If you have been injured in a car accident or by some other personal injury, don’t wait to seek counsel from an attorney. Be aware there is a statute of limitations and a lawsuit must be filed within a set time limit; if you wait too long, you may not be entitled to any insurance settlement. Also, personal injury statutes and laws are very different from laws for worker’s compensation, and the laws vary from state to state, so be sure to seek legal counsel concerning your injury.
Ensuring that you have the necessary documentary evidence—medical records; witness statements to establish the full scope of your pain and suffering; and expert testimony to verify your injuries and the pain they are causing you—are matters that we have years of experience handling. Before and after witnesses are those individuals who knew you both before and after the incident giving rise to your injuries and are equipped to testify regarding how the accident has impacted you from their perspective. A spouse or significant other is typically an obvious ‘before and after’ witnesses because they live with you day in and out, taking notice of your physical pain and condition.
For example, the Court of Appeals of Texas said in 2006 that the parents of a stillborn baby could sue the Harris County Medical Examiner's Office for causing mental anguish after the office allegedly lost the baby's body during an autopsy. The court said the county's relationship with the parents constituted a "special relationship" under which mental anguish damages were allowable in the absence of physical injury.
In a handful of states, the court sets (or at least can consider the reasonableness of) the percentage that a plaintiff’s medical malpractice lawyer can receive after a successful case. For example, in Arizona, either party may request that the court review the reasonableness of an attorney fee agreement in a medical malpractice case. And in Tennessee, the court itself sets the amount that the attorney will receive, and the lawyer's "cut" may not exceed 33 and 1/3 percent.
If you don’t file a medical malpractice claim or lawsuit against your doctor within the prescribed time period, absent some exceptional circumstances you will be barred from seeking monetary compensation for the injuries and damages you sustained. A medical malpractice lawyer should know the statute of limitations deadline in your jurisdiction and can work to make sure that a claim or lawsuit is filed in your case in a timely manner.
In a personal injury trial in Florida you can ask the jury to compensate you for non-economic damages, which include damages as the result of any bodily injury sustained by Plaintiff and any resulting pain and suffering disability or physical impairment, disfigurement, mental anguish, inconvenience or loss of capacity for the enjoyment of life experienced in the past or to be experienced in the future. (Florida Standard Jury Instruction, See 501.2).
From that point, a number of deadlines are triggered. You will need to stay on top of these deadlines or your case may be dismissed. You will need to use the discovery process to investigate your case and obtain evidence to support your claims. And, eventually, you will need to prepare your case for trial. If the pretrial procedures seemed difficult, trial is an even more complicated mix of rules and procedures that all apply at once. Preparation is key, and knowing how to navigate these rules will be the difference between success and failure.
In the mid 1990s the concept of a ‘gratuitous care’ award was developed by the High Court. Basically, if you can’t look after yourself or your house (or in some cases your children) because of your injuries, then you can claim the cost of a commercial carer or cleaner even though your family is doing the tasks you can’t do. For a while this was a very lucrative area of damages but now there are laws that place both a threshold and a cap on what you can claim. Put simply, you aren’t entitled to any gratuitous care award unless you need at least 6 hours of assistance per week for at least 6 continuous months and the hourly rate of any award is capped at the Average Weekly Earnings hourly rate. You should be careful, however, not to confuse gratuitous care with commercial care, which is a different claim for damages entirely and which is not the subject of thresholds or caps.
If you suffer mental anguish arising from a case of personal injury or medical malpractice, you may recover non-economic damages. However, in some jurisdictions, you may only be allowed to recover a specified maximum. Also, you will have to prove your injuries by a preponderance of the evidence. Talk with an experienced attorney to discuss the details of your case.
This is probably the number one reason why you don’t want to sue your doctor. While it is true that most lawsuits can take some time to become resolved, it is well worth the wait. However, there are ways to speed up the process: file your lawsuit as soon as it is determined that the case has merit and make sure that the court imposes deadlines for every step of the lawsuit, such as specific dates for depositions, defense medical examinations, and the exchange of discovery responses. This will prevent the lawsuit from the inevitable delays presented by defense attorneys and their insurers and keep the case on the proverbial “fast track” to trial.
When deciding whether to file a medical malpractice claim, it's important to find out how much time you have to legally bring the claim. All civil claims, including medical malpractice cases, have time limits as to when they must be filed. These limits, called “statutes of limitations,” require you to file your claim within a certain time period from when the injury occurred, or risk waiving your rights to recover money for your injuries.
The most common type of injury that leads to an award of pain and suffering damages is a severe physical injury that causes physical or mental anguish for a period of time following an accident. For example, a head injury suffered in a car crash that results in a persistent headaches and emotional problems could potentially lead to the awarding of pain and suffering damages.
95. In our considered view, the aforementioned principles must be kept in view while deciding the cases of medical negligence. We should not be understood to have held that doctors can never be prosecuted for medical negligence. As long as the doctors have performed their duties and exercised an ordinary degree of professional skill and competence, they cannot be held guilty of medical negligence. It is imperative that the doctors must be able to perform their professional duties with free mind.
There is no definitive answer, as all cases are different. There are a number of factors that can affect the timelines. First, a case that has multiple parties involved will require much more investigation than a single case. There are depositions, a commitment of experts and the court's schedule to consider. In addition, the insurance company may settle without going to court or the company may try to postpone a court date as long as possible.
For example, the standard of care for an eight-year-old child with a cough who is complaining of chest pain would be different than the standard of care for an 80-year-old man who’s complaining of the same symptoms but has smoked a pack of cigarettes daily for most of adulthood. In the case of the child, a reasonable, competent doctor would probably diagnose and treat the child for bronchitis, but that same doctor would run tests to determine whether the elderly smoker had lung cancer.
Any condition can be misdiagnosed, but there are some that doctors fail to diagnose at a much higher rate than others. Since a great deal of cases of misdiagnosis occur in emergency rooms, many of the commonly misdiagnosed conditions are incredibly serious. Patients who are taken to emergency rooms with symptoms of a heart attack are often told that they are having indigestion or a panic attack. A patient who is having a stroke may be told that his symptoms indicate he is experiencing a bad migraine headache. Doctors can also make mistakes when diagnosing cancer. A doctor may fail to order the appropriate tests or may misread test results and tell the patient that he does not have cancer, when he actually does.
The study recommended reforming the system by increasing funding for legal services, so attorneys could be compensated for their time; making defendants who lose a case pay the plaintiff’s attorney fees; or sending malpractice complaints to an administrative system with neutral adjudicators and medical experts so patients wouldn’t need an attorney.
In my experience, many problems that spiral out of control could have been tackled sooner. You may have been kept waiting a long time for your hospital appointment, or a member of staff was rude to you. Perhaps you felt an elderly relative wasn’t getting adequate pain relief, or even enough to drink. In these circumstances, do as you would in any restaurant when you aren’t happy: ask to speak to a manager.
In many – but certainly not all – cases of negligent infliction of emotional distress, there must be physical harm in addition to mental harm for a plaintiff to recover damages. In the case of an incorrect cancer diagnosis, for example, the plaintiff might show that he or she underwent unnecessary chemotherapy or radiation treatment because of the error.
But it doesn’t get much more complex than a medical malpractice case. You’ll need to prove complicated legal and medical issues like the applicable medical standard of care that the doctor should have complied with in your case, and you’ll need to be prepared to refute the other side when they come to the table with their own medical evidence. What’s more, many states require medical malpractice plaintiffs to jump through certain procedural hoops at various points in the case.
But lawyers may have to invest $50,000 or more to pursue a case, and they usually only get paid if they win or settle. The payout is determined largely by economic damages – lost earnings, medical bills and future costs caused by the injury. Those who don’t earn big paychecks – including children, the elderly and stay-at-home-moms – are the least likely to find an attorney, studies show.
However, if you were threatened or assaulted and then miscarried your baby, or were hospitalized because of a panic attack, your mental and emotional anguish is more apparent. Other physical signs of emotional distress might be ulcers or headaches. Also, it’s best if a doctor’s note is provided, from a doctor or psychologist, to support each claim.
The accuracy of information provided on this site is not guaranteed. It is generic information for informal purposes only. It is NOT formal legal advice. Your use of this site does NOT create an attorney-client relationship. Consult with a licensed attorney in your state before relying on any information found on this site. If you are currently represented by an attorney, you should strictly abide by his/her counsel.
Medical negligence occurs when a doctor or other medical professional breaches the standard of care. In general, a standard of care is the accepted methods of treatment applied by other medical professionals in the area to patients with identical or similar conditions. A standard of care will vary depending on a number of factors, including geographic area, the age of the patient, and the medical condition.
One of the most common reasons that a physician may be accused of medical malpractice is due to the failure to diagnose. This is premised on the idea that the patient needlessly suffered for an extended period of time because the doctor failed to properly evaluate tests or run tests that should have reasonably notified him or her of the potential diagnosis. Other examples of medical malpractice include misdiagnosing a medical condition, failing to provide appropriate treatment, causing an unreasonable delay in treating a diagnosed condition, violating HIPAA laws, performing wrong-site surgery and performing surgery on the wrong patient.
Your lawyer will decide whether or not to pursue your case against the hospital. If the lawyer takes the case, he will then need to retain an expert medical doctor to submit an affidavit detailing how the treatment was below the standard of care, and how that departure from the standard of care led to an injury. The case will then go through the pre suit process, which is a 90 day period during which the hospital investigates the claim. At the conclusion of the presuit period the hospital can deny the claim, or accept responsibility. Often times the parties will agree to mediate the case during the presuit period, and this often results in a settlement. If the case does not settle during presuit, the lawyer will then file a complaint of medical negligence against the hospital. This is where the work really begins.
Formal arbitration is a contractual alternative to a lawsuit or trial. In a formal arbitration situation, the parties contractually agree to allow a panel of attorneys (usually one plaintiff-oriented attorney, one defense-oriented attorney and one neutral) to hear their case and adjudicate it on the merits. Liberated from the evidentiary requirements of a formal lawsuit, parties are afforded the opportunity to save a considerable amount of money when compared to trial, while still being allowed to present their case. Formal arbitration is binding and should not be undertaken lightly. Courts are loath to overturn or otherwise alter decisions made by arbitration panels, particularly when the arbitration awards are reasonable in light of potential jury verdicts.
If the injured patient is able to prove – through qualified expert testimony – that the doctor committed an act of medical negligence, then the patient has satisfied the first step of proving a malpractice claim against the doctor. However, the injured patient must also be able to show that the doctor’s negligence resulted in certain injuries or damages.