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A: Medical malpractice is made up of three issues: A deviation from the standard of care, which simply means the physician and/or healthcare provider conducted him/herself unreasonably under the circumstances. The conduct at issue could be an improper action, giving the wrong medication or a failure to act (for example – failing to treat a condition which a reasonable physician should have recognized.)
The second issue is proximate causation. Proximate causation means the deviation from the standard of care was a direct and proximate cause of the injury being claimed.
Assuming those two elements have been met, plaintiffs are then entitled to reasonable damages arising from their claims, including economic and non-economic damages as the result of the malpractice.
A: Each individual's medical malpractice case is unique.
Damages in a malpractice case are comprised of economic and non-economic costs. Economic damages include the cost of past and future medical care and wage loss. Pain and suffering is the non-economic value of living with the injury. There are caps on the damages in the state of Ohio. The caps vary based upon the timing of the medical treatment, degree of injury, marital status, and the total value of the economic claims. No answer to what your medical malpractice case is worth can be provided with accuracy without a detailed investigation of the claim.
A: The typical medical negligence claim takes approximately two years to bring to trial after filing.
Prior to filing, there is a six month review period which includes acquisition and review of records and retention of expert witnesses. At our office, we never plan for a case to settle. Instead, we find by aggressively working files towards trial, it creates the opportunity for fair resolutions to be obtained. These cases are typically fought hard by the insurance industry and involve complex issues throughout discovery. Accordingly, to predict the time it takes for a case to resolve is highly variable and is based on each individual case.
A: Typically, yes.
A plaintiff is normally placed on notice of a lien and/or a right of subrogation by his/her insurance company. The basis is that your insurance company has advanced the cost of your care for someone else’s mistake.
Liens can often be negotiated down, however. But it is the most prudent practice to assume you will pay all or some of the healthcare costs back out of any proceeds you get from a settlement or verdict.
A: Medical malpractice cases are highly complex and costly to bring.
Trial expenses alone can vary anywhere between $10,000 and $200,000 based upon the nature of the claim and the number of parties involved. At Elk & Elk, we advance these expenses and make them contingent upon a successful resolution. This means to a plaintiff that there is no risk of having to repay these expenses in the event that the claim is not successful.
A: The statue of limitations for medical malpractice is one year from the date of last treatment with a responsible healthcare provider or one year from the "Cognizable Event.” A cognizable event is defined as when a reasonable person may have suspected that medical malpractice occurred. The court will look at whatever is the later of these two dates and the one-year statue will begin to run from there. The statute of limitations can be extended six months by filing a 180-day letter to each potentially responsible defendant. This allows addition time for your claim. 180-day letters have to be filed before the one year statute of limitations expires.
Additionally, when the medical negligence results in the wrongful death of the individual, the statute is 2 years from death. According where death has occurred, there may be two different statues of limitations for the two different claims that each party would have.
A: Yes.
Under Ohio law there are actions for wrongful death. These claims have a two-year statute of limitations and are designed to benefit the surviving dependants – as defined by the law – of the person who passed away. These individuals may include parents, spouses, children and, at times, siblings. There are no damage caps or limitations on wrongful death claims. The claim includes lost wages for dependents, loss of companionship, and loss of society.
A: Various statistics published by the medical profession themselves vary, but describe medical malpractice as a leading cause of death/injury in the United States of America. One recent study – the HealthGrades Patient Safety in American Hospitals Study – placed the annual death toll due to medical errors at 195,000, accounting for $6 billion per year in unneeded costs.
A: A medical malpractice case can only be brought by the individual who was the subject of the medical malpractice or the legal guardian appointed on his/her behalf. When the malpractice leads to death, the claim must be filed by an individual appointed by the probate court to act as the administrator of the estate. The administrator of the estate is typically one of their heirs: A spouse, parent, sibling, or grown child, for example.
A: Healthcare providers, including physicians, nurses and other caregivers who failed to conduct themselves reasonably in the diagnosis or treatment of a patient are typically defendants in medical malpractice actions. The unreasonable conduct must be the proximate cause of harm or else the claim cannot be pursued. Under Ohio law, you can only pursue a claim against someone involved in the medical profession if you have had the claim reviewed by a competent expert witness who is willing to author an affidavit critical of the healthcare provider.
A: The plaintiff in a medical malpractice case bears the burden of proving all three elements of the claim. We must show more likely than not the physician or healthcare provider deviated from the established standard of healthcare (i.e. "failed to act reasonably") and that the deviation was a proximate cause of harm. Thereafter, the plaintiff must prove each and every element of damages including economic and non-economic damages being claimed. The elements must be proven under the law through testimony from qualified expert witnesses.
A: Call Elk & Elk.
As soon as you suspect there may have been medical malpractice you should contact a medical malpractice lawyer who is competent to handle claims in this area. Obtaining medical records, reviewing them and retaining expert witnesses all take time. In medical malpractice there is a statute of limitations of one year to file a claim. Accordingly, time is of the essence and you should immediately contact a malpractice lawyer to help you determine whether you have a claim.
A: Not necessarily.
A misdiagnosis is only medical malpractice if a reasonable physician in the same or similar circumstances would have suspected the appropriate diagnosis. Furthermore, the misdiagnosis must cause harm or else it is not actionable.
A: Typically, no.
However, each individual case can only be assessed by reviewing the release or settlement documents for its particular circumstances.
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DISCLAIMER: This site and any information contained herein is intended for informational purposes only and should not be construed as legal advice. Seek competent legal counsel by calling us at 1-800-ELK-OHIO (1-800-355-6446) for advice and counsel on your individual situation. Thank You.
Elk & Elk has successfully helped injury victims of medical malpractice and automobile accidents in all 88 counties. These include the cities of:
Columbus, Cleveland, Cincinnati, Toledo, Akron, Dayton, Canton, Youngstown, Lorain, Hamilton, Elyria, Mentor, Middletown, Cuyahoga Falls, Mansfield, Newark, Warren, Strongsville, Beavercreek, Lima, Findley, Lancaster, Westerville, Marion, Brunswick, Medina, Wooster, Sandusky, Zanesville, Xenia, Centerville, Alliance, Chillicothe, Troy, Athens, Ashland, Piqua, Portsmouth, Norwood, Sydney, Miamisburg, Ashtabula, Sylvania, Steubenville, Marysville, Tiffin, Springboro, Pickerington, Perrysburg, Fremont, Norwalk, Defiance and Mount Vernon
