Medical malpractice occurs when a physician fails to properly treat a medical condition and the negligent act or omission is the cause of a new or aggravated injury to the patient (obviously, the physician cannot be responsible for the original underlying medical problem).
The negligence in medical malpractice cases can occur in a variety of situations, including but not limited to:
It is the attorney's obligation to determine as quickly and efficiently as possible whether there is a good, actionable case. This is so because medical malpractice cases are complex, expensive to pursue, have a high risk of no recovery, and often involve a client's "personal" attachment. YOU NEED TO CONSULT AN ATTORNEY BEFORE TALKING TO A REPRESENTATIVE OF THE INSURANCE COMPANY.
The first step in the medical malpractice claim process involves a potential client entering into an agreement with an attorney that sets forth the method of attorney compensation. Typically, the attorney agrees to advance all costs, to be repaid in the event of a recovery. The attorney will usually work on a contingent fee basis — that is, the attorney will receive a percentage of the gross recovery. Thus, the client will endure no economic loss in the event of no recovery.
During an initial consultation, the attorney will obtain a detailed medical history of the client, including the names of all physicians and hospitals that have rendered medical treatment to the client. It is valuable for a client to prepare a written summary (timeline) of all medical treatment, including dates, doctors, symptoms, conversations with medical providers, and treatment received. Thereafter, all relevant medical records are obtained by the attorney. In many medical malpractice cases, proof of negligence is found in these records.
In order to determine if there is "medical malpractice," it is necessary that a medical expert be retained to consult with the plaintiff's attorney. This expert should be well qualified to give a medical opinion; frequently, they are board certified in the relevant field of medicine. If, after a thorough review of the pertinent medical records, the medical expert concludes "with reasonable medical certainty that the action or inaction of the defendant physician was the cause of damage to the plaintiff," it is appropriate to file suit against the physician/hospital. Filing suit begins the legal advocacy process, which may last several years. During this period, both parties exchange a series of documents. In the first stage (the legal pleading stage), the parties set forth their legal theories. In the second stage (the discovery stage), the facts to support the various legal theories are developed. If the parties are not able to resolve their differences, the case, now in its third stage, will go to trial before a judge and jury.
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