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How to Know if You Have a Medical Malpractice Lawsuit

How to Know if you have a Medical Malpractice Lawsuit

Important Factors in a Medical Malpractice Lawsuit

A question that Ohio Medical Malpractice attorney Allen Tittle gets a lot is, “When should I file a medical malpractice lawsuit?” or “Do I have a case?”. There are two things he feels you should know upfront:

  1. The first thing you need to know is that there is a statute of limitations for any malpractice case. Defined legally, the statute of limitations is “a statute prescribing a period of limitation for the bringing of certain kinds of legal action”. In the state of Ohio, the statute of limitations in a medical malpractice case is one year from the date of the malpractice, one year from the date that you should have discovered the malpractice, or one year from the termination of the physician-patient relationship for the subject area of the malpractice, with some exceptions.
  2. The second thing you should know is that each law firm has strict case criteria in order to accept a medical malpractice case. Our firm has our own case criteria:

These are the main types of injuries that we represent in Ohio medical malpractice cases. You might be wondering why? The reason that we must have this strict case criteria is because Ohio has tort reform. This means that there are many laws that protect doctors and hospitals and make medical malpractice cases extremely expensive to prosecute. Ohio also has damage caps on specific types of claims. This means that even if we go to trial and get a jury verdict for $1 billion, the judge will still reduce that verdict to $250,000.

Ohio Medical Malpractice Settlements

If you suffered an injury due to the negligence of another party, you are entitled to compensation for your damages. To get that compensation, you need to start a Medical Malpractice Settlement. Your claim will settle quickly and fairly so you can get the compensation needed to move on with your life.
Medical malpractice settlements have some limitations that can make them challenging. Ohio medical malpractice attorneys discuss what you need to know about Ohio medical malpractice settlements.

medical malpractice suit

The Settlement Process Starts With Negotiation

A medical malpractice settlement will only resolve through a productive negotiation. While talking to the insurance company, you need a qualified attorney at your side to maximize your settlement offer. There are two key aspects to any medical malpractice claim:

  • Proving liability; and
  • Proving the value of your damages.

Under Some Insurance Policies, The Doctor(s) Must Approve the Settlement

Medical malpractice claims are generally handled by insurance companies. These claims are like other personal injury claims where insurers represent the defendant. In most personal injury claims the insurance company will have full authority to settle the case. If the defendant does not want to settle, it does not matter.

This may not be true in some medical malpractices cases. In some cases, the defendants have a “consent policy.” It mandates that he or she must sign off on any settlement agreement that their insurance company has reached.

In some cases, doctors fail to assess their own case in a rational, unbiased manner, and they refuse to settle. You may need to push your case to trial to recover the compensation that you deserve.

Medical Malpractice Settlements: Structured vs. Lump Sum

When your case settles, you may choose to take your compensation as a ‘lump sum’ or in a structured settlement.

A structured settlement is preferable if you want to receive your compensation over time. You and your attorney will have the power to negotiate with the insurance company. It is imperative that you are able to craft the payment structure that best suits your needs and desires.

Are There Damage Caps in Ohio Medical Malpractice Claims?

Like many states, Ohio has a statute that limits the amount of money that can be awarded to a victim of medical malpractice. This limit is called a “Damage Cap” and is put in place to “cap” the amount of compensation the plaintiff will actually receive after winning a medical malpractice lawsuit.

Before discussing specific limitations, it’s important to understand the two different types of damages in medical malpractice cases: economic and non-economic.

Economic Damages

When a person is the victim of medical malpractice in Ohio, they are able to collect money for things such as medical care, lost wages, lost earning capacity, and several other financial burdens that resulted from the malpractice. These financial reimbursements are called “Economic Damages” and are awarded as a direct result of measurable financial loss. These damages are things that can be visually added up, resulting in a specific dollar amount that the plaintiff should be compensated for.

Non-Economic Damages

Another kind of compensation that a victim can receive is called “Non-Economic Damages”. Non-economic damages include things like pain and suffering, permanent disability, emotional distress, trauma, and loss of enjoyment of life as a result of the malpractice incident. These damages vary from case to case and tend to be seen as more “subjective” due to the varying interpretations of each topic. Although non-economic damages are not necessarily measurable, some of the greatest losses after a catastrophic injury tend to be in this category. For example, if someone is seriously injured and cannot take part in “normal” activities such as standing for long periods of time, dressing themselves or their children, or taking walks with their family, their lives have forever been altered and they can no longer enjoy the lifestyle they once had.

Now that you understand the difference between economic and non-economic damages, we can address the question of damage caps in Ohio.

Do You Know Ohio Laws? | Damage Caps

“Are There Any Damage Caps in Ohio Medical Malpractice Claims?”

In 2003, the Ohio legislature passed a statute that limits the amount of compensation awarded to victims of medical malpractice. However, the medical malpractice damages cap only applies to non-economic damages.

Under this statute, the plaintiff cannot be awarded more than $250,000 OR three times the plaintiff’s economic damages, maxing out at $350,000 per person. If the malpractice incident resulted in permanent or catastrophic injuries, however, the cap may be increased to $500,000 per victim.
Although $500,000 can appear to be a large award, for many people, it doesn’t scratch the surface of the pain and suffering they will go through as a result of the incident. Many malpractice cases result in permanent, irreversible damages to the victim and prevent them from doing the things they once enjoyed.

What Does This Mean for Victims?

Ohio has a cap on non-economic damages, therefore a jury could award the plaintiff 10 Million dollars for pain and suffering, but the victim will only receive what is legal under the cap. This compensation could be as little as $250,000, or 40% less than actually awarded.

Unfortunately, the emotional damage sustained from a malpractice incident can immeasurable. If you or a loved one has been a victim of medical malpractice, it’s important to seek help immediately. The statute of limitations in Ohio is limiting and requires prompt action in order to receive compensation.
Speaking with an experienced attorney can help get some of the justice you deserve.

How Long Does a Minor Have to File a Medical Malpractice Claim in Ohio?

Medical malpractice claims in Ohio are subject to strict time limits. Normally, a patient has just one year from the date of a loss or injury to sue a healthcare provider. But there are exceptions to this statute of limitations. For example, if you send the doctor, hospital, or other healthcare provider advance notice of your intention to file a malpractice claim, the deadline to actually file the suit is extended 180 days. There are also situations where the provider may agree to an additional extension of the statute of limitations, particularly in cases where it may be possible to negotiate an out-of-court settlement.

Doctor Unable to Escape Malpractice Claim After Court Clerk’s Error

Another exception to the statute of limitations is for medical malpractice claims involving minors. For these individuals, the one-year clock does not start to run until their 18th birthday, regardless of when the actual injury occurred. In other words, if you are injured due to malpractice when you were 15, you would have until your 19th birthday to sue the doctor in question, subject to any of the extensions described above.

Here is a practical example of what we are talking about. This is taken from a recent Cleveland medical malpractice case, Jones v. University Hospitals. The plaintiff was born in April 1999. She received medical care from the defendants–a doctor, a medical practice group, and a hospital–during a period extending from 2011 to 2014. In April 2016, the plaintiff’s lawyer sent 180-day notices to the medical group and the doctor, but not the hospital. But all of the defendants subsequently entered into an agreement to further “toll” the statute of limitations for any claims that had not expired as of December 31, 2016, in order to facilitate settlement talks.

When no settlement was reached, the plaintiff’s attorney filed a formal medical malpractice complaint against the hospital and the doctor on March 30, 2017. The Cuyahoga County Clerk of Courts returned the complaint, however, alleging it was “not properly formatted and did not comply with the local [court] rules.” The plaintiff then filed her complaint with the court electronically on May 31, 2017.

The defendants argued the plaintiff failed to file her lawsuit before the statute of limitations expired. Essentially, the limitations period would normally have ended on the plaintiff’s 19th birthday–April 26, 2016–but it was extended by the 180-day notice and the tolling agreement. But as the hospital defendants noted, the tolling agreement only extended the deadline for claims “not already barred by the statute of limitations.” And they never received 180-day letters, so those claims on the plaintiff’s 19th birthday.

As for the doctor, he maintained that since the clerk rejected the plaintiff’s initial complaint filed on March 30, 2017–two days before the tolling agreement’s revised deadline–any claims against him were similarly barred by the statute of limitations.

In sorting all this out, the Ohio 8th Appellate District split the difference. It agreed with the hospital defendants that any claims against them expired on the plaintiff’s 19th birthday. But it also said the plaintiff’s lawsuit could still proceed against the doctor, because the clerk had no legal authority to reject her initial complaint for technical mistakes. Therefore, the plaintiff did comply with the statute of limitations with respect to the doctor.

How Delayed Discovery of an Injury Can Affect Your Medical Malpractice Claim

Misdiagnosis is a serious form of medical malpractice that often leads to patients receiving incorrect or delayed treatment for a serious condition. Although we often associate misdiagnosis with cancer cases, there are many other types of life-threatening injuries that are frequently misdiagnosed in the Cleveland area–such as traumatic brain injuries.

Sometimes referred to by the less-threatening term “concussion,” a traumatic brain injury may go undiagnosed for days, weeks, or even years. In many cases, patients appear fine in the immediate aftermath of a head injury. Only later do they realize something is wrong, and if a doctor’s misdiagnosis is to blame, the victim may have a claim for damages.

There is, however, something to keep in mind–no pun intended–when it comes to misdiagnosis and delayed diagnosis cases. Ohio has a four-year statute of repose with respect to medical malpractice claims. A statute of repose is not the same thing as a statute of limitations. The latter refers to the normal one-year deadline for filing malpractice claims. But if the malpractice is discovered after the one-year deadline, the victim may still be able to pursue a malpractice claim provided he or she does so within four years of the original misdiagnosis.

This so-called discovery rule is not quite as simple as it sounds. It only applies when the victim had no knowledge of the injury beforehand–or could not have “reasonably” determined the doctor may have done something wrong at an earlier date. And according to the Ohio Supreme Court, it is not necessary for the victim to “be aware of the full extent” of the injury beforehand, only that some “noteworthy event” occurred that would “alert a reasonable person-patient that an improper medical procedure, treatment or diagnosis has taken place.”

Discovery Rule Plays Key Role in NCAA Concussion Lawsuit

The Supreme Court recently weighed in again on the application of the delayed discovery rule in a case that has drawn national attention. In Schmitz v. National Collegiate Athletic Association, a now-deceased college football player sued the NCAA and the University of Notre Dame, alleging he developed chronic traumatic encephalopathy (CTE) and other impairments as the result of multiple traumatic brain injuries he sustained while playing college football for Notre Dame in the mid-1970s. The lawsuit basically accuses the NCAA and the school of failing to “notify, educate, and protect” the decedent about the risks of multiple head injuries at the time he played.

The decedent did not receive his CTE diagnosis until 2012. But the NCAA and Notre Dame argued the limitations period should have started to run–and thus expired–back in the 1970s when the original football injuries occurred. The Supreme Court disagreed with that reasoning, noting that “head injuries, including concussions, are an inherent part of football.” Here, the decedent allegedly suffered a “latent” injury–in the form of CTE–that was not reasonably discovered until 2012. So that was the point when the clock started to run on the statute of limitations.

Now, it should be noted the Schmitz case is not about medical malpractice, although the Court applied its malpractice decisions in assessing the discovery rule. There is still a strict four-year statute of repose applicable to traditional malpractice claims. So if you have any reason to suspect you are the victim of a misdiagnosed traumatic brain injury, you need to contact a qualified Cleveland medical malpractice attorney as soon as possible. 

Contacting a Cleveland Medical Malpractice Lawyer

When looking to bring a medical malpractice case to action in Cleveland, these are two important factors you should be aware of in advance, as they will directly impact your ability to file a lawsuit. If you have any questions on whether you should pursue a medical malpractice case or when you should file it, our experienced legal team can help. We can discuss the statute of limitations as well as your injuries during a free case strategy session. Give us a call.