Do You Have a Valid Medical Malpractice Lawsuit?

What Acts May Constitute “Malpractice”?

Medical malpractice can refer to a number of actions or inactions. These go beyond simple human error. While most malpractice cases are not the result of intentional malfeasance, they do involve negligence. In other words, the doctor wasn’t trying to hurt patient. The issue is, it still happened. Here are a few examples:

• A doctor fails to properly diagnose a patient’s medical condition;
• Conversely, there is a misdiagnosis – e.g., a doctor tells a patient they have cancer when they do not;
• There is an unreasonable delay in providing treatment. Perhaps medical staff forces a patient to wait too long for an emergency procedure;
• A doctor or hospital fails to provide medically appropriate treatment for the patient’s condition;
• There are mistakes made during treatment, e.g. a doctor makes the wrong cut during surgery; and
• A nurse or other hospital staff fails to properly carry out physician orders. For example, dispensing the wrong medication to a patient.

How Do I Establish There Was Malpractice?

Medical malpractice is different from other types of personal injury claims. If a negligent driver runs a red light and hits your car, you do not need an expert witness to establish the cause of the accident. But it is legally impossible to prove medical malpractice in Ohio without such expert testimony.
The key to any medical malpractice case is establishing the standard of care. This is a broad term that refers to the level of medical care that a health care professional of reasonable skill and competence would provide under the circumstances of a given case.

In court, a medical malpractice victim must be able to prove three things related to standard of care:

• that the standard of care existed within the applicable medical community;
• that the standard was breached by the defendant; and
• that the breach was the “proximate cause” of the victim’s injuries.

Typically, the plaintiff needs at least one expert witness to establish these things. For example, if your baby sustained a birth injury due to a negligent delivery, you will need an expert who can establish the standard of care for obstetrics, identify specific acts by the defendant that deviated from that standard, and connect those deviations to the birth injury. The expert will need to have experience in the obstetrics specialty. The court would not accept testimony from, say, an oncologist.

Will “Informed Consent” Defeat My Malpractice Claim?

Hospitals and doctors often try to prevent medical malpractice lawsuits by claiming the patient knowingly accepted the risks of treatment. Doctors often require that patients sign consent forms that purport to disclose all the potential complications that may arise during a procedure. If something then goes wrong, the doctor and the hospital will claim the patient gave “informed consent,” thereby absolving them of any legal liability.
In fact, that is not how the law works. A patient cannot consent to negligent acts. And a physician or other health care provider cannot ignore the appropriate standard of care just because the patient signed a piece of paper.

How Much Is My Malpractice Claim Worth?

Like any personal injury lawsuit, a medical malpractice plaintiff can recover the full amount of their economic losses. This requires they stem from a health care provider’s negligence. These “economic losses” include:

• the cost of medical care (to correct the defendant’s mistakes),
• lost wages for the time the plaintiff is unable to work, and
• other related out-of-pocket expenses.

A plaintiff may also seek noneconomic damages. This is an award related not to any quantifiable losses but the victim’s pain and suffering because of the defendant’s malpractice. As a result of intense lobbying by medical industry groups a number of states, including Ohio, limit the amount of noneconomic damages a person may receive.
Ohio’s law regarding noneconomic damages is complicated. Here is a basic rundown:

• For a single plaintiff in a medical malpractice case, noneconomic damages cannot exceed $250,000 or three times the amount of economic damages awarded, whichever is higher, to a maximum of $350,000. If a jury awards the plaintiff $100,000 in economic damages it can also award up to $300,000 in noneconomic damages.
• The same rules applied if there are multiple plaintiffs to a medical malpractice lawsuit arising from the same occurrence. However, the absolute cap on noneconomic damages is $500,000 rather than $350,000.
• In cases where the victim has suffered a catastrophic injury–i.e., permanent disability or loss of a bodily organ–total noneconomic damages may go as high as $500,000 for an individual plaintiff and $1 million for multiple plaintiffs.
• The damage caps do not apply to wrongful death claims.

How Long Do I Have to File a Malpractice Lawsuit?

Even if you have a well-documented medical malpractice claim–including expert testimony and proof of your losses–it will not matter if you do not meet certain legally imposed deadlines. All lawsuits are subject to a statute of limitations. In malpractice cases, Ohio law imposes a one-year deadline starting from the date the alleged malpractice occurred.
There are, however, exceptions to this rule. First, if you give the doctor or hospital written notice of your intent to bring a malpractice claim before the one-year deadline expires, the law gives you an additional 180 days (six months) to file your lawsuit. The written notice, though, must meet certain criteria and is more complex than it sounds.
Second, if a physician continues to treat the patient for the condition at issue, the one-year deadline does not start until the termination of the physician-patient relationship. Third, if you do not discover the injury until sometime after the malpractice occurred, the deadline starts as discovery. However, regardless of when you knew about the injury, you must file a malpractice lawsuit within four years of the original act.

Do You Need Help from a Cleveland Medical Malpractice Attorney?

As you can see from this brief overview, a medical malpractice lawsuit involves a lot of moving legal parts. This is not something you can handle on your own. If you have been the victim of a physician’s negligence and need help from an experienced Cleveland medical malpractice lawyer in assessing your claim, contact the offices of Tittle & Perlmuter today to schedule a free consultation.