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Monday, November 13, 2017

Medical Malpractice Can Be A Lengthy Process

Most people are familiar with the term medical malpractice. It seems simple enough. A health care professional makes a mistake that injures a patient, and the patient receives compensation for that injury. However, it’s far from simple. In North Carolina, there are a number of laws in place that treat medical malpractice lawsuits differently than the typical negligence lawsuit, and that make the process highly complex, expensive, and time consuming.  It is almost impossible to pursue a medical malpractice claim without the guidance of an experienced medical malpractice attorney.

The very first thing you or your accident attorney must do is obtain all the victim’s medical records, including past records not even related to the treatment in dispute, such as primary care records and pharmacy records. Those records are first reviewed by the attorney to determine if there might be a provable case. If the attorney determines that further investigation is warranted, the records must then be reviewed by a qualified medical expert, usually a physician with experience in the same specialty as the target physician or clinic. Such experts can be hard to find and they charge for their time. This part of the review process can be time-consuming and expensive.

Your expert must be reasonably certain, and willing to so testify in a trial, that the target physician “breached the professional standard of care,” that is, that he or she did something (or failed to do something) that a reasonably prudent skilled professional would not have done (or would have done) in the same or similar circumstances.

North Carolina law also requires that the expert be familiar with the medical standards and practices within communities similar to the community where the malpractice occurred. The theory is that standards in small rural communities and hospitals, with less sophisticated equipment, might be different than in large urban centers with access to cutting edge technology. The reasoning behind this requirement is no longer supported by the facts on the ground. The United States is fortunate to have national accreditation standards so that physicians in small communities have access to the same training, information and technologies as those in large communities. Nevertheless, it remains the law in North Carolina.

Also, because pursuit of a medical malpractice claim can be very expensive, the kind of injury sustained is an important consideration in deciding whether to pursue the claim. The potential settlement or judgment value for minor injuries simply will not support the time, effort, and cost involved in pursuing a medical malpractice lawsuit.

If your claim survives this initial and thorough vetting process, your attorney will usually have to file a lawsuit. Very few medical malpractice claims are settled without litigation.  Doctors, hospitals, and clinics don’t like to admit mistakes. Through the litigation process comes the discovery phase. This is where both sides are required to show their evidence to the other side, including documents, records and even deposition testimony of witnesses and experts.

The discovery stage is no short and simple process. It can last years and cost a small fortune. The goal of discovery is to determine whether, when push comes to shove, the plaintiff (you) can prove that the target physician failed to deliver the appropriate standard of care, and whether that failure resulted in an injury to the plaintiff.

If the plaintiff’s attorney, through the discovery process, can convince the target physician’s insurer and defense attorney that they risk an adverse verdict if they proceed to trial, then settlement discussions might follow. Many medical malpractice cases are settled through the negotiation process, but usually only after litigation discovery is complete. However, for a variety of reasons, some medical providers refuse to settle and are willing to take their chances in trial, even when the plaintiff has a strong and winnable case.

If it does not settle, the case would then go to trial before a jury. Medical malpractice trials can last weeks or even months, and the evidence presented is usually highly technical and quite boring to everyone except those with a stake in the outcome. An actual trial would be only a minor fraction of the overall time spent because a medical malpractice claim is almost always a very lengthy, years-long process.

If you or a loved one has fallen victim to medical malpractice, contact Hefferon & Hefferon P.A., Attorneys at Law. You will need an experienced medical malpractice attorney to see your case through to the end.

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