Medical malpractice is much more common than most people realize. Disturbingly, the British Medical Journal (BMJ) found that over a quarter of a million Americans die each year from medical malpractice—greater than the entire population of Orlando, Florida.
This sobering statistic reveals medical malpractice to be America’s third-leading cause of death, behind only heart disease and cancer. Read on to learn all about medical malpractice lawsuits and how to get compensation.
What Is Medical Malpractice?
Medical malpractice occurs when a healthcare professional’s treatment of their patient falls below the generally accepted standard of care.
Because healthcare professionals possess training and experience, this standard of care is much higher than it is for, say, a “Good Samaritan” passerby who rendered first aid at the scene of a traffic accident. Failure to act when action is required can also constitute medical malpractice.
The Legal Elements of a Medical Malpractice Claim
Medical malpractice is based on medical negligence, and it is negligence (at least) that you must prove to win. The legal elements of a medical malpractice lawsuit are:
- A pre-existing doctor-patient relationship. This element might not be present, for example, in the “Good Samaritan” incident described above. In almost every other situation, this element is present.
- A specific duty of care. You must establish that the healthcare provider owed you a duty of care, given the specific facts of the case. You might need an expert witness to establish this, as it is very circumstantial.
- The defendant breached their duty of care. That means they did something they shouldn’t have done or they didn’t do something they should have done.
- The plaintiff suffered physical harm. A “good scare” arising from the mistaken diagnosis of a terminal disease in a healthy patient is (usually) not enough. Nevertheless, once you prove physical harm, you can recover for the accompanying emotional distress.
- The defendant’s breach of duty was the actual cause of the plaintiff’s harm. In other words, absent the breach of duty, the harm would never have occurred.
- The plaintiff’s harm was a foreseeable consequence of the defendant’s breach of duty (this is called proximate cause). Freak accidents do not generate liability even if the “actual cause” element is present.
To win your medical malpractice claim, you must prove every one of these five elements of medical malpractice by a “preponderance of the evidence” standard.
Can You Use Expert Witnesses in Settlement Negotiations?
Yes, you can—and they can be quite effective at securing a generous settlement. The general advice is to increase the likelihood of settlement by showing the opposing party you are ready to win at trial.
Producing a competent expert witness who is willing to testify in your favor goes a long way toward proving you can win at trial. And if the opposing party is still too stubborn to settle, take them to trial.
Controversies Involving the Use of Expert Witnesses
Expert witnesses are an occasional feature of many different types of personal injury claims. In medical malpractice claims, by contrast, the use of expert witnesses is routine.
Very often, both sides call expert witnesses who testify in contradiction to each other. Thus the proceedings become a “battle of the experts” in which the credibility of the experts determines which side wins.
Following is a list of some controversies that arise because of the use of expert witnesses:
- Paid expert witnesses. Paying witnesses is routine, but this practice does raise questions about objectivity. When the defense is the party paying the witness, is it any wonder that the expert’s testimony favors the defense?
- Qualifications. Not all experts require PhDs in their field of expertise. Nevertheless, it’s one thing for an opposing lawyer to question a witness’s qualifications on the stand in front of a jury. It’s another thing to refuse to allow the jury to hear the witness’s testimony in the first place.
- Jury misunderstanding: Complex subject matter might be lost on jurors who lack the appropriate educational background to understand the issues of the case. In fact, some unscrupulous defendants might even deliberately confuse jurors to prevent them from reaching a verdict.
Despite the inevitable controversies, it would be next to impossible to resolve most medical malpractice claims without the use of expert witnesses.
Damages Available in Medical Malpractice Lawsuits
Damages in a medical malpractice claim can be significant. The two primary categories are called economic damages and non-economic damages. These can include:
- Past, present, and future medical expenses;
- Lost earnings;
- Diminished earning capacity;
- Out-of-pocket expenses;
- Pain and suffering;
- Mental anguish;
- Loss of enjoyment of life; and
- Disfigurement.
You can add punitive damages to the foregoing damage if the defendant’s conduct was outrageous enough (your surgeon operated on you while intoxicated, for example).
Wrongful Death
What happens when someone with a personal injury claim dies from their injuries? Does their claim die with them? No, at least not in Georgia. Instead, the personal injury claim becomes a wrongful death claim.
Georgia law allows certain surviving relatives (such as a spouse or parents) to file a wrongful death claim. The victim’s probate estate can also collect certain forms of damages. Possible damages include:
- Lost earnings by the deceased;
- Lost care, companionship, counsel, and advice;
- The victim’s medical expenses;
- Funeral and burial expenses; and
- Other expenses, borne by the estate, that arose from the victim’s death.
These damages can be substantial, since they represent the value of a human life.
The Preliminary Affidavit Requirement
Before a court will hear your medical malpractice claim, Georgia Code § 9-11-9-1 requires you to submit an affidavit signed (and sworn) by a medical expert. The affidavit must state that the expert believes the defendant committed at least one act of medical malpractice. Failure to file the affidavit will result in immediate dismissal of your medical malpractice claim.
Georgia instituted this requirement in response to a flood of frivolous medical malpractice lawsuits that were pushing up the costs of medical care and driving doctors out of the state.
The Statute of Limitations in Medical Malpractice Cases
The statute of limitations sets a deadline by which you must file a lawsuit, finalize a settlement, or abandon your claim. Every state has its own statute of limitations. In Georgia, the general statute of limitations deadline is two years after the date that the malpractice occurred. However, there are exceptions.
The Discovery Rule
It is not always possible to know of medical malpractice immediately after it occurs. Suppose a doctor negligently left a medical instrument inside your body after surgery – you might not find out about this injury until long after the fact.
For this reason, Georgia has instituted the discovery rule, which allows you to suspend the ticking of the statute of limitations clock until you discover (or should have discovered) your injury or your healthcare provider’s responsibility for the injury.
The Georgia statute of limitations law is complex. The discovery rule is an exception, but there are also exceptions to this exception. Consult with your lawyer on this matter.
It’s Not a Good Idea To File This Type of Claim Without an Atlanta Medical Malpractice Lawyer
Medical malpractice claims are among the hardest of all claims to win because of the technical nature of the subject matter and fierce resistance from defendants. Nevertheless, plaintiffs who do manage to win a medical malpractice claim with the help of a lawyer often discover that they are among the most lucrative of all personal injury claims.
The best advice boils down to a simple reality: an experienced Atlanta medical malpractice lawyer is a practical necessity.