Medical malpractice and wrongful death claims are two types of civil claims that you might bring while seeking damages. The term “medical malpractice” tells you whose misconduct caused the incident for which you are seeking damages, while “wrongful death” refers to the consequences of certain types of misconduct.
What is Medical Malpractice?
Medical malpractice arises when a healthcare provider’s actions or inactions deviate from the accepted standard of care and harm a patient. This “misconduct” is often medical negligence, but in some cases, it may involve recklessness or even intentional wrongdoing (such as operating on a patient while under the influence). The responsible party could be a doctor, hospital, nurse, pharmacist, therapist, medical technician, nursing home, or any other healthcare entity.
The Elements of a Georgia Medical Malpractice Claim
To win a medical malpractice claim, you need to prove the following five facts (“elements”):
- The existence of a doctor-patient relationship
- A particular duty of care
- Breach of the applicable duty of care
- Harm
- Causation (the breach of duty caused the harm)
There is generally a two-year statute of limitations for filing a Georgia medical malpractice claim, although exceptions sometimes apply.
The “Affidavit of Expert” Requirement
Another unique feature of medical malpractice claims is the routine use of expert witnesses. To discourage frivolous medical malpractice lawsuits, you must also file an “affidavit of expert” in which a medical expert asserts that your claim has merit.
Medical Malpractice Damages
Georgia recognizes the following types of medical malpractice damages in personal injury cases:
- Economic damages: Tangible losses such as medical expenses and lost earnings.
- Non-economic damages: Intangible losses such as pain and suffering.
- Punitive damages: An extra amount, occasionally awarded, to punish the defendant if their behavior was outrageous. Typically, most of this money goes to the Georgia state government, although at least some goes to the victims.
You must prove every penny of damages that you claim through evidence.
What is Wrongful Death?
A wrongful death claim arises when someone dies from an injury or illness that would have constituted a personal injury claim if they hadn’t died from it. A wrongful death claim can arise from several different incidents–a car accident, a slip and fall accident, a work-related accident, or even medical malpractice. Wrongful death is not murder. Murder is a criminal charge, while wrongful death is a civil claim seeking damages.
The Elements of a Wrongful Death Claim
To win a wrongful death claim, you must prove the following elements:
- The death of a person
- Wrongful behavior (an act or a failure to act)
- Causation
- Damages
A wrongful act could mean, for example, running a stop light. A wrongful omission might mean a doctor failing to order lab tests when appropriate. The exact value of the victim’s life (in dollars and cents) depends on several factors.
Who Files a Wrongful Death Claim?
The following parties can file a wrongful death claim:
- The surviving spouse
- If there is no spouse, the surviving children
- If there is no surviving spouse or children, the surviving parents
- If there are no eligible surviving relatives, then the victim’s estate executor can file a wrongful death claim on behalf of the estate
If any eligible relative files the lawsuit, the court will apportion damages among all surviving relatives. If the estate executor files the lawsuit, damages ultimately go to estate beneficiaries.
Wrongful Death Damages
The damages available for a wrongful death claim differ from the damages available for a personal injury claim. These damages can include:
- Economic losses, such as lost wages and benefits
- Non-economic losses, such as loss of companionship, care, and protection
The estate executor can also file a “survival action” seeking the following damages:
- Funeral and burial expenses
- Medical bills for the deceased victim prior to death
- Pain and suffering by the deceased victim prior to death
Wrongful death actions and survival actions can take place simultaneously.
Wrongful Death Claims Based on Medical Malpractice
Suppose a doctor fails to order lab tests in response to a patient’s description of ominous symptoms. The result is a terminal disease that probably could have been cured if the doctor had ordered lab tests in time. The patient then dies. The result would be a wrongful death claim based on medical malpractice.
A Georgia Personal Injury Lawyer Can Help Establish Your Claim
A Georgia personal injury lawyer probably won’t even try to charge you by the “billable hour.” Instead, personal injury lawyers typically charge based on the contingency fee system. This means you only pay legal fees if you win, and your legal fees will amount to a percentage of whatever amount you win.
Contact Malone Law Medical Malpractice and Severe Injury Lawyers to schedule a free consultation and get your medical malpractice or wrongful death questions answered.
Contact the Atlanta Medical Malpractice Law Firm of Malone Law Medical Malpractice and Severe Injury Lawyers for Help Today
If you or a close one have suffered from medical malpractice in Atlanta, Georgia, please call Malone Law Medical Malpractice and Severe Injury Lawyers at (770) 390-7550 or contact us online to schedule a free case evaluation today.
We proudly serve in Fulton County.
Malone Law Medical Malpractice and Severe Injury Lawyers
2 Ravinia Dr NE Suite 300
Atlanta, GA 30346