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, inconvenience, disfigurement, loss of enjoyment of life, loss of consortium (disruption of your personal relationship with your spouse), 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. Punitive damages are intended to punish a defendant for reckless or malicious behavior and are only recoverable if specifically authorized by statute.

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.

The Louisiana Medical Malpractice Act established a Patient`s Compensation Fund. State health care provides are automatically entitled to be covered by the fund and private providers may join if they are covered by malpractice insurance in an amount of at least $100,000 per claim and pay a surcharge. Each provider`s liability is limited to $100,000 plus interest per patient per incident. Awards in excess of $100,000 are paid out of the fund. A claimant`s total recovery is limited to $500,000 plus future medical costs.

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.

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.

In a suit against a health care provider involving a medical malpractice claim which is based on the failure of the provider to adequately disclose the risks and hazards involved in the medical care or surgical procedure rendered by the provider, the only theory on which recovery may be obtained is that of negligence in failing to disclose the risks or hazards that could have influenced a reasonable person in making a decision to give or withhold consent.

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 health care provider negligently failed to meet the applicable 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 Louisiana would under similar circumstances. Health care providers are judged in comparison with similarly trained and qualified providers of the same class in the same community and in the same field of medical specialization. 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.

Most medical malpractice actions in Louisiana are brought under the terms of the Louisiana Medical Malpractice Act. This act governs actions against qualified providers, which refers to participants in the statesponsored excess insurance program. State health care provides are automatically entitled to be covered and private providers may join if they are covered by malpractice insurance in an amount of at least $100,000 per claim. Under the Medical Malpractice Act, a medical review panel must review all claims before the claim can be filed in court. The panel expresses an opinion as to whether the evidence supports the conclusion that the defendant failed to act within the appropriate standard of care and whether that failure contributed to the injury. The panel`s report is admissible as evidence in any subsequent action, but is not conclusive.

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.

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 may charge an hourly fee or a flat fee for their services.

Out of pocket expenses include such things as filing fees, deposition fees, expert witness fees, exhibit costs, copying charges, and other similar expenses. 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 due to the need for expert testimony and because they are hard fought cases, which in many cases do not settle until they have been thoroughly litigated. Many attorneys will decline a case unless there is potential for a substantial verdict or settlement.

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.

A medical malpractice action for injury or death must be filed within one year of the alleged act, omission or neglect, or within one year of discovery of the alleged wrongful act. However, even as to claims filed within one year of the date of discovery, in all events such claims must be filed within three years from the date of the alleged wrongful act. This limitation period applies to all persons including minors and incompetents.

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.

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, technicians, 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.

In Louisiana, a hospital may be held liable for the acts of its independently contracted physicians under certain circumstances. Relevant factors include whether the hospital controlled and supervised the professional medical judgment; whether the hospital provided the equipment used by the physician; whether the hospital billed and collected payments for the physician; whether the hospital provided the physician with malpractice and worker`s compensation insurance; and what the contract between the hospital and physician provided.

There may be more than one cause of an injury. When the negligent conduct of two or more parties contributes as causes of an injury, each party is only liable for that portion of the judgment equal to the their percentage of negligence.