It can be frustrating for parents to navigate the complex legal world of medical malpractice. So much depends on the results of a medical malpractice case—a victory will help an injured child to live up to his full potential. For parents who must regiment every day of their lives to care for their child, giving control of the future to a team of lawyers is undoubtedly frightening.
Parents who are informed about the legal process are better able to assist in the prosecution of their child’s claim and will be able to focus on their child’s everyday needs. Consider this to be Medical Malpractice 101.
Elements of a Medical Malpractice Case
Medical malpractice cases have the same elements as other personal injury cases. These types of cases are called “torts,” which is a word that means a private or civil wrong or injury. There are four elements to every tort:
In order for a person or corporation to be legally responsible for an injury, there must be a duty. In most medical malpractice cases the existence of a duty is the simplest element to prove: when a doctor treats a pregnant mother, for example, he has a duty to the mother, the unborn child, and toward the father. A hospital has the same duty when its employees (for example, nurses) treat or care for a pregnant mother.
The specific nature of the duty often referred to as the “standard of care,” is more difficult to prove. It depends on the role of the health care provider, but it is generally phrased as “an obligation to use the care and skill expected of a reasonably competent health care provider under similar circumstances.” This basically means that nurses must provide the same level of care expected of other nurses, and doctors must use the same level of care expected of other doctors.
Sometimes the location of the care makes a difference—a doctor in a state-of-the-art hospital, with access to the best technology and testing equipment, may have different obligations than a doctor in an extremely rural hospital who is working without those amenities. Typically, though, doctors are trained uniformly throughout the United States, and they have the same obligations no matter where they practice.
Breach of Duty
Often simply referred to as “negligence,” a health care provider must violate his duty before he is responsible for a resulting injury. Sometimes this is difficult to prove, and sometimes it is simple to prove. Once a jury understands the exact scope of the duty, the jury can examine what the health care provider did or didn’t do, and decide whether it complied with the “standard of care.”
If the breach of duty caused an injury, the health care provider will be held responsible for that injury. In medical malpractice lawsuits, it is not enough that a tragic outcome results, or that a patient suffers injury. Some injuries, unfortunately, happen without medical malpractice, and without a breach of duty. Some injuries are recognized risks.
However, when a health care provider violates his duty and the patient is injured because of that violation, the causation element is satisfied.
According to data provided by the medical malpractice attorneys at Power Rogers, the six most common types of medical malpractice in the U.S. are diagnostic errors, surgical errors, treatment errors, birth errors, medication errors, and monitoring errors.
The final element is damages. A health care provider may breach a duty, but he is only responsible for the damages that he caused. In some cases, a doctor may act negligently, but fortunately, the patient suffers no injury. The law does not allow for medical malpractice cases to be won without some injury. Damages include things that are easy to calculate, like past medical bills and funeral expenses. Damages also include things that can be harder to calculate, like future medical expenses, loss of earnings, pain, suffering, embarrassment, mental anguish, and inconvenience.
Steps in a Birth Injury Malpractice Case
Every state has a different process for filing a medical malpractice case. Our firm has experience practicing in many states across the country, and we work with local lawyers to prove birth injury claims. The local lawyers provide knowledge about the specific court requirements, and we provide the experience in handling medical malpractice cases. Most medical malpractice cases follow these steps:
Serious birth injury cases may take between six months and a year to properly research and investigate. We have filed cases on extremely short notice, but it is best to allow enough time to investigate so that the case starts off on the right foot (see When You Should Take Action). The investigation process requires an interview of family members about the pregnancy, labor and delivery, and a description of the child’s injuries. The lawyers will obtain the appropriate medical records and will review them.
If the medical records and the interview together indicate that medical malpractice occurred, the lawyers will contact various experts (often in obstetrics, pediatric neurology, neonatology, pathology, and others) to verify the elements of a medical malpractice claim. If those experts agree, some of them may be asked to write reports of their conclusions.
A lawsuit (complaint) will then be filed according to the requirements of the appropriate state. Some states require expert certificates and reports to be filed alongside the complaint. The complaint and other documents are then served on the negligent health care providers, who usually have between 30 and 60 days to respond to the complaint. Most health care providers will turn those papers over to their insurance companies, who will then hire a defense lawyer.
After the response to the complaint, the parties will begin discovery. Discovery can involve written documents, like interrogatories (questions to the parties), and requests for documents. It can also include depositions, which are verbal questions asked under oath. Typically, most cases start with written discovery, move to depositions of parties and fact witnesses, and then proceed with depositions of experts.
After discovery is completed, the parties may file motions. Sometimes, a party might feel that they should win the case without a trial, and the evidence requires a finding that they are right. That party would then file a motion for summary judgment. A court might decide those motions on the written papers or might ask for a hearing where the lawyers can argue their positions.
A trial in a birth injury case often lasts between one and five weeks. The parents should be there every day. The lawyers will first choose the people who make up the jury in a process called voir dire. Then, the plaintiff’s lawyer will give an opening statement to describe what the case is about. The defense lawyer will then give an opening statement of his own.
After opening statements, the plaintiff’s lawyer will present his case. This will usually include asking the parent or parents to testify and having the experts explain to the jury what went wrong and how the child was injured. Then, the defense lawyer will have his turn to present his version of events.
After each side closes their case, the lawyers will each have a chance to offer closing arguments. This will allow the lawyers to highlight evidence in their favor and give them one last chance to persuade the jury that they are right and that the case should be decided in their favor. The jury will retire to their jury room and will decide on a verdict.
After the jury verdict is read to the court, the parties will have an opportunity to make post-trial motions. These can include many things, but often include an argument by the losing side that the jury’s verdict was wrong and should be overturned. The judge will rule on those motions, and the parties will have an opportunity to appeal the case to a higher court. Some cases can be appealed multiple times, and can even be remanded back for a new trial. The parties will have the opportunity to settle the case during this sometimes-lengthy process. Otherwise, the case will resolve either on appeal or at a new trial.
Our lawyers have experience handling birth injury cases across the United States. We have the expertise necessary to read and understand the medical records that will prove your case, and we work with top-notch experts all over the country. If you believe that your child has been the victim of medical malpractice, contact our lawyers at (440) 252-4399 or online.