Free Hawaii Medical Malpractice FAQs | Free Hawaii 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. Hawaii law defines a “medical tort” as professional negligence, the rendering of professional service without informed consent, or an error or omission in professional practice, by a health care provider, which proximately causes death, injury or other damage to a 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 would under similar circumstances. 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. 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 health care provider and the harm to the patient. Finally, you have to show what damages resulted form the alleged mistake. This may include medical bills, lost wages, pain and suffering, etc. 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. 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

The law requires that you file a lawsuit within a specified period of time depending on the nature of the claim and the entity that caused your injury. This is referred to as the statute of limitations. Failure to file suit within this time frame prevents you from filing suit at all. In some instances, there are various exceptions to the statutes of limitation that may extend or limit the limitation periods. There may be special claims presentation requirements for claims against state and local government. For these reasons, it is important to consult an attorney as early as possible to be sure you don’t miss a crucial deadline.

Medical malpractice claims for injury or death must be brought within two years after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the injury, but in any event no more than six years after the date of the alleged act or omission causing the injury or death. This sixyear time limitation is tolled for any period during which the negligent party has failed to disclose any act, error or omission upon which the action is based and which is known to the party. Lawsuits on behalf of minors must be commenced within six years from the date of the wrongful act, unless the child is under the age of ten, in which case the action need only be commenced within six years from the date of injury or by the child`s tenth birthday, whichever is later. The statute also allows the time limitation to be tolled during any period when the child`s injury could not have been discovered through the use of reasonable diligence. With respect to claimants who are insane or imprisoned, the statutory time does not begin to run until the disability is removed.

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. Hawaii has not imposed liability on hospitals for the negligence of nonemployed physicians.

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 for economic loss is joint and several. Liability for noneconomic damages is also joint and several if the defendant is at least 25% negligent.

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. Whatever arrangement you work out with your attorney, it will have to be approved by the court.

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, physical impairment, disfigurement, loss of enjoyment of life, loss of consortium, 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. Hawaii has a law that imposes a $375,000 damage limit for the recovery of damages for pain and suffering.

In certain instances, damages may be awarded to families of injured claimants for loss of care, companionship, love and affection. Family members can be compensated for the wrongful death of a loved one. These damages may include medical and burial expenses, loss of income that would have supported the family members, emotional suffering, and loss of the pleasures of the family relationship.

Punitive damages are intended to punish a defendant for reckless or malicious behavior and are only awarded in rare cases. 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

Hawaii has established medical claims conciliation panels (MCCP) that review potential cases and issue opinions on liability and damages. The law requires that most medical malpractice claims go through the MCCP process before filing a lawsuit. Basically, this involves nonbinding arbitration. Either party still has the option of rejecting the panel’s decision and filing a lawsuit. If you are covered by the Kaiser health plan, most participants give up their right to file a lawsuit and agree to resolve complaints through binding arbitration.