Still Waiting on Your Medical Malpractice Settlement? TriMark Can Help
The health care industry as a whole has spent decades, and hundreds of billions of dollars, lobbying and defending itself against both legitimate and, what it claims to be, “frivolous medical malpractice litigation”. The claim of frivolity is, unfortunately, occasionally warranted, so the severity of actual injury and the degree to which the physician or healthcare provider deviated from “accepted standards of care” will always take center stage in any successful lawsuit.
Many malpractice suits against doctors and nurses are brought by plaintiffs because they believe negligence occurred or a mistake was made, but they are later dismissed or lost because it did not meet certain criteria.
“Actionable” malpractice occurs when negligent conduct by a health care provider causes serious damage and usually, permanent injury or death to the patient. There may be so-called “malpractice” from a consumer’s point of view, inasmuch as a doctor may have made a mistake or acted negligently, but the linchpin is whether or not that conduct caused significant injury or suffering to the patient. If it did not, while possibly still negligent, it is not a matter for the legal system. When a plaintiff is able to demonstrate permanent injury or death, clearly caused by incompetence or negligence on the part of the doctor, nurse, surgeon or other health care provider, the plaintiff can usually expect to prevail in court.
The Importance of Expert Testimony
When assigning culpability in these types of cases, attorneys for both sides rely heavily on sworn testimony furnished by expert witnesses; so much reliance in fact, that it’s fair to say that most cases are won or lost based on expert testimony and the expert’s credibility in the field.
Obviously the scope and severity of injuries will play an important role as well, but these are frequently mitigated by the defense when skillful expert testimony is able to suggest, and then support, the claim that an accepted standard of care may not have been breached.
EXCEPTION TO THE RULE:
An exception to the strict requirement for expert reports in legal funding might be in cases of gross medical negligence or gross incompetence with admitted liability. For example a doctor leaves a metal surgical instrument inside a patient’s body, which then pierces the heart causing immediate death, or a surgeon removes the wrong organ or body part, called wrong site surgery. No credible expert could argue the acceptable standard of care was not breached in these cases.
The plaintiff who can provide credible, incontestable expert testimony that points the “smoking gun” of liability directly at the defendant(s) by clearly demonstrating a significant deviation from the accepted standard of care can expect to prevail, either in court or in settlement discussions. Without that “smoking gun” however, medical malpractice lawsuits can quickly fall apart.
Alarming Medical Malpractice Statistics
When you look at these statistics, it’s no wonder the insurance industry lobbies Washington DC politicians so heavily to institute caps on malpractice litigation awards.
An estimated 225,000 people die each year from some form of medical malpractice, from incorrect medicine dosages to surgical errors, to medical misdiagnosis and failure to diagnose and failure to treat in time. This is the third most common reason for death in the United States.
A 2002 study by Healthgrades found that an average of 195,000 hospital deaths in America were due to potentially preventable medical errors.
The Institute of Medicine estimates that medication errors are the most common of medical errors, with 1.5 million people suffering injury from these mistakes each year.
According to Bureau of Justice Statistics, a full half of medical malpractice suits are filed against practicing surgeons.
One statistic shows that 12,000 people per year die from unnecessary surgery.
The Journal of the American Medical Association reports that 106,000 patients die each year because of the negative effects of their medication.
Only 2% of those who suffer from malpractice ever file claims for compensation. Even fewer ever receive compensation for their injury, failing health, or pain and suffering.
Between the years of 1990 and 2003, 8,151 malpractice payment reports were made against doctors in Illinois.
Between the years of 1990 and 2003, 2,570 malpractice reports were filed against physicians in Indiana.
Pre Settlement Funding Requirements
For the above-mentioned reason pertaining to proving culpability, TriMark Legal Funding LLC will normally only consider pre settlement funding on cases where:
There is gross medical incompetence or negligence as noted above, or
The plaintiff’s attorney has already engaged expert witnesses, those experts have already generated their reports and those reports are available for our confidential review during underwriting.
According to the latest statistics, only about 1 in every 4 medmal lawsuits end with a successful verdict or settlement against the defendant. In other words, 3 out of every 4 malpractice suits against doctors lose. That one fact is what makes medical malpractice cases, hands down, the riskiest type of case for the legal funding industry to invest in.
To help mitigate that risk, TriMark Legal Funding LLC has established the following minimum guidelines and will only consider plaintiff funding on cases where the following conditions are met:
The plaintiff died as a direct result of the malpractice OR the plaintiff has suffered serious, permanent or irreparable physical injury or harm.
There must be reasonable expectation the case will result in a significant damage award to the plaintiff in excess of $50,000 net (after attorney fees, case costs, etc.)
Except in cases of gross, undeniable negligence or incompetence as noted above, at least one expert witness must be retained and their report must be available for our review during underwriting.
Medical malpractice occurs when a doctor or any medical professional commits omission or errors with regard to a patient. While there are several requirements needed in order to pass as medical malpractice, filing a lawsuit under this claim would also require special limitations that are different to the former. There are many common cases of medical malpractice such as delayed or wrongful diagnosis, anesthesia errors, childbirth injuries, inadequate treatment, hospital or emergency room errors, and even any form of negligence on the doctor’s or medical professional’s part.
However, just because a patient was dissatisfied with the outcome or the performance of the medical professional, doesn’t mean that the professional acted in the form of medical negligence. The patient must have been harmed due to the medical professional’s negligence in order for it to count as medical malpractice.
Medical malpractice happens very often in the United States. The Journal of the American Medical Association, in fact, reported that medical malpractice is the third most common cause of death in the United States each year, right below heart disease and cancer. Medical malpractice is a big concern as patients who have sustained injuries from medical negligence could have been prevented. Many medical professionals and even hospitals face thousands of lawsuits due to medical malpractice.
Plaintiffs in medical malpractice lawsuits often end up with nothing, as said by Attorney Jason Konvicka in an interview with Forbes. Therefore, it is important for plaintiffs to get a really good lawyer, get expert testimonies that can support their medical malpractice claims, and obtain pertinent information that can prove that the plaintiffs were indeed injured by medical professionals such as medical documentation of the injuries that were sustained as a result of the medical negligence that the medical professional had committed. It is also important for harmed patients to note that the three elements – breach of accepted standard of care, causation, and damages are very important and not to mention, necessary in every case of medical malpractice lawsuits.
Medical Malpractice Lawsuits
In cases of filing for a medical malpractice lawsuit, the plaintiff must prove that the medical professional had committed an error or mistake and that the plaintiff was harmed or injured because of that very mistake. A medical malpractice lawsuit cannot be filed unless the patient was harmed because of the medical professional’s errors.
Aside from this, plaintiffs must also prove that a doctor-patient relationship was in existence, that the doctor was negligent, that the negligence indeed caused the injury of the patient, and that the injury led to certain damages on the patient like physical pain, mental anguish, additional medical bills, and lost work and earning capacity.
There are various requirements before a patient can file a medical malpractice lawsuit. As there are different laws governing each state, these requirements would vary depending on the area they are in. Because medical malpractice cases have to be filed soon after the surgery, it is important to note the time period in which a suit may be filed. This time period varies between six months to two years, depending on the state. Some states also require the patient to first present their claims to a malpractice review panel in order to decide if medical malpractice does exist in the case.
In order to prove that the professional’s mistake resulted in harm to the patient, it is a general rule that an expert witness must explain how the certain mistake caused the damage. Having an expert witness will help the plaintiff in solidifying the claims of medical malpractice. This is also a requirement in some states, but would also vary on the circumstances of the case. All medical documents can help make a plaintiff’s case and claims stronger and it is important for a lawyer to get access on all possible medical documents, records, tests and the like to also help plaintiffs and lawyers determine the claim for medical malpractice.
Other states also require patients to give the doctor or medical professional a notice regarding the malpractice, before filing lawsuits in court. It basically grants fairness to the doctor as the notice would basically describe and give the professional a head’s up of what’s to come. Lastly, another requirement needed in a medical malpractice lawsuit is the limit on damage awards – it basically states the ceiling price of the amount that may be awarded to a medical malpractice patient.
Plaintiffs can claim for various kinds of damages against the defendant, which include medical expenses, lost past and future wages, loss of consortium, pain and suffering, emotional distress, wrongful death, and punitive damages depending on the case.
What is Medical Malpractice?
It is important to remember that medical professionals are human too; thus, they are also capable of committing mistakes or of omission; that of which could occur at any given time during medical treatment. It is also important to note that it doesn’t necessarily count as medical malpractice or negligence if a patient is unhappy with the treatment process or method or its outcome, or if the medical professional had made a mistake. The legal definition of medical malpractice states that the professional was negligent in some way to have caused an injury or harm to the patient.
Medical malpractice is not limited to just doctors, but to any medical professional (i.e. nurses, technicians, etc.) that either does something or fails to do something that caused injury or harm onto a patient. The proper law term for this error on the medical professional’s part is medical negligence. In these situations, the important thing to take note of is the standard of care.
Standard of care refers to a generally accepted method to be performed on the patient that is used by other medical professionals in the area to treat other patients with similar conditions. The breach of the accepted standard of care results in causation and damages to the patient. Causation is the relationship between the injury incurred on the patient and the negligent medical treatment. These three elements – breach of accepted standard of care, causation, and damages – are necessary in a medical malpractice case.
It is important to remember that while medical negligence is a prerequisite as a basis for a medical malpractice lawsuit, medical negligence does not always result in medical malpractice. Negligence may occur but may not always cause injury or harm onto a patient. If a medical professional does not uphold the Hippocratic Oath, it thereby results in medical negligence.
Medical malpractice claims can stem from different kinds of cases, ranging from minor to major mistakes. The most common cases include the failure to diagnose a patient properly (misdiagnosis, delayed diagnosis or actually finding out what the illness was), inadequate or improper treatment (from error in performance of the treatment to treating a patient in such a way that is odd in comparison with other competent doctors), and failure to warn a patient of known risks (it is the doctor’s responsibility to educate the patient of the risks associated with the illness or treatment and failure to do so warrants medical negligence, as well as pursuing a medical treatment method that injure the patient all while knowing that the procedure could inherently harm the patient).
Negligence in terms of diagnosis or the lack thereof attribute to a large percentage of complaints in the field of medical malpractice. This issue is not easily dismissed as patients could have missed treatment opportunities which could have prevented some sort of harm or death on the patient. Surgery errors also account for a substantial number of medical malpractices – anything can go wrong during surgery and doctors are liable for the errors that happen during or even after surgery.
Childbirth injuries are also a common case. While fetal injuries may be caused by medical malpractice, this does not necessarily mean that the injuries were caused by the medical professional’s shortcoming since it could also stem from something else. Negligence in this faction can occur during or even long before childbirth. Childbirth injuries may be caused by the following: negligent prenatal care especially in cases of medical treatment during pregnancy that could hard the fetus, the mother, or both individuals; and negligence during childbirth which could hard the baby and/or mother.
Medication errors have harmed about 1.5 million people in the United States each year, as reported by a 2006 study. These errors can happen at any time or in any way, ranging from prescriptions to drug administration. Anesthesia errors are also a common form of medical malpractice. Because anesthesia is vital in surgery and are as dangerous as surgery mistakes, even anesthesiologists can make errors prior to even administering the anesthesia.
Emergency rooms are known the have a chaotic environment. Medical professionals are expected to comply with their duties while upholding the accepted standard of care in patients even in the stressful environment. However, negligence by medical professionals still have a tendency to happen in these situations and a patient may file for a lawsuit in the case of medical malpractice which could have occurred in the emergency room. Hospital malpractice can also lead to negligence or malpractice lawsuit when patients become injured while under the care of the hospital, as long as it meets the requirements of a medical malpractice lawsuit.
Studies and Statistics
Forbes reported in 2013 that over $13 billion was spent in 2012 for payouts in medical malpractice lawsuits. This averages a payout every 43 minutes. Jason Konvicka, one of the top lawyers in Virginia and a partner in the Allen, Allen, Allen & Allen law firm, said in his interview with Forbes that medical malpractice cases are extremely expensive and are highly probable of failure.
Konvicka also noted that medical errors result in approximately 200,000 deaths of patients every year in the United States. Out of all the personal injury lawsuits filed each year, 15 percent involve claims of medical malpractice. Over 80 percent of those lawsuits, however, conclude with no payment to the survivors or the patient that was injured.
According to a report published by Forbes, the Journal of the American Medical Association stated that medical malpractice is third in the list of main causes of deaths in the United States, following heart disease and cancer. The Harvard School of Medicine conducted a study in 1990. The prestigious Ivy League university assessed that about 3 percent of patients that were treated in New York State hospitals retained injuries due to medical errors.
Nine years later, a study conducted by the Institute of Medicine of the National Academy of Sciences appraised as much as 98,000 patients that may result in death in hospitals, purely because of medical mistakes. Less than half of one percent of the United States’ doctors faces serious state sanctions, as reported by state medical boards in 1999. It sums up to 2,696 serious disciplinary actions in a year.
The non-profit advocacy organization, Public Citizen, estimates that 1.3 million injuries are due to professional negligence per year. More than two thirds of those injuries could have been prevented. The New England Journal of Medicine reported in 1999 that over on third of the patients they had surveyed said that they or their family members have encountered medical errors, with most of the errors leading to more serious consequences in terms of health.
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