Q. What is medical negligence?
A. Medical negligence, also called medical malpractice, includes personal injury claims against doctors, hospitals, nurses, nursing homes, dentists, chiropractors, pharmacists, pharmacies, podiatrists, psychologists and psychiatrists, and ophthalmologists. It can also include claims in some cases against managed care organizations (HMOs). Medical negligence is the failure of a healthcare provider, such as a doctor or the others described above, to meet a minimum acceptable standard of care in treating or making decisions about the treatment of a patient.
Many people incorrectly believe that “negligence” is conduct that is worse or more severe than simple negligence or carelessness. That is not usually the case. Medical negligence is ordinary negligence or carelessness by a doctor or other healthcare provider that causes injury to the patient. It is no different from the negligence or carelessness by a motorist who does not pay attention and runs a red light causing injury.
Q. What are examples of medical negligence?
A. In general terms, medical negligence can include:
(a) Misdiagnosis of a condition or failure to diagnose a condition;
(b) Improper treatment;
(c) Failure to treat or a delay in treatment;
(d) Failure to perform appropriate follow-up treatment;
(e) Prescription errors;
(f) Failing to provide important information to a patient or failure to get appropriate consent for a procedure;
(g) Leaving a foreign object in the body (such as surgical sponge or a medical tool);
(h) Nursing errors such as failing to follow a doctor’s orders for treatment;
(i) Nursing error in failing to report a change in the patient’s condition to the doctor; and
(j) Failing to properly monitor a patient while undergoing surgery.
Q. What damages are available in a medical negligence case?
A. The same damages are available in a medical negligence case as would be available in any personal injury case. These include:
(a) The nature of your injury and whether it is permanent;
(b) Past and future medical expenses;
(c) Past and future pain, suffering, and mental anguish;
(d) Loss of income;
(e) Loss of ability to earn in the future;
(f) Compensation for any scars or disfigurement from the injury;
(g) Past and future caretaking expense;
(h) The spouse of the injured can claim damages for loss of consortium which is the loss of services and affection of one’s spouse. If the case involves wrongful death, compensation for the loss of the value of the life of the deceased.
This is a general discussion of some of the damages which can be claimed in a medical negligence case. Each case has to be analyzed to determine the appropriate damages for that case.
Q. Are there time limits for filing a medical negligence case?
A. If you or a member of your family has been injured by a doctor or other healthcare provider, you should contact an attorney as soon as possible. Arkansas law provides a very short period of time to file a claim for medical negligence. The time limit for filing a lawsuit is called a “statute of limitations.” The statute of limitations for medical negligence is generally two years from the date of the negligent act. There are very limited exceptions to this time restraint. Medical negligence cases are time consuming to evaluate. We cannot file a case until we have appropriate medical support. Consequently, do not delay in contacting an attorney. You may be unable to find an attorney willing to review a medical negligence case if the statute of limitations is about to expire. Even if you do not fully understand the extent of your injuries, you should contact an attorney promptly. Many people wait to see if they will get better and allow the statute of limitations to expire.
Q. How do I know if I have a good case?
A. Determining whether there has been a failure to meet that minimum standard of care almost always involves expert testimony. This means we hire experts in the appropriate fields to review the medical records and other information to determine if there has been a violation of the standard of care. Not all bad results which occur during medical treatment are the result of medical negligence. Doctors and other healthcare providers cannot guaranty a perfect result. The best doctors providing the absolute best care cannot always cure a condition or restore a patient’s health completely.
To determine if you have a good case involves reviewing all pertinent information and medical records. Before a case is filed in the proper court, we review the information with a doctor. This process is expensive. It is not unusual for the review to costs thousands and thousands of dollars to obtain all of the relevant records and have them reviewed by an appropriate expert doctor. If the case proceeds to trial, we will obtain and present the testimony of experts from the appropriate medical specialties.
Q. How quickly should I contact an attorney?
A. To be safe, you should talk to an attorney as soon as possible, especially if the injuries are severe or a death has resulted. All too often valuable evidence disappears, witnesses move, memories grow dim, and the practical ability to prove your case may diminish. If you are still being treated by a physician, an attorney can also provide you with guidance concerning your medical care and help you deal with unpaid bills and getting needed treatment.
Q. What about attorneys fees and the costs of pursuing a medical negligence case?
A. The Brad Hendricks Law Firm usually takes medical negligence cases on a contingency basis although retainer fees at an hourly rate are also available. Frequently as much as $100,000 or more in expenses are advanced by firms handling this type of litigation. The expenses are principally related to the need to hire obstetrical experts, pediatric neurologists, neonatologists, economists, life care planning experts, and other experts, and the deposition and travel costs associated with deposing all of the experts for both the Plaintiff and the Defendant. Of course if our firm is not successful, we have to absorb the expenses, and there is no obligation on the part of the client to reimburse the expenses unless there is a damage recovery. Damage recoveries in these cases can be very high also since they try to compensate for the injuries and any future care and medical expenses for the victim. A contingency fee means that we advance the costs of the case and you do not have to pay anything unless we obtain a settlement or judgment for you. In other words, we do not require you to pay any money at the beginning of the case. We get paid only if you win. Attorneys’ fees are deducted from the gross amount of the settlement or judgment.
Q. Are there alternatives to going to court?
A. Alternate dispute resolution (ADR) is a growing area of the law. Is it generally voluntary but can be court ordered. There are two types of ADR. One is mediation, which is a settlement conference conducted by a trained mediator. Any settlement negotiated in mediation must be agreed to by all sides. Arbitration is another form of ADR. In this instance the parties agree upon an arbitrator (normally an attorney and frequently a former judge) who will serve as the judge and jury and decide issues of fault and award damages. The findings of the arbitrator are normally binding on all parties.
Q. Is technology important to my case?
A. Technology is more and more important in today’s world. Lawyers now use case management software to track deadlines and to provide reminders, as well as document damages, witnesses, and valuable case data. Research available over the internet and CDs replace the massive legal libraries that once were necessary. Interoffice e-mail and internet e-mail allows for rapid and efficient communication, often better then utilizing the telephone. Letters and documents may be e-mailed, edited, and returned, avoiding the delays of the postal service and the inability to edit fax transmissions. Laptop computers can carry images of massive numbers of documents and depositions. During trial, the laptop and digital projector can be used to present video depositions, exhibits, and visual aides to assist the jury in understanding often complex and technical issues. Generally, the more complex the case and the more serious the damages, the more technology can be used to maximize the odds of winning and the amount of the verdict. You should ensure that the firm you hire has the necessary technology to present your case in the most effective way possible.
Q. How long will it take to resolve my case?
A. Medical negligence cases are complex and require thorough investigation. It is not unusual for initial investigation of a case to take sixty days to six months or even longer. During this investigative part of the case, we obtain all medical records, organize and analyze the medical records, and consult with appropriate doctors. Once we determine that your case involves provable negligence, we give the healthcare provider notice that you intend to make a claim. We attempt to resolve the case without filing suit. If the case cannot be settled without filing suit, we take them to Court and resolve it before a jury.
Q. What should I look for in hiring an attorney to represent me in a medical negligence case?
A. Medical negligence cases are time consuming, complex, and expensive. It is important you select a law firm with the resources, both in terms of staff and finances, to aggressively pursue your case. It is also important that your attorneys have experience in taking medical negligence cases to trial and, of course, winning. When selecting an attorney to represent you in a medical negligence case, ask the attorney about his/her experience.
Q. Why should I hire The Brad Hendricks Law Firm?
A. The Brad Hendricks Law Firm is one of the few firms in the State of Arkansas with a department devoted to pursuing medical negligence claims. George Wise and Lamar Porter each have over twenty years of experience in handling medical cases and are assisted by other attorneys who also have valuable experience in this area. In this complex and expensive area of litigation, The Brad Hendricks Law Firm has the resources to hire the necessary expert witnesses and the staff to aggressively pursue your claim.
What if I am not satisfied with the way my present attorney is handling my case?
First of all, you should talk to your attorney to make sure that you know what his or her efforts have been and give him or her the opportunity to explain any delays and whether those delays have been beyond his or her control. If you are having difficulty getting telephone calls returned, then speak to the attorney’s secretary and request a specific time for a telephone conference or a personal appointment. If that fails, then send a letter to the attorney outlining your efforts to communicate and again request a telephone conference or an appointment. If that fails, you have now documented circumstances which may allow you to terminate the representation “for cause.” (In other words, you have documented their failure to keep their part of the agreement).
You can always terminate your attorney for any reason, but the reason for the termination may determine what rights the attorney has regarding the fee agreement that you signed when you hired him and how much he still expects to receive for the work already performed. Sometimes the attorney may willingly give up your case and allow you to retain another attorney, in which case you should request a letter from him setting forth any fees and/or costs he is requesting. Attorneys do not like to take cases where another attorney has been representing the client if there is the potential for a dispute over fees or costs claimed by the previous attorney. Also, this keeps you out of the position of being responsible for paying “double” attorneys fees.
If I’m not sure I want to hire an attorney right now, what should I do to protect my rights?
- Retain copies of all medical bills as they document part of your damages.
- If you can, photograph the accident scene, especially any physical evidence (skid marks, debris, etc.) that can still be seen at the accident scene.
- If you lose work because of your injuries (or treatment for your injuries), you should obtain a note from your doctor, or you may not be able to claim these damages.
- Eventually you will need documentation from your employer to substantiate the total amount of your lost earnings. If you are self-employed, proving loss of income can be very complicated, and you should discuss this with an attorney.
- Contact your own insurance agent and make sure you know what your insurance does and does not cover.
- If your injury has resulted in bruises, cuts, or surgery then document this with a camera.
- Keep your doctor appointments and make sure you obtain all of the necessary medical care that your physician recommends.This not only will help you in recovering as soon as possible, it also documents that you are still having problems and that you are doing your best to get better. The insurance company will claim that missed appointments, treatment delays, and failure to obtain treatment are evidence that you were not injured or that your injuries are not serious.Be aware that the insurance company may hire an investigator to follow and photograph you.
- Keep track of your mileage to and from any pharmacy or medical provider; these are part of your damages.
- Beware of signing unlimited medical authorizations for the other party’s insurance company; this will give that company access to all of your medical records, regardless of whether they are related to your injuries.
- Beware of giving a recorded statement. Any statements you make can be used at trial.
- Beware of where you go for treatment. As in every profession, there are good doctors and bad doctors. Some are “insurance” doctors that will claim a paraplegic can dance. Others may run up large bills that might make your claim difficult to settle.
- As a general rule, never consider settling your case if you are still being treated or having medical problems. Once a release is signed, you can’t come back and claim additional damages, even if you did not realize the full extent of your injuries at the time you settled.
- Last, if you are not presently hiring an attorney, at least speak with one to make sure you are aware of any time limitations that may apply to your case.