Common Victim Malpractice Questions

Our law firm handles medical malpractice cases around the country.  These are some of the questions we are most commonly asked by people who have suffered or lost a loved one because of the medical malpractice of a doctor or other healthcare provider.

What is the Average Settlement for Medical Malpractice?

If you have a potential medical malpractice claim, you may be wondering how much it could be worth or what the average settlement value is for malpractice cases.  Nationwide, the average value of a medical malpractice settlement or verdict is roughly $250,000.  (Our law firm’s average in recent years is in the millions.)  Of course, this is a macro scale number that doesn’t necessarily tell you very much about the potential value of your individual case. For a better understanding of how to value your own case, there are a few things to keep in mind.  First, the value of a claim is driven not by how badly the doctors messed up, but by how serious the resulting injuries were.  In other words, malpractice values are based on the level of injury not the level of negligence.  No matter how egregious or grossly negligent the doctors were,  if it only results in minor injuries the case will not be worth very much.  When the malpractice results in a serious, permanent injury or death the case will be worth much more.

How Do You Prove Medical Malpractice?

There are 3 elements involved in proving medical malpractice. You must show: (1) a doctor-patient relationship existed; (2) the medical care you received was negligent; and (3) you were injured as a result of the negligent medical care.  Establishing a doctor-patient relationship is usually very easy.  The real focus is on the 2nd and 3rd elements.

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Your Medical Malpractice Questions Answered

 

The 2nd element of a medical malpractice (negligence) claim requires evidence proving that the treatment your doctor provided did not meet the medical “standard of care.” The standard of care is basically defined as what level and type of care would be provided by a reasonable, competent doctor within the medical community.  To prove that your doctor’s treatment did not meet the standard of care you will need expert testimony from of doctors.  You need another doctor (or doctors) to review your case records and give an opinion explaining why your doctor’s actions did not meet the standard of care.

The 3rd element of medical malpractice is sometimes referred to as “causation.”  Once you prove that your doctor provided negligent medical care, you need to also prove that his negligent care was the actual cause of your injuries.  Proof of causation is usually based on expert testimony, often from the same expert witnesses used to establish the 2nd element.  In many cases, causation is somewhat obvious.  For example, if a doctor negligently fails to diagnose cancer and the patient never gets treatment and eventually dies. Or if a surgeon leaves a tool inside a patient or removes the wrong organ.  But in many other cases, the question of causation is much less and clear and it becomes a major battleground.

What is the Difference Between Medical Malpractice and Negligence?

Malpractice is essentially a special type of negligence that applies to treatment rendered by health care professionals.  Medical malpractice is often described as “professional negligence.” Medical malpractice occurs when a doctor (or healthcare professional) provides medical care that does not meet applicable standards.

Negligence is a general civil claim that can apply to anyone.  Negligence is defined as the failure to exercise the level of care that a reasonably prudent person would exercise under the circumstances.  For example, a reasonably prudent driver would be careful not to speed through a red light at an intersection.  If someone fails to exercise this level of care and hits another car after running a red light they are guilty of negligence.

How Many Years Do You Have to Sue for Medical Malpractice?

When you have a potential claim for medical malpractice, you have to file it within a certain time frame otherwise you might be legally barred from ever pursuing the claim.  All states have a statute of limitations that sets a specific time limit for filing medical malpractice claims.  In Maryland, the statute of limitations period of malpractice claims is 3 years (in more than 98% of cases).  In most states, the limitation period begins running at the time of “discovery.” This is essentially the time that you first discovered the malpractice or realized you might have a malpractice claim.  Not all states follow the discovery rule, however, so you need to check into your state’s law on this.  For a summary of the general statute of limitations in all 50 states visit our SOL page.

How Much Can You Get if You Sue for Pain & Suffering?

In a medical malpractice lawsuit, the plaintiff is entitled to monetary damages to compensate for the “pain and suffering” caused by his injuries.  Pain and suffering damages are usually the largest component of the total money awarded in a medical malpractice case. This is because unlike economic damages (e.g., medical bills, lost wages), pain and suffering damages are not subject to precise calculations.  The reality is that it is very difficult to quantify the appropriate value of a person’s pain and suffering.  The intangible nature of pain and suffering makes this category of damages much more open-ended permitting more emotional valuations of a case.

Case law and jury instructions give some parameters for what to consider when awarding for pain & suffering.  For instance, the Maryland civil pattern jury instructions advise jurors to take the certain factors into consideration.  These factors essentially look at 3 things:

  1. How severe was the physical and mental pain & suffering;
  2. How long did the pain & suffering last; and
  3. How much did the pain & suffering impact the plaintiff’s life

These components of pain and suffering give juries ample room to come up with monetary awards that reflect how they feel about the case in general.  The same intangible nature that makes pain & suffering damages so limitless, also makes it very hard to estimate how much a particular plaintiff can expect to get for pain & suffering.  There are several formulas that insurance companies utilize to calculate pain & suffering damages when settling claims.

In Maryland, there is a cap on pain and suffering damages that is specific to malpractice cases.

What Qualifies for a Malpractice Suit?

A medical malpractice suit can be based on any negligent treatment rendered by a licensed health care professional.  Negligent care can come in various shapes and sizes.  A lack of diligence, such as failing to perform appropriate follow-up care, can potentially qualify as medical malpractice.  Poor decision making or failure to act with an appropriate level of skill can also constitute malpractice.  For instance, an OB/GYN might fail to do a timely emergency c-section or employ appropriate skill and care with forceps or other delivery assistance devices.

What are Some Examples of Medical Malpractice?

Medical malpractice can come in an infinite variety of forms and contexts.  However, there are certain categories of medical malpractice that occur more frequently and provide good examples.

  • Diagnosis Errors: correctly and promptly diagnosing a patient’s condition is usually the first step in the course of treatment. Property and effective treatment cannot happen unless and until an accurate diagnosis is made.  Malpractice can come in the form of both misdiagnosis, failure to diagnose, or delayed diagnosis. One of the most common examples of this is the failure to diagnose certain cancers such as breast cancer or colon cancer.  For example, if a woman is sent for a mammogram and the radiologist fails to recognize mass which later turns out to be cancer, the radiologist can be sued for malpractice.
  • Birth Injuries: birth injuries are a common example of medical malpractice.  Many birth injuries such as cerebral palsy occur as a direct result of medical error in the delivery room.  Birth injury malpractice is typically the result of the doctor employing poor judgment or poor skills in response to a sudden emergency.
  • Surgical Errors: surgical errors can come in a number of forms such as removing the wrong organ or injuring a nearby organ or tissue

Are Medical Malpractice Awards Taxable?

The money you receive from a medical malpractice claim is generally not taxable as income.  This is true regardless of whether you get the money from a settlement or a jury verdict after trial.  As long as the monetary damages are awarded as compensation for an actual physical injury (which is always the case in medical malpractice) then they are not treated as “income” and therefore not subject to federal or state income tax.  Even economic damages for lost wages are not taxable so long as they related to your physical injury. Basically, any form of compensatory damages that are linked to an actual physical injury does not get taxed.

There are 2 primary exceptions that you need to keep in mind.  First, if you previously claimed tax deductions for medical expenses that you get compensated for in your malpractice settlement, you are required to “recapture” those deductions as income.  For more information on this read the section on “Recoveries” in IRS Publication 525.  The second exception applies to punitive damage awards from the jury.  Punitive damages are not very common in medical malpractice cases but if you do get them they will be fully taxable.

What States have Caps on Medical Malpractice Damages?

A number of states have passed laws imposing maximum limits or “caps” on the amount of damages that can be awarded to plaintiffs in medical malpractice cases.  There are currently a total of 30 states with legal caps on medical malpractice damages:

Arkansas
California
Colorado
Hawaii
Idaho
Indiana
Kansas
Louisiana
Massachusetts
Maryland
Mississippi
Missouri
Montana
Nebraska
New Mexico
North Carolina
Oklahoma
Ohio
Oregon
South Carolina
South Dakota
Tennessee
Texas
Utah
Virginia
West Virginia
Wisconsin

For more detailed information on medical malpractice damage limits in these states, visit our page on Malpractice Damage Caps in All 50 States.

How Do I Go About Suing a Hospital?

Hospitals are obligated to provide a minimum level of medical care to all patients. If you are injured because a hospital failed to meet these minimum care standards you have every right to sue the hospital and seek compensation.  If you are considering a lawsuit against a hospital your first step should be to hire an experienced medical malpractice law firm like Miller & Zois.  The hospital malpractice lawyers at Miller & Zois can investigate your claim against the hospital and find out what really happened (not just what the medical records say).  Then we can identify exactly how the hospital may have breached the standard of care or violated other regulations. The next step might involve getting an opinion from an expert witness and contacting the hospital.