Medical Malpractice Claims
We know that it is not easy to make a decision to look into a possible medical malpractice lawsuit. The law firm of Thompson O’Neil, P.C has the experience, the expertise, and the resources to help you with your decision and to stand by you throughout the legal process. We will consult with you and help you evaluate your potential claims at no charge.
What is Medical Malpractice?
If you or your loved one has suffered injury because a physician, nurse, hospital, or HMO failed to provide care meeting the standards that a medical care provider is expected to meet, you may file a medical malpractice lawsuit. Medical negligence can be one of many things. It might be a medication error – the wrong choice of drug or the wrong dosage, for example. Or, it might involve a failure to diagnose a life-threatening disease or a mistaken diagnosis. Medical negligence may also be a mistake in surgery or in other medical care. Everyone, from infants in utero to seniors at home or in a care facility, is vulnerable to medical negligence.
To be liable for medical malpractice, a doctor, a nurse, or a hospital employing the professional must have been responsible to care for the patient and the doctor’s or care provider’s negligence must have caused injury.
It’s important that you know that there are strict time limitations that apply to medical malpractice actions. If you fail to file suit within those time limits, you will forever lose your right to recover damages for injury. Michigan law also requires strict adherence to other procedures. You should retain a lawyer who specializes in personal injury law and in medical malpractice cases in order to be sure that your rights aren’t lost because one of the rules of practice was ignored.
Types of Medical Malpractice
Medicine is a complicated matter, obviously. There are a great many things that can go right when you or your loved one gets treatment for an illness or injury. Unfortunately, there are also a great many things that can go wrong. A recent report released by the Institute of Medicine reveals that between 44,000 to 98,000 persons each year die as a result of medical errors. Mistakes in prescribing medicine alone account for the death of up to 7,000 people a year. Medical error causes nearly as many deaths every year as traffic accidents (43,450) or breast cancer (42,300). Serious medical mistakes cause significant injuries including lifetime disability, disfigurement, brain injury, amputation, and birth trauma. Nevertheless, medical malpractice is about more than numbers – dollars or statistics; when it occurs, medical error takes a heavy toll on the lives of victims and their families.
Common examples of medical malpractice include the following:
- Medication Error: This could be any one of a number of types of errors. Commonly the error is prescribing the wrong drug (wrong drug for the particular patient) or the wrong dosage. Medication errors also occur when a doctor fails to adjust medications to accommodate weakened kidney function. Failure to recognize an adverse drug reaction can also cause injury. Sometimes, a doctor may fail to prescribe appropriate medication when a patient has been seen and reported symptoms indicating that treatment is required.
- Errors in Surgery: Sometimes, a surgeon may operate in the wrong area, may perform the wrong surgical procedure, or may leave a foreign substance (a sponge or a surgical instrument, for example) inside the body.
- Failure to Diagnose: Sometimes a problem may be undiagnosed after a patient has been seen by the doctor and has reported symptoms, causing complications or death
- Misdiagnosis of a Problem or Illness: Sometimes a problem may be misdiagnosed after a patient has been seen by the doctor and has reported symptoms, causing complications or death.
How To Determine if you have a Medical Malpractice Claim?
There are a couple of steps you will need to take if you believe that you or a loved one has suffered from medical malpractice. You will need to do the following:
- Obtain a copy of all relevant medical records
- Prepare a time line showing when injuries were first discovered and/or treated and what happened next
- Review your case with a medical malpractice lawyer who is trained to recognize medical negligence
- Document and file your medical malpractice lawsuit in a timely manner to avoid losing your right to sue because a statute of limitations operates to bar your claims
You can discuss your concerns without charge and without obligation with one of our medical malpractice lawyers if you suspect medical negligence. Something you have thought was just poor treatment might be recognized as medical negligence by a lawyer who is experienced and knowledgeable about medical "standards of practice." Lawyers with expertise in medical negligence law can also help you evaluate your potential for damages.
In Michigan, there are two kinds of damages in a medical malpractice case:
(a) non-economic damages, such as pain and suffering. If the patient has died, damages can also be claimed by family members for loss of society and companionship.
(b) economic damages, such as medical expenses and/or loss of earning capacity.
Laws were passed by the Michigan State Legislature in 1993 limiting the amount of non-economic damages that can be obtained in a medical malpractice lawsuit. These limitations are called "caps." Economic losses in a medical malpractice lawsuit are not, however, subject to any limitations or "caps."
Time Limits for Filing a Medical Malpractice Lawsuit
All medical malpractice cases seeking damages for personal injuries arising out of medical negligence must be filed within a certain period of time established by the State Legislature. The time limits are called the Statute of Limitations. In Michigan, a Notice of Claim must be filed first, and there are strict time limits for filing. In general, you have two years from the date the medical malpractice occurred within which to file a medical malpractice lawsuit or, more precisely, to file your Notice of Claim. Because it takes time to properly examine your medical records and to evaluate your claim, it is important for you to consult a medical malpractice attorney as soon as possible if you believe medical malpractice has occurred. At Thompson, O’Neil & VanderVeen. P.C. our attorneys see many cases where patients or families have come to us too late. The sad thing is that many of these people had a perfectly legitimate and meritorious medical negligence lawsuit. If you don’t act to protect your rights in a timely manner, however, your claim will be barred forever.
There are a few exceptions to Michigan law that gives additional time after the two year period has expired. However, these exceptions are only applicable under special circumstances. If, for example, a patient "discovers" the medical negligence after two or more years have passed, the patient has six months from the date of discovery to file a medical malpractice lawsuit or Notice of Claim. Suppose, for example, that four years after surgery because of a routine x-ray a patient discovers that a foreign object such as a sponge was left in the abdomen. The patient still has the right to file a lawsuit, as long as that lawsuit or the Notice of Claim is filed within six months after the discovery of the sponge.
Don’t be complacent, though. Six months is really not a very long time. Our attorneys see many patients who had legitimate medical malpractice claims that have lapsed because the six month period has expired.
A common instance of this is where a doctor has missed or delayed a diagnosis of cancer. Once the patient learns that the cancer was missed, the six month period starts to run in most instances. Because we are willing to consult with you and help you evaluate your claim without charge, you have nothing to lose by consulting us without delay. Our advice to you is, "Don't wait"!
Medical malpractice can cause the death of a loved one. If a patient dies as a result of medical malpractice, the Wrongful Death Act allows family members to file a lawsuit. The time limits that apply to other medical malpractice cases don’t apply to wrongful death cases. The laws are complicated, but generally there is a longer period of time within which a claim or Notice of Claim can be filed. You should keep in mind, however, that the statute of limitations starts to run the moment that a personal representative has been appointed for the estate of the loved one in probate court. Then, the statute of limitations will expire not later than two years from the date of first appointment. Loved ones may not be aware of a potential medical malpractice claim at the time a probate estate is opened. They may only be worried about handling the property and affairs of the estate. But all that time, the statute of limitations is running nevertheless! If you have any concerns that your loved one died as a result of medical malpractice and a probate estate has been opened, you should promptly consult medical malpractice attorneys.
Can Any Lawyer Handle My Medical Malpractice Case?
There are several reasons why you should consult a specialist to handle your medical malpractice case.
Attorneys who handle medical malpractice cases need to have a vast amount of knowledge of physician and hospital practices. They also need experience in handling complicated discovery and litigation issues. A medical malpractice case is very dependent upon the facts that your lawyer can find to support your claim. Knowing what to look for in medical records and knowing how to interpret tests and exams that the patient has had help the lawyer to understand and to prepare your case. Everything depends upon the facts your lawyer can learn from you about what happened, when it happened, and what the consequences were. Your lawyer also learns facts from reviewing your detailed medical records, and from specialists your lawyer will hire to help document and support your case. Medical malpractice attorneys understand what to look for in medical records and how to interpret what they say.
The filing of a medical malpractice case was made much more difficult in 1993 by "Tort Reform" laws passed by the Michigan State Legislature.
Complicated procedures must be strictly complied with or the patient’s malpractice case will be dismissed by the court. Before filing a Complaint, patients are required to file a Notice of Intent (see below).
An Affidavit of Merit (see below) signed by an expert who meets precise criteria must be filed at the same time as the Complaint. Dealing with these complexities and meeting the requirements of these laws is something you will want to leave in the hands of capable, experienced specialists – lawyers who practice medical malpractice litigation.
Substantial resources are need to successfully litigate a medical malpractice lawsuit. Most injured patients lack the financial resources to advance the out-of-pocket expenses that are needed during the two or more years it takes to get your case to trial. Experienced medical malpractice lawyers know which expert witnesses are qualified to support your claims. They also know the kinds of defenses the attorneys for doctors and hospitals will raise and are prepared to deal with them. The law firm of Thompson, O’Neil & VanderVeen. P.C. has the resources to advance your costs during litigation and to help you and your family withstand the litigation process. We have specialized in helping injured clients for more than twenty years.
Notice of Intent
The tort reform laws passed in 1993 in Michigan require that injured persons file a "Notice of Intent to File a Medical Malpractice Claim" as a pre-condition to filing a complaint or lawsuit. In general, this Notice must be filed six months before the medical malpractice lawsuit can be filed. An automatic waiting period results from the Notice. The intent of the Legislature was that the parties would use this time to discuss the case to see if it can be resolved before a lawsuit is filed. Unfortunately, few cases are settled during this waiting period, and the law has merely slowed everything down for an extra six months.
The law requires the Notice of Intent to meet a number of specific criteria. You could lose your right to file a lawsuit if you don’t follow the right procedures. This is another reason why you need to consult with medical malpractice lawyers. Under certain circumstances, the statute of limitations might be extended by the filing of a Notice.
Affidavit of Merit
The Tort Reform Act of 1993 also requires people to file a special document – an Affidavit of Merit – with the complaint for malpractice when starting the lawsuit. The requirements for this affidavit must be strictly observed. A healthcare professional, such as a doctor or nurse, who specializes in the same field as the healthcare provider whose conduct is challenged as negligent must sign the Affidavit of Merit. For example, if the claim is against a doctor who is a board certified specialist in oncology, then the plaintiff’s lawyer must produce an Affidavit from a board certified specialist in oncology that tells in detail why the medical malpractice claim is meritorious.
If your lawsuit is against more than one professional, then your lawyer must file an Affidavit of Merit from a suitable expert with respect to each specialty.
Medical Malpractice Investigation
First, certain documents will need to be signed. One of those is a fee agreement, which will be discussed below. The fee agreement establishes your attorney-client relationship. You will also be asked to sign medical release forms by your medical malpractice attorneys. These forms will permit your lawyers to obtain all pertinent records. If the lawsuit involves wrongful death, medical malpractice attorneys will need to start an estate in probate court if that has not already occurred. They will have the court appoint a family member as a personal representative to obtain records from the healthcare providers. (As we pointed out above, the statute of limitations starts to run on the date of appointment and will expire in two years.)
Your medical malpractice case is fact-driven. Therefore, the most important things in the medical malpractice investigation are a thorough discussion of why the patient thinks he or she has a lawsuit and a review of all of the patient's pertinent medical records, including x-rays or other ests and reports that might be significant to the lawsuit. You can help your lawyers by making a time-line to show exactly what happened when. Your experienced medical malpractice attorneys will carefully evaluate which records should be ordered and reviewed in order to fully investigate your claims.
Most of the time plaintiff medical malpractice attorneys are compensated on a contingent fee basis. This means that if there is no recovery, then the attorney takes no fee. A contingent fee agreement must be in writing. It will carefully spell out the attorney’s fees and charges, which will be related to the amount of damaged recovered. The standard percentage arrangement is one-third of the net recovery. What this means is that the costs of the litigation are subtracted from the money damages recovered, either as a result of a judgment or a settlement, and then, out of what is left, the attorney gets one third and you and your family recover two thirds. The Michigan Rules of Professional Conduct regard one third to be an equitable rate.
Time To Resolve Lawsuit
First the Notice of Intent is filed. Then you and your medical malpractice attorney must wait six months before the Complaint can be filed. After the Complaint has been filed and served, the defendant has a certain period of time within which to answer the Complaint. Once an Answer is filed, then the parties begin what is called "pre-trial discovery."
During pre-trial discovery, the parties exchange information. This gives the plaintiff a chance to learn more about what really happened. It gives the defendant a chance to learn more about the plaintiff and the plaintiff’s claim. Depositions of key witnesses and parties will be taken during this period. A deposition is used to obtain testimony under oath about important issues in the case.
Documents and records will also be exchanged. The medical malpractice attorneys for each party will ask for documents that will support the claims of the plaintiff. Once the medical malpractice attorneys have learned about your claims, then depositions of expert witnesses will be scheduled. These give the plaintiff’s attorneys the opportunity to learn more about the defendant’s defenses and they give the defendant’s lawyers a change to learn more of the details of the plaintiff’s claim and the expert authority upon which the plaintiff is relying.
Medical malpractice cases take some time to prepare. Because of the busy schedules of medical malpractice attorneys and of the doctors who serve as expert witnesses, it can take weeks or longer to find a time that is convenient for everyone involved to meet for a deposition.
The minimum length of time, from the filing of a Complaint until the first trial date, is about two years. Although some judges move cases along fairly quickly, other judges are much slower. Discovery will usually continue during this lengthy period and a potential settlement may be discussed by the parties.
Case Evaluation. The Court Rules require a procedure called "Case Evaluation," and this usually takes place about 18 months after the Complaint has been filed. Case Evaluation is an effort by the Court to help the parties settle the case. A panel of attorneys briefly review the facts and merits of the case. They give each side an advisory opinion on its settlement value.
While Case Evaluation makes sense in a lot of personal injury claims, that is not particularly true in medical malpractice cases. Usually, case evaluation panels do not include attorneys experienced in medical malpractice cases. Unfortunately, the Court Rules require case evaluation. Your lawyer will discuss this with you when the time arrives for case evaluation.
"Mediation" or "Facilitation" is another settlement procedure allowed by the Court Rules. This procedure is not mandatory like Case Evaluation. It is commonly used in medical malpractice cases. It will seem to you a little like shuttle diplomacy, with the mediator or facilitator meeting most of the time with one side or the other. The mediator or facilitator is sometimes a retired judge. Sometimes, though, he or she is a highly respected and experienced attorney with no connection to the case. The mediator tries for a period of several hours or longer to see if the case can be settled.
Most medical malpractice cases are settled before trial. Some cases, however, must be tried by jury. The lawyers at Thompson, O’Neil prepare all cases as if they will be tried before a jury. This preparation and this focus substantially increases the likelihood of a favorable settlement. You can be certain that the experienced medical malpractice trial lawyers in our law firm will aggressively prepare your case for trial and that we will use the substantial resources and expertise of the firm in presenting your case.
Thompson O'Neil Law Firm located in Northern Michigan, Traverse City. Attorneys who specialize in personal injury, insurance disputes, employment rights, civil litagation and more.