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- What
is "medical malpractice?"
- What
must be shown to prevail in a medical malpractice case?
- Who
can be held accountable for medical malpractice?
- What
is the first step in pursuing a claim?
- How
do I know if I have a "good case."
- What
if I am told I do not have a good case?
- What
about the costs involved in pursuing a case?
- How
long will a case take?
- How
long does one have to initiate a medical malpractice case?
- Have
I waived my rights because I signed a waiver or consent form?
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1.
What is "medical
malpractice?"
Answer:
Medical malpractice is a broad term
generally used to describe any treatment, lack of treatment, or other
departure from accepted standards of medical care, health care, or safety
on the part of a health care provider that causes harm to a
patient. Examples of medical malpractice can take many forms,
too numerous to list. Medical malpractice can include,
however, misdiagnosis, improper treatment, failure to treat, delay in
treatment, failure to perform appropriate follow-up, prescription errors,
etc. In many instances, medical malpractice is not obvious to a
lay-person and requires the review and analysis by medical experts. Back to FAQ
menu.
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2.
What must be shown to prevail in a medical malpractice case?
Answer:
While there are various types of medical malpractice claims, generally
speaking, a claimant must usually show the following:
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- the health care provider owed a duty to the
patient
- the health care provider breached that duty
- the patient suffered an injury, and
- the patient's injury was a proximate cause of the health care provider's breach
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A physician owes a duty to a
patient once a "doctor-patient" relationship has been
formed. Such a relationship is usually formed when the
physician agrees to care for the patient. Nonetheless, even if
it is established that a duty is existed and the health care
provider breached that duty (eg. failed to meet the requisite
standard of care), a claimant may not recover unless the claimant
suffered injuries that were a direct result of the breach.
If the breach resulted in no harm to the patient, a claimant
generally has no right to recovery. Back
to FAQ menu.
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3.
Who can be held accountable for medical malpractice?
Answer:
Generally speaking, a medical malpractice
claim may be pursued against those who provide medical or health care to a
patient, including, physicians, registered nurses, hospitals, dentists,
nursing homes, and pharmacists. Medical malpractice claims may be
brought against individuals, partnerships, professional associations, and
corporations. Back
to FAQ menu.
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4.
What is the first step in pursuing a medical malpractice claim?
Answer:
The first step in pursuing a medical malpractice
case is suspecting that one may have been the victim of medical
malpractice. While not every bad result is due to medical
malpractice, one who develops a "gut feeling" that something was
wrong should consult a qualified attorney to review the matter, who often
will consult with medical professionals. This process often involves
the obtaining and review of medical records and other pertinent
information. If it is determined that one has a good case, the next
step is usually to give written notice of the claim to the individuals or
entities that are believed to have committed the medical malpractice.
Back
to FAQ menu.
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5.
How do I know if I have a good case?
Answer:
Given that each case turns
upon its own facts, determining the merits of your case usually involves
a two-pronged process. A medical review must be conducted to
evaluate whether or not the medical professional(s) in question acted,
erred, or failed to act in such a manner so as to fail to meet the
appropriate standard of care under the circumstances. If, from a
medical perspective, medical malpractice is found, a further review of the
case must be made by an attorney in order to determine the viability of
the claim from a legal perspective, often considering such factors
as the statute of limitations, the potential recovery, the ability to
collect upon a judgment if obtained, etc. Many factors and
considerations go into such an analysis. Given the complexity of the
medical and legal issues, one who suspects that they may have been the
victim of medical malpractice should consult a qualified attorney who can,
along with the assistance of medical professionals, analyze the merits of
one's claim. Back
to FAQ menu.
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6.
What if I am told I do not have a good case?
Answer:
Determining whether or not
one has a "good case" is not always an exact science.
Because a determination as to whether or not one has a "good
case" depends upon the professional judgment (based upon many factors
and considerations) of medical experts and attorneys, it is recommended
that one seek a "second opinion" from one or more qualified
attorneys if told that one's case is without merit. Back
to FAQ menu.
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7.
What about the costs involved in pursuing a case?
Answer:
Some attorneys (including the sponsor of this
website) will agree to handle medical malpractice cases on a contingency
fee arrangement. This means that the attorney will not charge an
hourly rate for his or her services, but instead will be paid a percentage of the
recovery in the event of a settlement or judgment. In many
instances, such attorneys will also pay the case development expenses
(such as expert fees, deposition costs, etc.) with the understanding that
he or she will recoup such costs only in the event of a recovery.
Thus in many cases, one may be able to secure legal representation without
having to pay any attorney's fees or expenses out of one's own pockets.
Back
to FAQ menu.
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8.
How long will it take to pursue a medical malpractice claim?
Answer:
There is simply no easy answer to this question. The vast majority
of all cases, including medical malpractice cases, are settled prior to
trial. Some cases are settled prior to the filing of a lawsuit,
while others are settled during litigation or even on the "steps of
the courthouse" just before trial. A medical malpractice case,
if litigated to trial, could last a number of years. One who pursues
a medical malpractice case should understand from the outset that a quick
resolution cannot be guaranteed. Back
to FAQ menu.
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9.
How long does one have to initiate a medical malpractice claim?
Answer:
"Statutes of limitation" govern the
length of time one has to file a lawsuit or be forever barred from
pursuing such claim. Under Georgia law, different statute of
limitations periods apply as to personal injury cases under various
circumstances. In some cases, the statute of limitations may be as
short as one year, while under different circumstances, it may be eight
years or more. Many factors bear upon when the applicable statute of
limitations period expires including the age of the plaintiff, the
type of personal injury claim, the particular facts giving rise to the
injury, and others. One must make absolute certain that they are
aware of when their statute of limitations period expires, or risk
jeopardizing their legal rights. An experienced personal injury
lawyer can be of assistance in this regard.
A potential claimant seeking the advice of an attorney should do so
without delay. In certain cases, there may also be other
deadlines that may also impact the case. For example, claims against
government entities may require that the entity or entities be put on
"notice" much earlier than the the statute of limitations
period. Furthermore, given that expert and legal analysis must be
done prior to filing a lawsuit, you should not wait until the statute of
limitations period is nearing its end because the attorney may not have
enough time to complete his or her review prior to its expiration.
There are other benefits to securing obtaining counsel early on as well.
Memories of the event or events in question tend to fade in witnesses,
potential witnesses may later be unavailable because they have moved,
become incapacitated, etc.
Back
to FAQ menu.
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10.
Have I waived my rights because I signed a consent form?
Answer:
No. A consent
form does not give the health care provider a license to
commit malpractice. While the execution of a typical consent form
indicates acknowledgement of stated risks and complications associated
with a given treatment or procedure, it does not relieve the health care
provider from his or her duty of meeting the standard of care associated
with such treatment or procedure.
Back
to FAQ menu.
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