From the desk of Araly Herrera-Borgen

While many complain when they become dissatisfied with their doctors or healthcare providers, the level of negligence and the resulting injury must be significant in order to warrant the filing of a medical malpractice claim. These cases hinge on whether the medical mistake directly caused or significantly contributed to an injury, impairment or death.

Any injury caused by the negligence of a physician, nurse, hospital, clinic, laboratory, dentist or other healthcare provider may be actionable in a medical malpractice case. Most viable medical malpractice cases involve the misdiagnosis and improper treatment of diseases and their symptoms, child-birth injuries, surgical mistakes, and the mishandling of prescriptions for medications or medical devices. Some examples include the failure to timely diagnose and treat heart disease, cancers and strokes as well as matters involving child births.

For many victims of negligent medical care, litigation is their only available recourse to overcome the economic catastrophe that usually follows a medically induced injury. Lawsuits that pit individuals against resourceful physicians, hospitals, nursing homes and their insurance companies are among the most costly and difficult to successfully litigate. Such claims are very labor intensive and require significant time and involvement from the plaintiffs, and there are always the risks associated with the possibility of no recovery.

The statute of limitations applicable to medical malpractice cases is one of the most important considerations in such cases. Medical malpractice lawsuits must be filed within two years of the occurrence of the negligence or within two years from the date that the plaintiff knew, or should have known, of the negligence or resulting injury.

Upon verifying that the case meets the timeframe of the statute of limitations, attorneys and their nursing investigators begin their evaluation of the case by obtaining detailed medical records from all of the physicians and healthcare providers who have treated the client. If the records verify a potential breach of the standard of care, the attorney will then consult with a highly qualified medical expert in the particular area(s) of care to consider whether there are “reasonable grounds to initiate a claim for medical negligence.”

If the medical expert reaches this conclusion, the preparation and filing of a lawsuit represents the beginning of a process that may take several years to complete. It begins with the filing of a statutorily required Notice of Intent to Initiate Litigation for Medical Negligence, which requires an affidavit. This notice triggers a 90 day presuit period during which the defendants can either accept or deny the claim. If the parties are not able to reach an agreement or resolution during this period, the case will be filed in the appropriate court and usually culminate in either a settlement or jury trial.

The entire process can be extremely complicated and lengthy. Since medical malpractice attorneys take on these cases on a contingency fee basis, experienced lawyers take only cases that have a reasonable chance of succeeding. This puts added pressure on attorneys to thoroughly evaluate a clients' case before filing a claim.

The risks of filing a medical negligence claim that results in no recovery of damages are quite significant. Some of the most common factors that impede cases include the lack of a substantial injury, credibility issues involving either the plaintiff(s) or defendant(s), or even the fact that doctors sometimes practice without malpractice insurance.

By working with highly qualified and experienced medical malpractice attorneys who understand the importance of comprehensive evaluations of medical malpractice cases prior to litigation, individuals who have been harmed by substandard medical care are able to seek and obtain just compensation.