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If you believe you've been injured by your physician or other health care provider, you may be wondering if you can or should sue for medical malpractice. This article discusses the major considerations that go into deciding whether or not to start an injury claim with a medical malpractice attorney.

You Didn't Get the Best Outcome; That Doesn't Equal Medical Malpractice

Despite the impressive advances in modern medicine, there is rarely ever a guarantee that a particular treatment or procedure will cure a patient's malady -- and very rarely will a health care provider give any kind of guarantee ahead of time.

Medical treatments can and do go wrong despite the medical professional's best efforts. Suggested therapies prove to be ineffective, and impossible-to-foresee complications result from routine procedures. If medical professionals were held legally liable every time the results of care were undesirable or unfortunate, the legal system would make the practice of medicine nearly impossible (at least economically untenable).

So When Does Medical Malpractice Occur?

Experiencing a life-altering injury or the death of a loved one is traumatic. If the loss is caused by the wrongful behavior or negligent action of another person, the pain and suffering is often intensified.

This stress can be exacerbated when trying to determine if you have a case for medical malpractice or wrongful death, which can often be a complex and costly process. Thousands of people die every year from unnoticed and undocumented medical negligence and malpractice. It has been said that more people die each year from medical negligence than from automobile accidents.

Perhaps the best resource when you’re still trying to figure out if you have a case is access to another doctor (or doctors) in the same field who can honestly evaluate your doctor's conduct. If, like most people, you don’t have that kind of access to doctors willing to risk a defamation case, a reputable plaintiff’s malpractice attorney is your next best bet. 

What Are Clear-Cut Cases of Medical Malpractice?

There are a few situations where the average person knows a doctor or other medical professional did something negligent. The most common situations include:

  • When a surgical sponge or other foreign object is left in the patient after a surgery.

  • Operating on the wrong patient, in the wrong spot or on the wrong limb.

  • Performing a non-emergency procedure that a patient did not consent to.

  • Failing to inform a patient about a significant risk to a procedure or treatment that has a higher than 5% of occurrence.

What Are Your Chances?

Many potential medical malpractice claimants want to know what "chance" they have of winning their case. The facts of your situation are what they are; you don’t get to choose the kind of medical malpractice claim to bring. So it’s probably not all that helpful to form an objective list of the kinds of medical malpractice cases in which you’re likely to prevail, when the only thing that should matter to you is your own potential claim.

Having said all that, the kinds of medical malpractice cases in which you’ll "likely" win are probably those in which the issue of fault -- whether a health care professional committed medical negligence in treating you -- is clear and can't really be disputed.

So, we're talking about cases where the patient was harmed by something that obviously shouldn’t have happened. Wrong site surgery and a surgical procedure where an instrument is left inside a patient are two examples.

There is a fancy Latin term for cases like this: A medical malpractice case based on res ipsa loquitur is one in which 1) a patient is injured as the result of a medical procedure, 2) the patient does not know exactly what caused his or her injury, and 3) it is the type of injury that would not have occurred without negligence on the part of the health care provider.

On the other side of the coin, it’s much tougher to win a medical malpractice case when a patient has clearly suffered harm, but the defendant’s liability is a much more murky issue. Remember that just because a patient ends up with a less-than-favorable result from treatment, that doesn’t mean medical negligence was committed.

Cases in which liability is up in the air usually end up coming down to a "battle of medical expert witnesses," and the winner is typically the side with the expert who has done the better job of presenting his or her evidence and testimony to the jury.

The Statute of Limitations May Prevent an Otherwise Solid Case

To keep the costs of medical liability insurance down and shield medical professionals from excessive litigation, most states have special rules that apply to medical malpractice cases. By far, the rule that prevents the most cases is the shortened "statute of limitations." Depending on the state, the court may throw your case out if the alleged malpractice occurred, for example, four years ago even if you didn’t find out about it until much later. The statute of limitations rules are different from state to state and vary in severity, but one thing you can count on is that you only have a few years to get to the court house. 

Medical Malpractice Is Not a "DYI" Area of the Law

Because of the nature of health care, you may be really suffering physically and emotionally after an adverse outcome in your treatment. However, the procedural requirements you have to follow before you can even begin your medical malpractice case in court trip up even inexperienced attorneys.

To make matters worse, some states require you to pay the medical professional's attorney fees if the court decides your case was frivolous. You are not required by law to hire an attorney, but if you truly believe you might have a legitimate medical malpractice case, your best bet is to consult with an experienced plaintiff's medical malpractice attorney in your area.

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