Hospitals and clinics can become busy at times, and doctors may see a lot of patients during these busy periods. A few healthcare providers might make a mistake for various reasons. Multiple situations count as medical malpractice, and an error can worsen a patient’s condition.
Some victims of negligence feel unsure if they can receive compensation. Others want to start a lawsuit but do not know the right time to start. You should contact a lawyer who can answer questions about your case and explain your legal options for pursuing compensation.
When Should You Sue for Malpractice?
You should sue for medical malpractice as soon as you realize that you sustained injuries. You can get compensation quicker, and you have a legal incentive to do so. Some states have different deadlines for medical malpractice lawsuits.
Victims in San Antonio have two years after the date of the malpractice to file a claim. However, you might require ongoing treatment. In this case, the deadline ends two years after the last day of treatment.
Some places have exemptions to extend the deadline. Texas has specific laws that apply to injured minors, as well. You should speak with a San Antonio medical malpractice lawyer to learn how the statute of limitations applies to you and when you should initiate your claim given your specific circumstances.
How Do You Know When to File a Lawsuit?
If your case meets four specific elements, then you should file a claim pursuing compensation for the full cost of your injuries. Some people refer to these elements as the “four Ds of medical malpractice.” The elements include: (1) duty, (2) dereliction, (3) direct cause, and (4) damages. You have to prove each one to get compensation.
In each case, the person has to show that a doctor-patient relationship existed. As a result, the doctor had a duty of care. Dereliction means the healthcare professional deviated from the standard of care; the substandard care directly caused your injuries; and the injuries led to damages.
If you can establish all four elements in your case, you should likely consider filing a claim. A lawyer can help you determine the best course of action in this situation.
Medical Malpractice Lawsuit Timeline
Filing the Complaint
In general, the process starts when you file a medical malpractice lawsuit, and the initial document is called a complaint. The complaint describes the compensation you seek and why you qualify for that amount of compensation. Your complaint will also identify the defendant(s) from whom you seek compensation.
The case usually goes through each phase of the process. If your lawsuit goes to trial, it could take anywhere from a year to three years.
Specific Pre-Trial Procedures
Some states have specific pre-trial procedures. San Antonio residents have to send a written notice of the claim to the healthcare provider at least 60 days before filing a case. An injured person must give an authorization form for the release of protected health information.
In some places, you must submit a Certificate of Merit with your complaint. Claimants in Texas have to send a similar document, called an expert report. The expert report includes the opinion of a qualified medical professional regarding the incident of malpractice.
The document summarizes how the defendant failed to meet his or her duty of care as well. You have 120 days to submit the expert report after you file the lawsuit. The deadline may not seem like enough time, but an attorney can help you get everything done before then.
The Discovery Period
As the case progresses, you and your attorney will work on the discovery phase. The lawyers of each side investigate one another’s legal claims and defenses. Discovery generally involves sending questions, or interrogatories, and document requests.
You may have seen people sit down for depositions on television. Depositions occur during the discovery period, and they involve the plaintiff, the defendant, and any witnesses. Both parties may frequently seek the judge for help as well.
The discovery phase generally constitutes the longest part of a medical malpractice lawsuit. The court’s deadlines can influence how long the case takes to move on to the next step.
Mediation and Negotiation
A majority of claims end with mediation and negotiation. Most victims benefit when their cases end in a negotiation, as settlements often provide significant compensation without the stress involved in litigation.
Sometimes, the two lawyers from each party can agree without involving the court. However, the injured person, the defendant, and their lawyers might attend mediation together. A mediator joins them to help settle the case. If the claim proves successful, you can get your compensation in the form of either a lump sum or a structured settlement.
In a few cases, a claim does not end in mediation. One or both sides might struggle to agree on the settlement. As a result, everyone meets in the courtroom for a trial. Research has found how only 7 percent of medical malpractice cases made it to the courtroom.
The lawsuit process becomes longer due to reliance on the court’s schedule. The judge might reschedule your case once or twice.
The outcome of trials can prove unpredictable, and you could end up with no compensation. Around 21 percent of plaintiffs win at trial.
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When Should You Hire an Attorney?
Medical errors constitute a common issue in the U.S., and more than 250,000 people die due to them annually. Medical errors may result from an incompetent doctor, systematic problems, or a lack of a safety net. Negligence could have caused patients harm in a few cases.
If you believe your injuries stem from medical malpractice, speak with an attorney immediately. An attorney can contact the negligent parties if he or she finds substantial evidence of malpractice.
You will want to hire a lawyer early on to ensure that you submit the necessary documents on time. Your attorney will know what pre-trial procedures you have to complete to avoid a failed lawsuit.
Can You Make a Claim Without a Lawyer?
Not every personal injury case continues with a lawyer. Some people choose to pursue a lawsuit on their own due to concerns over attorney fees. Other victims have a straightforward case, and the negligence may prove easy to establish. Usually, the injuries are minor as well.
In the end, you do have the option not to hire a lawyer. Most states require courts to treat people who represent themselves as competent attorneys. Without legal knowledge and experience, you may miss out on certain avenues of compensation.
However, medical malpractice cases tend to prove complex. You need to serve the expert report and other necessary documents on time. When you file documents, you do so with the clerk of court. Usually, you have to pay a filing fee every time.
You have to stay on top of all the deadlines while you manage personal affairs. A medical malpractice attorney makes the lawsuit less stressful on your end. Retaining an attorney will save you time, and you can use that extra time to focus on your recovery.
Damage Caps in Medical Malpractice Cases
Some states set a maximum amount you can get from certain personal injury cases. The types of damages and the limits vary based on the jurisdiction. Texas only places caps on non-economic damages in medical malpractice lawsuits.
Pain and suffering, anxiety, and loss of companionship all count as non-economic damages. The court tries to calculate these damages as accurately as possible, but courts cannot go over the legal limit.
When you file a claim against a single health care provider, the cap is $250,000 per injured patient. The limit increases to $500,000 per injured person if your case involves multiple defendants.
For lost wages and other economic damages, compensation has no caps.
Are Lawyers Worth the Cost?
The fees and costs of a medical malpractice attorney may make someone hesitate to hire one. Usually, the fees are much smaller than medical expenses, and an attorney can help you save money in the end.
Lawyers make the process more efficient and handle most of the work. You can focus on your health and can return to work quickly. If you pursue a lawsuit by yourself, you might end up with less time for your job to meet specific deadlines.
Another reason why attorneys prove cost-effective involves their ability to negotiate a larger settlement compared to pro se litigants. The claim payout will likely reach much higher values for people with legal representation than those without any.
Medical malpractice lawyers know how much compensation to seek given your specific circumstances. Insurance companies do not like to pay a lot of money. They may attempt to offer a lower amount instead, and a firm can prevent this from happening.
Additionally, lawyers can benefit you if your case does go to trial. The odds may stack against you, but you have a higher chance of successfully recovering compensation with an attorney by your side.
Different Types of Attorney Fees
Various lawyers offer different types of fees. Some lawyers use an hourly fee structure. As the name indicates, a firm would charge a certain amount of money per hour. The dollar amount depends on the type of case and the area. Some charge $100 an hour, and others charge $200.
Many attorneys use a retainer fee structure if they deal with high volumes of a particular type of case. You would pay a fixed amount of money for a firm’s services. Most flat fees cover relatively simple cases, and medical malpractice lawsuits typically prove complex.
When you hire an attorney, you might pay a retainer fee. Retainer fees are similar to a deposit, and a lawyer deducts costs of service from the amount you paid as they accumulate. If your costs exceed your retainer fee, you will need to pay additional fees.
If an attorney refers you to another firm, the attorney might request a portion of the fee you pay for the claim. This constitutes a referral fee, and state codes may prohibit one unless it meets specific criteria.
Many people use a contingency fee, which constitutes a portion of the settlement amount. They may adjust the number depending on how long the case continues and might lower the percentage if they can settle the lawsuit before it goes to trial.
Several people worry they will recover less compensation with contingency fees. You will usually recover more, even after you pay a lawyer.
Options for People Who Cannot Afford an Attorney
People have a few options if they cannot afford a lawyer. For example, many law schools provide low-income individuals with free legal services. Many law schools have pro bono programs, and pro bono means attorneys do not receive money for their services. Law students can offer free legal advice, as well.
Nonprofit organizations offer either pro bono work or low-cost services, as well. People also refer to these organizations as legal aid societies, and they exist throughout the country. Generally, a person has to meet a specific income threshold to qualify for legal aid.
Many firms offer consultations for free, and you can have one by phone or a videoconference. You can get a better idea of what to prepare for and the direction you should take.
You can contact multiple entities for advice or assistance. Some people go to the local courthouse for information on who to see. A few people call their county or state bar association. On specific days and times, these organizations can answer legal questions for free by phone.
After speaking to various attorneys and law students, you might find a lawyer who will work with you on an affordable budget.