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Medical Malpractice Claims Explained

Doctors and nurses often use medical words and concepts which are hard to pronounce, much less understand.  To a patient, this can be intimidating and often causes us to feel awkward when asking questions. Unfortunately, lawyers frequently do the same type of thing when talking about the law, which we like to call “legalese.” As lawyers, we often slip into talk using Latin words which we learned in law school, but frankly gives our clients no clue to what we are trying to explain. So, here is what a medical malpractice claim means in hopefully easy to understand language which is boiled down to three basic questions.

 QUESTION 1: DID THE MEDICAL PROVIDER “MESS-UP?”

Whether it is on purpose or otherwise, a “mess up” is a blunder, mistake, or mix-up.  Like the rest of us, doctors and/or nurses can “mess up” when caring for their patient and sometimes those mistakes cause injury to their patient. However, it is important to understand that not all “mess ups” are medical malpractice.  Bad results happen and that is part of life, but medical malpractice is different.

First of all, medical MAL-practice is a just another way of saying medical BAD-practice. So, the difference between malpractice and a “bad result” is when the Doctor (or medical provider) does something or doesn’t do something that the normal and prudent Doctor in their same “shoes” would have done.  We call this the “standard of care,” which is just a fancy way of saying it’s the type of care that a Doctor would normally provide in your situation.

So, along these lines, medical malpractice occurs when a health-care provider or hospital facility does not do what is normally done to treat a patient. Therefore, many medical malpractice cases turn on this fundamental question: What is normally done (i.e., the medical “standard of care”) in this patient’s situation?  The answer to that question comes from the “customary practices” of the “average/normal” physician in that field of medicine (i.e., what the normal Doctor customarily or typically does in similar circumstances).

The legal technical terms you will hear is that the “standard of care” for Doctors in Georgia is generally defined as such “reasonable care and skill for their patients as, under similar conditions is ordinarily employed by the medical profession.” Additionally, hospitals owe their patients the duty of using reasonable care to furnish equipment and facilities suited to the purposes intended.

So did your Doctor “mess up” in your care and treatment? Well, that really depends on whether your Doctor failed to stick to accepted medical standards for what is normally done in that circumstance.

Long before we ever file a civil action, we will have our medical expert(s) thoroughly scrub your medical records for evidence of “BAD-practice.” In addition to retaining only the most top notch medical experts in the country, one of the big advantages to the Jackel & Phillips law firm is that our staff nurse very much understands the medical terminology involved and the issues of malpractice (far beyond that of most practicing lawyers) due to her long years of nursing practice in critical care/emergency cases. So, needless to say, the attorneys at Jackel & Phillips are well-educated and trained, medically speaking, when we go into battle for you.

QUESTION 2: DID THE DOCTOR’S “MESS UP” CAUSE YOU TO HAVE AN INJURY THAT YOU WOULD NOT HAVE HAD OTHERWISE?

All too often, people concentrate on the first question of whether the Doctor “messed up,” but then fail to go on and evaluate the next two questions which are just as important! So, just because a Doctor may have done something which failed to stick to an acceptable medical standard that does not automatically mean that he or she has necessarily committed medical malpractice. 

In order to be a medical malpractice claim, the Doctor’s “mess up” must directly cause an injury to you that you, otherwise, would have never had. So, for example, if a Doctor fails to recognize a medical condition (like the flu) and that misdiagnosis does not cause any harm to you that you did not already have (because you already had the flu and you would have been treated the same anyway), then the Doctor may have “messed up,” but it is not medical malpractice because the “mess up” did not cause harm to you.

On the other hand, if the Doctor makes a mistake which violates what Doctor’s normally do in that situation and, for example, removes your Gall Bladder when it was your Appendix which should have been removed, then that is medical malpractice.  Why? It is medical malpractice because the “mess up” directly caused you harm in two different ways, which, otherwise, you would not have had.  First, you lost your Gall Bladder (when that organ was fine) and, second, you now need a second surgery to remove your Appendix.

In technical terms, this “cause and effect” requirement for a medical malpractice claim is called “causation.” So, in summary, a malpractice claim only exists when a medical provider’s bad-practice directly causes injury, death, or damages to a patient.

QUESTION 3: WHAT IS MY INJURY WORTH AND IS MY INJURY SEVERE ENOUGH TO JUSTIFY THE EXPENSE OF A LAWSUIT?

The last hurdle in determining whether you have a viable malpractice claim is one of assessing “what is it worth?” This question has much more to do with assessing the “economics” of the claim than the medical aspects of what happened.

More specifically, the insurance companies and news media have flooded the airways with accusations that lawyers are filing frivolous malpractice claims for a quick pay off in return.  Nothing could be further from the truth.  The State of Georgia requires that a sworn statement from a qualified medical expert in support of the malpractice claim be filed in every medical malpractice case.  The reality, therefore, is that medical experts are very expensive and medical malpractice claims costs thousands of dollars to litigate. These costs are normally advanced to the client by the law firm, but it remains unchanged that it is economic suicide for lawyers to make a claim (frivolous or not) which may cost more to litigate than they can hope to recover for their client.

Therefore, when assessing a medical malpractice claim, a lawyer must, by necessity, ask “how much is this injury worth?” Obviously, serious injuries (such as a permanent disability or prolonged suffering) require the engagement of an attorney with experience to assess and pursue the claim when warranted.  On the other hand, less serious injuries (such as injuries to the body which quickly heal) will not qualify for a civil case simply because the recovery will not exceed the costs of litigation.

WHAT SHOULD I DO IF I SUSPECT I MAY BE A VICTIM OF MALPRACTICE?

As in ALL cases of injury, your first priority should be to simply get better! That means seeking competent medical providers and getting the treatment that you need to recover.

If, however, you believe that you may be a victim of medical malpractice, it is also important to consult with a medical malpractice attorney without delay. Medical malpractice cases take a long time to investigate. Lawyers must acquire medical records, hire medical experts and assesses your situation, all of which takes significant time. Evidence (like medical records) can be lost, destroyed or permanently altered (be it on purpose or not).  Most importantly, every state has time limits as to when you may file a medical malpractice claim and it is very rare that these deadlines can be extended. So, the earlier you consult with an experienced malpractice law firm, the better your chances are for success.

Furthermore, our experience is that most doctors and medical professionals are honest, admired citizens of our communities. They may very well want to make amends to correct their medical mistake(s). Medical malpractice insurance companies, however, play by entirely different rules. Despite their catchy slogans, they are in business to make money and they are not “your friend.” In fact, you are, in a word, the enemy no matter if you are victim or not. So, these companies often will delay and deny your claim. Moreover, they understand that malpractice cases are often complicated and costly.  So, the insurance carrier and its attorneys will often try tactics to make your case frustrating, time-consuming, and expensive, so that you want to give up.

WE ARE HERE TO HELP! A medical malpractice claim can be a very complicated world which requires the services of an experienced law firm which has a track record of success. We are that firm! We have served our clients for over 30 years (and our two partners have over 60 years of proven trial experience) with proven results in the arena of medical malpractice. However, the thing that brings us the most pride is simply the difference we have been able to make in the lives of our clients. The success we have had eases the impact of injuries, restored quality of life and permitted clients to simply “get on” with life.

If you believe you or a loved one is a victim of Medical Malpractice, contact us today for a Free Consultation at our Marietta, Georgia location. We look forward to serving you.