligence of their independently contracted physicians. Factors to be considered include whether the hospital negligently granted the physician privileges or directed the physician`s method of treating patients.

There may be more than one cause of an injury. When the negligent conduct of two or more parties contributes concurrently as causes of an injury, liability is apportioned severally based upon each party`s degree of fault. However, if the claimant is without any fault, joint and several liability is imposed on each defendant.

Does Signing A Consent Form Waive My Rights To File A Lawsuit For Medical Malpractice?

Tue, 29 May 2007 21:19:00 GMT

Signing a consent form in and of itself does not waive your rights. It is possible that the consent form does not contain all of the relevant information that it should or it may have been signed without adequate explanation. Even if you signed a consent form, you did not consent to substandard medical care. A doctor`s failure to meet the acceptable standard of care is not the same as consenting to the normal risks of a procedure.

How Much Can I Expect An Attorney To Charge To Handle A Medical Malpractice Case?

Tue, 29 May 2007 21:19:00 GMT

Most attorneys who believe a case has merit will take the case without payment up front. They will take the case on a contingency basis, which means they will receive a percentage of your award if and when you recover for your injuries. Contingency fees average between 25 and 40 percent. Most attorneys charge a smaller percentage if the case is settled before the attorney does all the work necessary to go to trial. If you and your attorney agree to a contingency fee, the attorney must put the agreement in writing and provide you with a signed copy. Some attorneys will charge an hourly fee or a flat fee for their services.

The attorney`s out of pocket costs are, in many cases, not included in the attorney`s fees. You should be sure to pay attention to how an attorney will bill you for costs. In a medical malpractice case, these expenses can be quite high. Many attorneys will decline a case unless there is potential for a substantial verdict or settlement.

What Damages Can Be Recovered For Medical Malpractice?

Tue, 29 May 2007 21:19:00 GMT

As a victim of medical malpractice, you can sue for your injuries and all of the direct consequences of those injuries. You can recover your actual economic losses such as the costs of reasonable and necessary medical care, rehabilitative services, costs of domestic services, and loss of earnings. The law allows compensation for future medical and care expenses that the claimant can prove will be reasonably necessary to treat the injury caused by the malpractice. The claim may include income the claimant can prove will probably be lost in the future because of the injuries. Loss of earning capacity is also allowed when the patient proves he or she is less able to earn a living as a result of the injuries caused by the malpractice.

You are also entitled to noneconomic damages for physical pain and suffering, mental and emotional suffering, inconvenience, physical impairment, disfigurement, loss of enjoyment of life, etc. There is no definite standard of calculating reasonable compensation for these types of damages other than being just and reasonable in light of the evidence.

In certain instances, damages may be awarded to families of injured claimants for loss of care, companionship, love and affection. When a child is injured, the child and the child`s parents have separate claims. The child`s claim may include physical and mental pain and suffering, and future medical expenses and income loss that will occur after the child turns eighteen. The parents` claim can include all medical and other necessary expenses related to the injury of the child up to age eighteen, and loss of the child`s services.

Family members can be compensated for the wrongful death of a loved one. Generally immediate family members including spouses, children and parents can pursue a claim. The measure of the damages is the full value of the life of the deceased from the decedent`s perspective. These damages may include medical and burial expenses; loss of income that would have supported the family members; loss of benefits such as pensions, insurance coverage, etc; loss of inheritance; emotional suffering; loss of care, protection, companionship and the pleasures of the family relationship.

Punitive damages are intended to punish a defendant and are only awarded when a plaintiff presents clear and convincing evidence of willful misconduct, malice, fraud, wantonness, and oppression. In Georgia, punitive damages are limited to $250,000, unless the claimant can demonstrate that the defendant had specific intent to cause harm.

For actions against the state, the claimant`s recovery is limited to $1,000,000 and the state`s total liability per occurrence may not exceed $3,000,000.

Any settlement will be reduced if there appears to be a good chance that the claim will not be successful. If you were partially at fault for your injuries, the amount of the damages will be reduced proportionately. Other factors that may reduce the damages include past medical history, preexisting injuries, and prior claims history.

Will We Have To Go To Arbitration?

Tue, 29 May 2007 21:19:00 GMT

Arbitration is not mandatory in the State of Georgia. The parties may agree to arbitration but the agreement cannot be made prior to the alleged act of malpractice and the claimant must be represented by an attorney. The findings of the arbitration panel are final, however, a party may appeal those findings.

What Is The Collateral Source Rule?

Tue, 29 May 2007 21:19:00 GMT

Georgia has held that allowing tort defendants to reduce damages by introducing evidence of payments to the claimant from collateral sources unconstitutional.

What About Contributory Or Comparative Negligence?

Tue, 29 May 2007 21:19:00 GMT

Georgia has adopted a variation of comparative negligence. A claimant's action is barred if he could have avoided the consequences of the defendant's negligence. Otherwise, the claimant's recovery is diminished in proportion to his degree of negligence.

The right of contribution is available to joint tortfeasors who are jointly and severally liable. The right of contribution is not affected by a compromise or settlement. While the right of contribution arises at the time of the initial litigation, it can be enforced in a separate action as well.

Is Expert Testimony Required?

Tue, 29 May 2007 21:19:00 GMT

A medical malpractice complaint must generally contain an affidavit of an expert stating that the facts justify a claim of negligence. When a claimant fails to file an affidavit in a timely manner, the complaint is subject to dismissal for failure to state a claim.

Immunities?

Tue, 29 May 2007 21:19:00 GMT

Georgia has waived its sovereign immunity. This waiver applies to all actions within the scope of an employee's duty. However, this waiver is limited by many exceptions. There is a oneyear limitation period for claims against the state. The Georgia Constitution allows the General Assembly to waive the immunity of counties, municipalities, and school districts. Any action against the state the claimant's recovery is limited to $1,000,000 and aggregate liability per occurrence cannot exceed $3,000,000. There is also a provision for a Tort Claims Trust Fund.

What About Joint And Several Liability?

Tue, 29 May 2007 21:19:00 GMT

For causes of action that accrue after July 1, 1987, liability to the claimant is apportioned among the joint tortfeasors severally based upon their degree of fault. However, joint and several liability is imposed on joint tortfeasors if the claimant is without fault.

Are There Patient Compensation Funds And Physician Insurance?

Tue, 29 May 2007 21:19:00 GMT

Georgia does not have a patient compensation fund or a program of statesponsored liability.

Are Periodic Payments Required?

Tue, 29 May 2007 21:19:00 GMT

Georgia does not require the use of periodic payments.

Is Pre-Judgment Interest Required?

Tue, 29 May 2007 21:19:00 GMT

Prejudgment interest is not allowed in personal injury actions, unless the defendant rejects a formal pretrial demand by the claimant and the judgment is equal to or greater than the demand. In such cases, prejudgment interest is calculated at twelve percent, beginning 30 days after the date of the demand.

What Is Vicarious Liability?

Tue, 29 May 2007 21:19:00 GMT

Georgia statutory law imposes liability on an individual for the negligent acts of a contractor when the contractor's work is wrongful in itself, results in a nuisance, is inherently dangerous, violates a duty imposed in a contract, violates a duty imposed by statute, was directed or controlled by the employer, or was ratified by the employer. A Georgia appellate court found that a hospital may not be liable for a contracting physician's negligent acts. Factors include whether the hospital negligently granted him privileges or undertook to direct the doctor's method of treating patients. The court found that when a patient relies on the hospital to provide health services and there is no indication of the doctor's employment status, the hospital may be liable for the physician's negligence based on the appearance of an agency relationship between the physician and hospital.