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Frequently Asked Questions - Medical Malpractice

Medical Malpractice, What Does it Mean?

Medical Malpractice is an area of the law controlled by statute and common law. In the State of Texas the primary statutory provisions can be found in The Texas Medical Liability And Insurance Improvement Act; Title 71; Chapter 21; Article 4590i. Generally Medical Malpractice describes Medical care, treatment, diagnosis, or lack of treatment that falls below an accepted standard of care. Examples of Medical Malpractice are too numerous to list. However, some common examples include: misdiagnosis, improper treatment, prescription errors, inappropriate follow-up or delay in treatment.

Does a bad Result Necessarily Mean That Malpractice Occurred?

No. Though recent studies suggest that medical errors cause many more injuries and death than originally thought, medical malpractice occurs only in those cases where a medical provider breached a standard of care to the patient. Furthermore, it must be established that the breach of that standard of care caused the injury to the patient. It is not enough to show that a mistake occurred and that the patient was injured.

When Must We Make a Claim?

In most cases, the claim must be made within the first 2 years, due to the statute of limitations. The Statute of Limitations prevents the injured party from pursuing a cause of action against the health care provider if a specified period of time has elapsed. Generally, for most causes of action involving a patient older than 12 years the claim must be filed within two years from the date of the mistake or the date of the misdiagnosis. In most cases the patient doesn't find out about the misdiagnosis or mistreatment for many months or possibly even more than a year. Therefore, many injured patients are prevented from pursuing a cause of action because more than two years have elapsed from the date of the "mistake" or "error" even though the injured person did not know of the negligence for a year or more. In very limited circumstances it may be possible to pursue a cause of action if two years or more have elapsed from the date of the mistreatment. There are special rules that apply to minors. A child under the age of 12 will have until his or her 14th birthday to bring a cause of action. From the age of 12 the child will have the same 2 years provided for an adult to bring a cause of action. Another area that has its own special statute of limitations is the sexual exploitation by a mental health services provider. The statute of limitations for claims based upon the sexual exploitation by a mental health services provider is three years from the date the patient knew or should have known of the wrongful conduct. However, the statute can be tolled for up to 15 years under some circumstances. A minor will have until he/she reaches the age of 21. It is imperative that you have a lawyer determine whether your cause if action is barred because of the statute of limitations. Each case must be evaluated individually. However, it is imperative that you seek legal counsel as soon as possible after learning about mistakes or errors in your treatment otherwise your claims may be barred.

What if I am Told That I do not Have a Case or Claim?

There can be many reasons for an attorney to tell you that you do not have a claim. You should seek a second opinion if the attorney feels as though the chance for recovery is too remote or that the likely recovery is too small. Attorney's viewpoints vary as to the degree of risk they are willing to assume in a case. You may get a second opinion if the attorney, after consultation with medical experts, has come to the conclusion that no medical malpractice has occurred. However, you are less likely to get another attorney willing to seriously review a case if another attorney, after having the facts reviewed by respected medical experts, has come to the conclusion that no malpractice occurred.

How Much Effort Will I Have to Make or Expend to Pursue a Cause of Action?

Initially there will be some investigation done by your attorney and this will require some limited assistance on your part. This assistance will usually be limited to filling out some forms or possibly answering some short questions on the telephone. After a few months you may have to answer some written questions, called interrogatories. Eventually, you may have to answer some questions that will be asked by the opposing attorney, a stenographer will record your answers to these questions. If the case goes to trial, which could be anytime from 9 months to more than 3 years down the road, you will need to attend the trial. The trial may take anywhere from 3-5 days to more than 3 weeks. Normally, your time involvement will be very limited, except if the case goes to trial. However, most cases do not go to trial.

What are the First Steps That Your Attorney may Take in Evaluating Your Claim?

The first step will be to take a detailed history from the patient or the patient's family. Next, all of the pertinent medical records are ordered from the various medical providers. Very often these records can be very voluminous and can take weeks even months to obtain. Your attorney then will take these records to various medical experts for their opinions as to the treatment and care provided. Very often it is necessary to hire experts from "outside the state" because of the understandable reluctance of a local medical expert to "point the finger" at a local colleague.

How Long Will it Take to Know if I Have a Claim or Case?

On occasion we can give a potential client our opinion as to whether they may have a claim after taking the initial patient's history. However, we cannot give a definitive answer until we have received the patient's medical records and have had them reviewed by a medical expert, that specializes in a pertinent field. To acquire all of the pertinent records can take as little as a few weeks to as long as several months. The time it takes to locate and hire the best medical experts to review the medical records is determined by the type of specialty we feel is needed to properly evaluate the case. Normally, the expert's review will take as little as a week to as long as several months depending on the expert's schedule. Therefore, the shortest time for a thorough evaluation is around 3-4 weeks with the longest time being in excess of 6 months.

How Much Will it Cost me to Pursue a Medical Malpractice Claim?

Our Law Firm handles medical malpractice cases on a contingency fee basis. This means that the costs of obtaining the medical records, hiring the experts to review the records, performance of any necessary tests and the costs of filing and pursuing the suit are borne by this firm. If no money is recovered, the client owes us nothing. If we make a recovery then the agreed upon contingency is paid and all of the costs incurred are reimbursed.


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