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What is medical malpractice?
Medical malpractice generally refers to treatment or the lack of treatment by a health care provider that deviates from the accepted standard of care and which causes harm or injury to a patient. Medical malpractice results from misdiagnosis, failure to treat, delay in treatment, failure to perform the appropriate procedure or surgery, failure to prescribe the appropriate medicine, failure to perform the appropriate follow-up care, and failure to refer a patient to an appropriate -ADVISOR.
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What are the elements of a medical malpractice case?
Generally a claimant must show the following:
- The health care provider owed a duty to the patient.
- The health care provider breached that duty or deviated from the accepted standard of care.
- The patient suffered an injury as a result of or as a proximate cause of the deviation from the accepted standard of care. If there is no injury a claimant generally has not right to recover damages.
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How do I obtain my medical records?
State law allows a patient the legal right to obtain copies of their medical records. Typically, a patient must give the medical provider a signed authorization or request before they will be able to obtain the records. State law provides for minimum and maximum charges for medical records that are obtained from in-state health care providers. In those instances where a family member is obtaining medical records of a deceased family member, they will have to have the legal power to do so which may necessitate letters from a county surrogate's office. A qualified medical malpractice attorney will be able to assist you in obtaining medical records.
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What's the medical malpractice “standard of care”?
Often state law determines how negligence is defined, however, the “standard of care” of a medical professional is generally defined by the medical community. The issue is whether any reasonable physician could have done what the doctor or health provider in question did, based on the specific facts of the case. Part of what helps define the “standard of care” and acceptable practice can come from medical experts, medical texts, literature, journal articles and publications from medical groups or associations.
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What is informed consent?
Before a doctor is going to perform a procedure, they are required to advise the patient of the procedure that is going to be performed as well as all of the possible consequences, both good and bad. This is referred to as “informed consent.” If the doctor does not adequately inform the patient prior to a procedure and an injury arises from an undescribed risk of the procedure there may be a medical malpractice case. However, informed consent cases have other burdens or issues as well and a thorough evaluation by a qualified attorney is necessary to determine if in fact an informed consent case does exist.
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What are the first steps involved in pursuing a medical malpractice claim?
Often the first step in pursuing a medical malpractice case is the realization that something has gone horribly wrong. A bad result is not necessarily malpractice, but often potential claimants realize that something happened that should not have happened if the appropriate care had been given. In such a case, potential claimants should consult an attorney experienced in medical malpractice litigation who can assist in determining whether or not there was medical malpractice or negligence.
In order to analyze a case, medical records and other information will be obtained and often health care experts such as physicians are consulted. Written notice may then be given to the individuals or entities that allegedly committed the medical malpractice. A claim may then be filed in court to commence a lawsuit.
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What are the other steps involved in a medical malpractice claim?
In the State of New Jersey an affidavit of merit from a health care provider that affirms that a case has merit is usually necessary in a medical malpractice action and must be obtained within time limits subscribed by statute (state law). In addition, in some instances, certain government entities and/or employees have to be given a Notice of Claim or notice that a claim may be filed against them, which must also be done within time limits subscribed by statute. And, the complaint itself must be filed with a court that has proper jurisdiction within the prescribed statute of limitations that are again delineated by statute.
Once a complaint has been filed in court and the action commences, the discovery process starts. During discovery, the plaintiffs (or claimants) and the defendants (typically the health care provider that allegedly committed malpractice) “discover” through document production, interrogatories (written questions and answers) and depositions (testimony under oath) what each sides case is about. Sometimes, a plaintiff may be asked to be examined by a physician expert that is retained to confirm an alleged injury. Experts usually provide expert reports and are then deposed as well. Once these and other steps are taken the case is assigned a trial date by the court.
All cases need to be prepared to go to trial from the moment they are commenced in order to provide the best opportunity to succeed at settlement and at trial if the case does not settle.
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Who can be held liable for medical malpractice?
Generally, a medical malpractice claim may be pursued against those who provide medical or health care to a patient, including, doctors, nurses, dentists, hospitals and nursing homes. Health care providers may also be liable for their negligent employees, in such cases, medical malpractice claims may also be brought against partnerships, professional associations, and corporations.
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What are the costs involved in pursuing a medical malpractice case?
Many attorneys who litigate medical malpractice cases work on a contingency basis, which means that they will not usually charge the client on an hourly basis, but instead, put up the costs of the case and are paid a percentage of the recovery in the event of a settlement or jury verdict. The costs are then recouped only in the event of a recovery. Thus a complainant may obtain legal representation without having to pay for the costs of a case up front. Pursuing a medical malpractice action is often costly, however, as many medical malpractice attorneys work on a contingency basis, the financial concerns of the costs of a case should not prevent someone from contacting a qualified attorney.
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When must a medical malpractice claim be made?
Generally speaking, a victim of medical malpractice has a limited period of time in which they must pursue their claim or forever be barred. In New Jersey the “statute of limitations” for cases such as these is usually two years from the date of the alleged negligence or discovery of the alleged negligence, although exceptions due exist under the law in certain circumstances. Although exceptions are fact-sensitive and requires the analysis of a qualified attorney to determine if they are applicable.
In addition, given the need for a thorough medical and legal analysis before it can be determined that a claim should be filed, waiting until the end of the period in which one must file a claim could deprive the attorney of sufficient time to complete a review of the case in a timely fashion.
In addition, if an entity or employee of government entities is liable or committed the medical malpractice, in New Jersey, a Torts Claim Notice or Notice of Claim must be given in writing to the entity or employee within 90 days or a claim will forever be barred. There are, again, exceptions where a Notice of Claim may be filed late, however, they are fact sensitive and the analysis of a qualified attorney is required to determine if they are applicable. For all of the above reasons, a victim of medical malpractice should contact a qualified attorney as soon as possible to determine if they have a good claim.
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How long does a medical malpractice claim take?
This is a very difficult question to answer. Fortunately, in recent years, the Rule of Court in New Jersey have been changed to include “Best Practices” which have in some ways moved cases along in the system. A medical malpractice case, if not settled, could take a number of years before it goes to trial. Some medical malpractice cases settle before trial, on the even of trial or during trial. Regardless, claimants should be prepared to have to go to trial with a case they wish to pursue and should be aware from the outset that no outcome can be guaranteed. Yet another reason why having your case litigated by a qualified attorney in medical malpractice is important as it may take years to pursue and it is a relationship where trust is paramount.
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How do I know if I have a good case?
A medical malpractice case must be analyzed by a qualified attorney and qualified experts that must often be in field of expertise of the alleged negligent health professional before it may be determined whether or not there is a good case? All of the elements of a case, the liability and damages, and the statutory requirements that include the time restrictions and other restrictions must be assessed. Given the complex legal and medical questions that must be analyzed, anyone who suspects they may have a medical malpractice case should consult with a qualified attorney as soon as possible.
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