BLOGApr 19, 2017
10 things you need to know about medical malpractice cases
Medical malpractice is arguably the most complex kind of personal injury law. Among all the confusing terms and complicated state rules, it can be difficult for injured patients to understand what exactly goes into their case. To help clear the air, our firm has compiled a list of top ten things you should know about medical malpractice cases.
Each state has a different time limit on when a patient must file a medical malpractice case. This is called a statute of limitations, and in Kentucky it is generally one year after the injury occurred or after which the injury should reasonably have been discovered.
This rule can be murky and depends both on who was injured and what kind of injury occurred. In cases where newborns are hurt (commonly known as a birth injury), in Kentucky the family has up to one year after the child’s 18th birthday to file a lawsuit. In cases of wrongful death, the family usually has one year either after the person’s death or after the deceased’s estate is opened.
Kentucky is one of the states with the shortest statute of limitations. (By comparison, some states allow up to 10 years after an injury to file a lawsuit.) Because of this, patients who believe they were victims of medical malpractice should contact an attorney as soon as they discover their injury. Otherwise, they may miss the window for filing their lawsuit.
Learn more about Kentucky’s statute of limitations.
Some states allow medical malpractice victims to collect compensation based on what is called loss of consortium (or LOC). This is the claim that a person’s injuries affect his or her ability to provide family with love and affection. For couples, LOC provides compensation for the lost ability to have or enjoy sex; for parents who are injured, LOC can be claimed whenever they are unable to provide proper care for their children.
Kentucky allows compensation for loss of consortium. Other nearby states, such as North Carolina, do not. Some states have narrower rules, such as Indiana, where loss of consortium can only be collected by married couples.
What exactly gets defined as “medical malpractice” varies from state to state.
Medical malpractice is defined as an act or omission by a medical provider that falls below a “standard of care” that any other competent entity would have adhered to. Some states, such as Kentucky, rely on a on a national standard of care. This is a standard that, no matter the type of provider or location of care, is the same. Other states such as Tennessee go by a locality rule, where the standard is set by what a physician would do in the same sized town. So, what counts as medical negligence in Nashville may be different from what counts in Sevierville.
There are limitations on the types of medical experts who can testify in a medical malpractice case.
Experts are essential to a successful malpractice case. They are the medical professionals who explain to the jury the science behind the injury in a way that is easy to understand. They also provide credibility to the case.
But who is “credible” changes from state to state. Some states require that an expert is a physician who is currently practicing. Other states, such as Kentucky, allow experts to be physicians who have practiced medicine within a certain period of time. (In Kentucky, that period is two years.)
It’s important to note that a medical expert does not have to reside or practice in the state in which the malpractice case is filed. In fact, experts typically do not live in the state where the case takes place. That’s because many medical experts do not want to testify against doctors in their area. They feel an obligation to protect the medical professionals in their area, and so as not to upset others in their work community, they only testify in far-away states.
This is one of the reasons why malpractice cases are so expensive. Because most experts are located outside the state where the case is filed, they charge for their travel expenses along with their medical expertise. Some experts charge up to $5,000 per hour for their services.
Some states require a malpractice case to be reviewed and certified by a medical expert before it is filed. In Kentucky, cases currently do not have to be certified; however, this will be changing. Kentucky will soon require malpractice cases to be reviewed by a panel of doctors before it is submitted to a court. Though some believe that this system will help prevent “frivolous lawsuits,” in most cases it simply hinders an injured patient’s ability to receive a timely settlement.
Some states also limit the amount a person can receive in compensation from a medical malpractice case. Each state handles this differently. In some states, only “non-economic damages” are capped. These are damages that don’t necessarily have a set monetary value, such as pain and suffering. Other states cap the entire settlement; in Indiana, for instance, a malpractice victim currently cannot receive a settlement greater than $1.25 million.
Luckily, Kentucky does not cap the amount an injured person can receive in a malpractice case. This means that malpractice victims in Kentucky have a better chance at receiving enough of a settlement to cover their healthcare bills, lost wages, and non-economic damages.
Sadly, not all doctors carry medical malpractice insurance—and when these doctors cause injuries, it may be impossible for the victim to receive full compensation.
While most hospitals require their doctors to carry malpractice insurance, thereby protecting their patients, some hospitals don’t. Other doctors avoid paying for insurance and simply put their assets in the name of a third party or spouse; that way, if the doctors are sued, their assets are protected.
In some states, injured patients must qualify under a “loss of chance” rule to receive compensation. “Loss of chance” means that, if you are injured and if there is a certain percentage of chance that the doctor’s negligence caused your injuries, then you have a right of recovery. In Kentucky (like many states), a successful malpractice case must show that there is a greater than 50% chance that the patient’s injuries were caused by medical negligence and not other factors.
Loss of chance is one of the biggest hurdles in obtaining a successful settlement. Medicine is incredibly complex, and it is sometimes difficult to show that a doctor or hospital’s mistakes were the majority cause of an injury. Cases are further complicated when a person has existing health problems that increase their risk of injury or death. For example, older patients or those who are overweight have increased risk for complications during surgeries, and so while their doctor may make a mistake during surgery, the negative outcome potentially could have been a result of (or exacerbated by) their health history.
If you are involved in a medical malpractice case and win or settle your case, you are required to pay back your medical expenses—even if your insurance previously covered your treatments.
However, experienced lawyers can frequently negotiate down the amount paid back to insurance companies. This means that patients will personally receive larger amounts of their settlements.
Attorneys are prohibited from paying for the cost of a malpractice lawsuit if the plaintiff (injured patient) wins or settles their case. However, like most malpractice firms, attorneys’ offices can advance the expenses of a lawsuit to cover costs before the case is decided. This is because malpractice lawsuits are often prohibitively expensive for the average person; some cases can cost over $1 million to bring to trial. Since this cost would keep many injured patients from obtaining justice, lawyers can cover these costs during the trial and are repaid if the case is won or settled.
Importantly, most law firms (such as ours) do not require injured patients to pay back court costs if the case is not won.
As you can see, a successful medical malpractice cases requires sharp minds and a detailed understanding of both medicine and state laws. Because of his background in both law and medicine, Dr. Jack Tolliver is uniquely qualified to handle malpractice cases in Kentucky and nationwide. If you have questions about injuries that you believe resulted from low-quality medical care, contact our office for a free consultation.