Medical Negligence Pre Settlement Funding
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Negligence vs Malpractice: What’s The Difference?
Medical negligence occurs more often than people think. Medical negligence is identified as when a doctor, or any medical professional or entity makes errors in treating a patient. However, just because medical negligence is present, does not mean that it is eligible for a medical negligence lawsuit.
In order for medical negligence to be eligible for a lawsuit, harm or injury onto the patient must also be present. State laws vary, thus laws governing medical negligence lawsuits would also vary depending on the state. However, many states enforce various requirements and regulations prior to filing a lawsuit and it is important to seek a professional attorney to determine if one’s case would be eligible, as well as determining what specific requirements are needed for each lawsuit on a specific state.
When patients suffer from injuries due to medical negligence, it is pretty clear that the injury could have been prevented because such injury would not exist if the negligent act was absent. This only supports the notion that medical negligence is a huge concern for any person and each person is entitled to pursue legal action in the form of a medical negligence lawsuit to recover from the damages that were experienced by the patient.
Plaintiffs can seek for compensatory damages for medical expenses, pain and suffering, wrongful death (in the case of loved ones filing for a suit in behalf of a departed loved one), loss of consortium, lost past and future wages, loss of earning capacity, emotional distress, and even punitive damages if the injuries sustained were so severe that the defendant needs to be punished for his or her negligent act/s.
Attorney Jason Konvicka, in an interview with Forbes, said that most plaintiffs in medical negligence lawsuits end up with nothing or do not receive payouts at all. An alternative to pursuing a suit in court is to end up in an agreement with the defendant in the form of a lawsuit. However, many plaintiffs do not receive the deserved amount they should, that’s why it is vital for plaintiffs to gain the help of an attorney to successfully win a trial or a settlement.
Medical Negligence Lawsuits
When a patient suffers from injuries out of poor medical care due to negligence, the patient can opt to file a lawsuit against the health care professional or hospital because of the negligent act/s or care that was provided, or that was not provided to the patient. Depending on the case, the health professional’s license may be revoked due to the negligent act that had occurred.
In cases of medical negligence lawsuits, three elements have to be established – breach of duty, causation, and damages. Negligence arises when there is a breach of duty of care. As medical professionals, they owe a duty to the patient that the standard of care will be provided. However, duty of care only applies when a doctor-patient relationship has been established. When a medical entity fails to provide such duty, it arises in negligence. Because of the negligent medical treatment, a patient is likely to suffer harm or injury. In legal terms, causation is defined as the negligent act that caused the injury or harm to the patient. Lastly, damages are incurred on the patient, which is also known merely known as the injury.
If harm or injury did not arise from a negligent act, then a person will not be eligible to file such a case in court. In addition to these two pivotal elements, a plaintiff must also prove that a doctor-patient relationship was in existence and that the injuries sustained led to damages on the patient.
Need To Know: Medical Negligence Lawsuits
Plaintiffs who sue for medical negligence are able to recover for compensatory damages such as medical expenses, which include additional expenses if applicable, lost past and future wages, lost earning capacity, loss of consortium, emotional distress, wrongful death, and pain and suffering, among other damages specific on a case to case basis.
It is also important to note that a patient who intends to file a lawsuit must do so under the prescribed statute of limitations. The statute of limitations basically gives a deadline as to when a person can file for a lawsuit. The statute of limitations, however, varies depending on each state. In cases of medical negligence, some states also require plaintiffs to first present their claims to a review panel in order to determine if a case would be eligible for trial.
For a claim to have the backing, it is important to have expert witnesses, usually medical experts, to discuss and explain how the medical entity’s negligence resulted in injury or harm to the patient. Some states also require the presence of an expert witness testimony, depending on the circumstances involved in the case.
Medical records and documents are also a big factor for plaintiffs, as this can also be used to determine and support the claims that are being made against the defendant. Another requirement needed from plaintiffs in a medical negligence lawsuit is a limitation on damage awards. This limitation ultimately puts a cap on the maximum amount of which a plaintiff may recover for damages.
Some states also require patients, or plaintiffs, to give the medical professional or entity a notice regarding the negligence that had occurred, prior to filing such claims in court. This is sometimes required as it grants the medical professional or entity information regarding what may be coming towards them, particularly, a lawsuit. The notice would require the details and necessary information of the suit that will be filed against them, also giving them ample amount of time to prepare for the lawsuit that will be coming.
Medical negligence, in simple terms, is when a doctor, nurse, or any other health care professional breaches the duty or standard of care. Breach of duty [of care] simply means that the patients received care from a medical professional that is below the standard that is expected from a similar and competent medical professional. When the medical professional breaches the duty of care and results in an injury to the patient, then the patient can opt to file a lawsuit against the entity that caused the negligence.
The basis for medical negligence is the when a health care professional fails or breaches the duty of care. As a health care professional, these people are expected to provide care in such a way that is similar to the care to be provided by any other similar professional. The duty of care is deemed to be the standard for providing care by all health care professionals to their patients. Medical negligence lawsuits can be filed against not just the individual medical professionals like doctors, nurses and dentists, but can also be filed against any kind of hospital.
Medical negligence can arise from any kind of medical treatment, from minor treatment in the emergency room to surgery mistakes and even birth defects. Usually, cases of medical negligence arise from childbirth injuries, medication errors, anesthesia errors, emergency room or hospital errors, misdiagnosis or delayed diagnosis, failure to warn patient of known risks and inadequate treatment which can be error in performance or executing such treatment or odd treatment in comparison with the standard of care, among many others. It is important to consult with an attorney that specializes in medical negligence lawsuits to identify if a patient has suffered poor medical care or medical negligence.
Res Ipsa Loquitur
The doctrine of res ipsa loquitur can also be applied in medical negligence cases. The law understands that in certain cases, plaintiffs may have difficulty in proving that the medical entity’s negligence actually occurred.
Res ipsa loquitur may be used by plaintiffs when they are unable to determine the cause of the injury, but the type of injury would have needed the negligence of the medical professional for it to actually exist. When the Latin phrase is translated, it means “the thing speaks for itself” which implies that the plaintiff need only show that the result (the injury) occurred and such result would not have come into existence without the negligence.
In order to successfully use the doctrine of res ipsa loquitur, the plaintiff must be able to show five things: (1) the evidence of the actual cause of the injury cannot be obtained, (2) the injury is not of the nature that can occur in the absence of negligence, (3) the plaintiff was not responsible for the injury, (4) the defendant had exclusive control of the circumstances that caused the said injury, and (5) the injury would not have been caused by any circumstances except for those which the defendant had control. However, it is also important to note that state laws with regard to medical negligence vary, which also include the doctrine of res ipsa loquitur.
Every year, more than 225,000 people die because of medical negligence. Half of this number accounts for deaths in emergency rooms, as published in the Journal of the American Medical Association.
Medical negligence ranks a third leading cause for fatality in the United States, after cancer and heart disease.
A study by the Harvard Medical School also found that more than 5 percent of patients in a hospital have sustained injuries because of medical negligence.
Medication errors harm approximately 1.5 million individuals every year in the United States alone, based on a study done in 2006.
As reported by Forbes in 2013, more than $13 billion were done in payouts for medical negligence lawsuits in 2012. This number averages a payout every 43 minutes.
About 200,000 patient deaths every year in the United States are because of medical errors.
15 percent of all personal injury lawsuits in each year include claims of medical negligence. 80 percent of these lawsuits conclude with no payout to the plaintiffs.
A 1990 study by the Harvard School of Medicine concluded that approximately 3 percent of patients treated in New York State hospitals received injuries from medical negligence.
The Institute of Medicine of the National Academy of Sciences conducted a study in 1999 which showed that as many as 98,000 patients could possibly result in fatalities in hospitals due to medical negligence.
About 2,696 serious disciplinary actions against doctors are made each year in the United States, due to medical negligence. This is based on a report by state medical boards in 1999. Less than half of one percent of doctors in the United States faces these serious state sanctions.
Public Citizen, a non-profit advocacy organization, estimated as much as 1.3 million injuries from medical negligence every year.
Over two thirds of the aforementioned 1.3 million injuries could have been prevented.
Also reported in 1999, the New England Journal of Medicine reported that more than one third of patients that were surveyed said that they or their family members have experienced medical negligence. Most of the negligent acts have led to more severe health consequences.
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