When you go to the hospital for treatment or surgery, you should be safe and in good hands. You should be treated with the regular standard of care all medical professionals should follow and get back to your life, fully healed or in better condition. However, many people fall victim to medical negligence or medication errors. Instead of getting better, their condition worsens or they even lose their life as a result of medical care errors. If you were the victim of surgical errors or any type of negligence in a hospital or under a doctor’s care, you should hire a medical malpractice lawyer at CAIL Law Firm to analyze your case and help you get the fair compensation you deserve for your bodily injury, pain, and suffering.
The Legal Meaning of Medical Malpractice
Medical malpractice laws across the US define this concept as a failure to provide an adequate standard of care to patients. In the Commonwealth of Virginia, the standard of care is defined as the “degree of skill and diligence practiced by a reasonably prudent practitioner in the field of practice or specialty”.
In order to prove a breach of the standard of care, medical experts and other specialized witnesses are required to give their expert testimony before the court. Thus, the concept of standard of care does not refer to the quality of the medical act as perceived by the patient but is rather a benchmark for the level of care in terms of using care and prudence in treating patients.
A big part of medical malpractice lawsuits is played by informed consent. According to the American Medical Association’s Journal of Ethics, patients need to receive sufficient information about a procedure or treatment done to them in order to make an informed choice to accept it or not.
The AMA explains that health care professionals should give patients at least the following information for informed consent:
- what condition the patient suffers from and for which they receive treatment
- the nature and character of the medical treatment or surgical procedure
- the anticipated results of the treatment
- the possible alternative forms of treatment recognized by healthcare providers
- possible serious risks, complications, and anticipated benefits as a result of the proposed treatment, alternative forms of treatment, or non-treatment.
How to Know If You Can Take Legal Action for Medical Malpractice
Malpractice law firms can help you understand whether you have a case or not. For example, if you are unhappy with the level of recovery you made after a medical procedure, this may or may not be a case of medical malpractice. As explained above, medical mistakes are judged by the standards of care the physician and hospital staff demonstrated in the treatments and procedures they performed.
Thus, the burden of proof belongs to you if you want to file a suit successfully and obtain a medical malpractice settlement. You need to be able to prove that:
- the healthcare provider owed you a duty of care (a formal doctor-patient relationship exists)
- they failed to treat you with reasonable care, thus breaching their duty
- you suffered injuries as a result of their breach of duty (surgical mistake, prescription errors)
- these injuries are directly responsible for the damages you suffered (both economic and non-economic).
Moreover, it is important to remember that the Commonwealth of Virginia uses the contributory negligence rule in deciding whether a personal injury victim (including medical malpractice victims) is eligible to receive financial compensation for their economic damages. According to this rule, if you are found even slightly responsible for causing your injuries, you are not allowed to seek damages.
How can an injured party be responsible for their suffering in a medical malpractice case? This can be argued if:
- you fail to follow the doctor’s recommendations (regarding, diet, physical effort, etc.)
- you fail to refill a prescription or continue the recommended treatment
- you fail to come for your follow-up consultation
- you discharge yourself from the hospital against medical advice
- taking over the counter medications without telling your doctor,
What Represents a Medical Malpractice Case
So far, we have told you what may disqualify you from getting compensation after a medical malpractice trial. But when exactly can you legally hold hospitals accountable for your financial damages in case of injury caused by a medical provider?
These the most common examples of malpractice by a medical practitioner that breach the reasonable standard of care you should receive and make your case eligible for taking legal action:
- misdiagnosis of cancer and other fatal conditions
- incorrect diagnosis leading to prescription errors
- anesthesia errors leading to heart attack or other complications
- surgical errors leaving patients with permanent injury or disability
- unnecessary surgery and medication
- hospital-acquired infections
- birth defects caused by failure to use acceptable standards and protocols
- failure to respond to a medical emergency with adequate speed and care.
A medical malpractice claim can also be filed if you were injured by a defective medical device or as a result of a fall in a medical establishment (hospital, nursing home, hospice).
How to Successfully Take Medical Malpractice Action
Trying to negotiate your own settlements is counter-productive and, at best, will get you a low-ball amount that does not even cover all your immediate economic losses. You need an experienced lawyer to investigate your case and prepare you for a medical malpractice lawsuit.
You will be subject to further examination and a barrage of uncomfortable and often misleading questions. Without the advice and guidance of a skilled personal injury lawyer, you may unwittingly damage your own case. The insurance company representing your medical care provider employs seasoned lawyers, who know how to exploit your vulnerabilities.
Their job is to reduce the amount of your compensation for injuries as much as possible. Thus, you need a legal team that has the knowledge and experience to fight back and prove that you were injured as a result of a healthcare practitioner’s negligence.
One of the most complex issues for an injured patient to understand is the statute of limitations applicable to medical malpractice cases in the Commonwealth of Virginia.
The Period of Time You Have to File a Medical Negligence Claim in Virginia
The standard statute of limitations for medical malpractice cases in the Commonwealth of Virginia is two (2) years. However, the law also contains various special stipulations, depending on the age of the patient, the types of injuries they suffered, and other aspects.
First of all, the period of time of two years starts running from the date when the injury occurred. If the medical error resulted in the patient’s death, their executor of the estate has a period of two years to file a wrongful death lawsuit, starting from the date of the decease.
If the medical malpractice victim is a child under 8 years old, the statute of limitations for filing injury claims expires on the child’s 10th birthday.
If a patient receives continuous treatment for a condition from a medical practitioner, the period of time available for taking legal action starts on the date of the last treatment session.
If the healthcare professional is directly employed by the Commonwealth of Virginia (for example, at the University of Virginia Hospital or Virginia Commonwealth University Hospital), your suit must be filled according to the rules of the Virginia Tort Claims Act. This means that you only have one (1) year available to file your claim.
Finally, if the cause of the injury is a foreign object forgotten by the doctor inside the patient’s body (a needle, a sterile tampon, etc.) the statute of limitation is longer between two years from the date of the injury or one year after the patient discovered or should have discovered the said foreign object.
As you can see, the statute of limitations in Virginia can be confusing for the average person. This is why you should schedule an initial consultation with a personal injury attorney with extensive experience as soon as possible after you realize that you were the victim of medical malpractice.
Types of Damages and Amounts You May Recover in a Medical Malpractice Settlement
If you suffered personal injury as a result of the negligence of a practitioner in the medical field, you are eligible to receive financial compensation for various economic and non-economic damages, such as:
- current and future medical expenses
- in the case of a wrongful death claim, funeral expenses
- lost wages and loss of future incomes
- pain and suffering: loss of quality of life, mental anguish, emotional trauma, disfigurement
- permanent injury and impairment.
If the health care provider is found to have acted with gross negligence (performing a surgical procedure under the influence of alcohol or drugs, for instance) you may also receive punitive damages.
As for the amounts you may collect, they are limited by various caps set by Virginia Code. The law provides annual increments of the maximum caps. Thus, depending on the date when your injury occurred, you may recover:
- $2,45 million between July 1 2020 and June 30, 2021
- $2.50 million between July 1 2021 and June 30, 2022
- 2.55 million between July 2022 and June 30, 2023
- and so forth.
If you file your suit under the Virginia Tort Claims Act, the maximum damage is capped at $100,000. In case of punitive damages, the maximum amount you may be awarded is $350,000.
Do you think you have a medical malpractice claim? The dedicated team at CAIL Law Firm is ready to offer you a free case evaluation and represent you in the medical malpractice lawsuit. We don’t charge any fees until we win your case, so call us now for a confidential consultation: 1-800-HURT-123!
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