You may have a medical malpractice case against your doctor if he or she provided, prescribed or advised on treatment to you and that treatment resulted in an injury that would otherwise not have occurred if any other competent and careful physician had worked with you.
You cannot file a lawsuit because you disagree with your doctor or don’t like the results that were achieved. You also cannot file a medical malpractice suit for damages from treatment if the diagnosis and treatment was determined according to accepted practices in the medical field and the treatment was executed with acceptable degree of care.
Medical malpractice suits can only be pursued when the injury and damages you suffered resulted from negligence on your doctor’s part and he or she did not follow medical industry standards or use sufficient care in treating you. If there is evidence that your doctor acted negligently and that negligence resulted in injury to you, then you may have a medical malpractice case.
It should be noted that medical malpractice suits can also be brought against hospitals and other institutions and medical care providers. However, in this article, we are addressing suits brought against doctors.
What You Must Prove
Before filing a medical malpractice lawsuit, you and your attorney need to be sure you can prove all the elements you will be required to prove in court, or be reasonably sure you can prove them once the discovery process begins. In court you’ll be required to prove:
- You had a doctor-patient relationship with the doctor you plan to sue — This is usually easy to prove by providing copies of your medical records and bills from the doctor. If your injury occurred as a result of bad advice from a consulting physician who did not treat you directly, then proving the doctor-patient relationship can be difficult. Note that you can’t sue a doctor for advice you followed that was not given to directly, such as a medical blog or advice given to another patient that you overheard or heard from the other patient.
- The doctor was not reasonably skillful and careful — You must show that your doctor acted in a way or proscribed treatment that a competent and careful doctor would not have. This can be anything from prescribing a medication that reacts dangerously with medications you’re already taking to accidentally leaving a surgical sponge in your body when sewing you up after surgery. It can also include misdiagnosis if the misdiagnosis occurred due to incompetence or lack of appropriate research. A malpractice lawsuit will not be allowed for mistakes that any doctor might be likely to make or because you don’t like the results (or lack of results) of the treatment.
- Your injury was caused by the doctor’s negligence — This is often the most difficult part to prove. If your doctor’s negligence caused injuries that you didn’t have prior to your treatment and are obviously linked to the treatment, you will have an easier case to prove than if the treatment exacerbated or worsened an injury or illness you already had. Depending on the circumstances, the later can be very difficult to prove.
- You suffered specific damages due to the injury — You must be able to show that you were harmed by your doctor’s negligence. The damages you suffer could be as simple as physical pain or additional medical bills, or something more complex such as lost earning capacity or loss of enjoyment of life.
Even if you and your attorney agree that you can prove all the above, there are some additional things to consider before filing a medical malpractice suit. These include:
- Cost — Medical malpractice lawsuits are very expensive. Medical experts, i.e. other doctors, will need to examine you and the evidence and testify to their findings in court. All of this requires an investment of time from the experts and they must be paid regardless of the outcome of your case. Will you or your attorney be able to bankroll the experts’ fees? Who will pay them if your case does not succeed?
- Statute of limitations — Medical malpractice suits must be filed within a certain period of time after the injury or discovery of the injury occurs. Has that time elapsed? Do you have time to gather facts before filing or do you need to file now to avoid missing the deadline and hope you don’t have to drop the suit?
- Damage award limitations — There’s no limit to the amount of damages you can collect on special damages, such as medical bills and loss of income where you can prove the exact dollar amount of the damages. However, in Montana there is a limit of $250,000 on non-economic damages that can be collected in a medical malpractice case. Non-economic damages include things like loss of enjoyment of life or pain and suffering. There is no cap in Wyoming. In any case, will the damages likely to be awarded be enough to cover the cost of the lawsuit and still provide enough recovery to compensate your losses?
- Ability to collect damages — If you win the case, what is the likelihood of collecting the damages awarded to you? Does the doctor have enough resources or insurance to pay the damages owed to you? Will you be able to collect enough to cover lawsuit expenses and adequately compensate you for your losses? You may not know the answer to this until you file the lawsuit and subpoena the doctor’s financial and insurance records.
Get Help Determining Whether You Have a Medical Malpractice Case Against Your Doctor
The personal injury attorneys at Stinson Law Group have extensive experience with medical malpractice cases and can help you evaluate your situation and bring a lawsuit on your behalf if appropriate. If you’ve been injured as a direct result of a doctor’s negligence, Stinson Law Group can help you recover the damages you’ve suffered. Call the medical malpractice lawyers at Stinson Law Group toll free today for a free consultation: (888) 527-6090.