1/28/2011· Medical Malpractice
In 1998, problems with my vision forced me to retire from the active practice of cardiac surgery.
Each medical malpractice lawsuit is different, and each state has different laws. In general, this is the process in Florida. Your case may proceed differently. We can break it down into 4 stages: investigation, pre-suit, suit, and post-verdict. The process takes months to years. Mediation (meeting with the other side to try to settle) can occur during any of the 3 later stages. It is very important, so we will discuss it here too.
Party: either the plaintiff or the defendant. In this website, a party is not a social gathering!
Plaintiff: the person filing a lawsuit. Usually this is the injured person, but it can be a parent (if the injured person was a child) or a personal representative (if the injured person died). A spouse can also sue for their loss.
Plaintiff's attorney: the attorney hired by the plaintiff to represent him. Plaintiff's attorneys often work for a percentage of any recovery, so they take a risk of getting nothing. Devesh Tiwary is a plaintiff's attorney, at TiMedLaw.
Defendant: the entity (doctor or hospital along with the employer and corporation) being sued.
Defense attorney: the attorney hired by the defendant to represent him. They are usually paid hourly.
Third Party: someone involved in the suit but not a plaintiff or defendant. Examples included to your health insurance company and your treating doctors.
Are you within the time limits?
If more than 2 years have gone by since you should have known about the negligence, it may be too late. As always, there are exceptions (for example, for children or fraud).
Is there a valid claimant (someone who can bring a claim)?
If an adult died from malpractice, you need a surviving spouse or dependent child (usually younger than 25 years old) to bring the claim (not a sibling or grown up child).
If we can pass these hurdles, we look at negligence, damages, and causation.
Negligence is the failure to conform to the applicable standard of care. Basically, it means improper or careless behavior.
We look at the medical records to determine if there was negligence.
We then identify who was negligent, such as a doctor or nurse.
The harm you suffered due to the negligence is called damages. Damages include items that are easy to measure, such as the wages you lost and your medical bills. They also include things that are hard to measure, such as your current state of health (if it is worse that in should be), the loss of your future earning capacity, and your suffering. We see if your damages are enough to make pursuing a claim worthwhile. Because lawsuits are costly, with going to trial costing up to $100,000, the damages must be high for it to make economic sense to proceed.
If we overcome the basic hurdles, find negligence and can prove enough damages, we send the records to a doctor who is in the same specialty as the possible defendant. If this expert physician finds that the records show negligence causing harm, he or she writes a report. With that report, called a Verified Written Medical Expert Opinion, the case can proceed to the next stage, presuit.
The information you obtain here is not legal advice. Consult an attorney (preferably TiMedLaw!) regarding your own situation.
TiMedLaw is a law firm dedicated to helping those who have been hurt by medical malpractice. Every TiMedLaw case is handled by Devesh Tiwary, MD, JD. You get the benefit of Dr. Tiwary's training, experience and individual attention. He is a medical malpractice attorney who graduated from Harvard Law School, as well as a Board Certified General Surgeon.
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7/24/2020· Medical Malpractice
An affidavit in legal terms is a sworn statement that assures the merit of your claim. In a medical malpractice case it is produced, at the request of the attorney, after the expert provider (physician, physician assistant/nurse practitioner) has reviewed the medical records and believes that the standard of care was breached and it was a cause that contributed to the patients injuries
3/25/2015· Medical Malpractice
A malpractice action requires the plaintiff to prove: (1) the defendant caregiver owed a duty of care to the plaintiff-patient, (2) the caregiver departed from that standard of care, and (3) that departure from the standard of care actually caused the injury claimed by the plaintiff. "Causation" 11; often the critical component in a malpractice action because the presence of a duty is often obvious, except perhaps in "Good Samaritan" cases, but the statutorily-required expert witnesses will argue about whether the caregiver departed from some standard of care. Because defining "causation" is difficult, there are interesting distinctions in legal versus medical, sociological, or philosophical concepts of cause-and-effect. Applying this difficult concept of "causation" to the very complex world of labor and delivery (L&D) does indeed beg the question, just how can causation be established?