| Medical Malpractice FAQs
What is Medical Malpractice?
What is the "Standard of Care"?
Why is an expert witness necessary?
What does it cost to pursue a claim?
What damages can be recovered?
Will a lawsuit be necessary?
What is Medical Malpractice?
Medical negligence, or malpractice, occurs when a health care provider's diagnosis or treatment fails to meet the standard of care due a patient under the same or similar circumstances and in the same or a similar community. Such a failure may be referred to as a "deviation from the standard of care."
Medical malpractice claims are within the broad definition of personal injury claims, or "torts," and most of the same legal rules that apply to other types of personal injury or wrongful death claims also apply to medical malpractice claims.
Simply because there was an unfortunate result from a course of medical treatment, it does not always follow that malpractice occurred. Medical providers do not insure results, and are not legally liable for the reasonable exercise of medical judgment, even when a decision turns out to have been incorrect.
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What is the "Standard of Care"?
Often, there are no written "standards" applicable to medical treatment. However, reference to medical textbooks, articles in medical journals, and other sources provide guidelines which are useful in determining whether malpractice has occurred in a given case. Ultimately, however, because of the nature of medical practice and requirements of North Carolina statutes, the case must be reviewed by a qualified "expert," who then advises the attorney whether or not there has been a departure from the standard of care.
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Why is an expert witness necessary?
North Carolina law requires that a complaint alleging medical malpractice certify that the case has been reviewed by a qualified expert witness who is willing to testify that there has been negligence in the matter. Aside from this requirement, such a medical review is necessary because lay people are not usually in a position to know whether or not a particular action amounts to malpractice.
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What does it cost to pursue a claim?
The requirement of expert witnesses makes medical malpractice cases among the most expensive types of cases to pursue. Not only must the plaintiff's experts be paid, if a lawsuit is necessary the defendants will also have expert witnesses. Often, these witnesses, or at least some of them, will be out of state. The witnesses must be paid for their time in depositions and there are travel and other expenses connected with the depositions.
Of course, there are also other expenses, such as obtaining medical records, x-rays or other diagnostic studies, and trial exhibits which contribute to the overall cost of the case.
Because of the high cost of these cases, and the time necessary to be spent on them, many otherwise meritorious claims cannot be pursued. Unless the injuries are significant the cost of the case may outweigh the potential recovery. The typical medical malpractice claim pursued through jury trial may involve out of pocket expenses of anywhere from $20,000 to $50,000, and sometimes more.
Most malpractice attorneys will advance most, if not all, of these expenses with an agreement that they will be repaid out of any recovery.
Attorney fees are contingent on the outcome of the matter. If there is no recovery, there is no fee.
The potential client should insist on a full and frank discussion of fees and expenses at the time of the initial consultation with a lawyer.
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What damages can be recovered?
The elements of damages for which the law allows recovery are the same in medical malpractice cases as in any other personal injury claim. These include medical expenses, lost earnings and compensation for pain and suffering.
Damages are recovered only for those injuries which are directly attributable to the negligence alleged. If an illness or injury would have occurred even without the malpractice, or if the injury is discovered and corrected in time so that the injured person is no worse off than he or she would be without the negligence having occurred, then there is no actionable claim. For example, a doctor may have failed to discover a cancer during a diagnostic procedure, but the cancer is later discovered. If the cancer is discovered before it has grown to the point that the medical outcome is changed, then there probably is no case.
Sometimes, even a negligent failure to diagnose a condition will not give rise to a claim. For example, if a doctor fails to diagnose a condition for which there is no known successful treatment or cure, such as pancreatic cancer, the patient is likely to die regardless of the diagnosis and there would be no claim.
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Will a lawsuit be necessary?
It is very likely that, in order to recover, a lawsuit will have to be filed. Frequently, the doctor's insurance policy will prevent a settlement without the doctor's consent. If the doctor believes he or she has done nothing wrong, settlement is unlikely. Also, because most of the cases that do go to trial are won by the doctor or hospital, the insurance companies will not settle without a lawsuit so that they can make a better assessment of the strength of the case by taking the depositions of plaintiff's expert witnesses.
However, many cases do settle without actually going to trial. If the insurance company perceives a risk that plaintiff will win, it may want to settle.
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For more information, please see our
Medical Malpractice page.
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