How to Sue a Doctor For Malpractice
If you've been wrongly diagnosed by a doctor for a medical condition or illness, you're probably going through a range of emotions and wondering what you can do about it. Suffering a misdiagnosis can cause unneccessary pain, stress, and even financial burden on many people, and can sometimes even lead to a dehabilitating situation or in rare cases, death. So you're probably wondering if you can sue a doctor for a wrong diagnosis or for malpractice, and the answer to that is, "Yes you can". But not everybody who files a lawsuit will actually win, and it can often times be a very long and enduring process. Because of this, it's best to speak to a lawyer to see if you have a chance of winning your case or if the lawyer will even take your case. Most medical malpractice lawyers will offer you a free evaluation or consultation where you can discuss these things with them free of charge. If they believe you have a real shot at winning your case, majority of them will even take the case on a contigency fee, meaning you don't have to pay them unless you actually win the lawsuit. But this can still be time consuming for you and if you lose you will still have to pay all the other associated costs yourself, such as court fees. So if you're wondering what types of factors decide whether a lawyer will take the case or not or whether you have a chance at winning, here's some of the things you should probably know about when trying to sue a doctor for misdiagnosing you.
What Can You Sue For?
The most important factor involved is whether any harm, pain, or damage, came to a patient or not. If a person is misdiagnosed by a doctor but was correctly diagnosed by another doctor before any problems from the misdiagnosis started, then it will most likely be hard to sue that doctor because you will be unable to prove how the misdiagnosis damaged or hurt you. It's very unlikely that you will win a lawsuit based on what might have happened, but much easier to win if you can base it on what did happen. The more damages or pain and suffering that occurred to you, the more easy it will be for you to argue your case to a jury and win. For example, let's pretend a man is misdiagnosed by a doctor who tells him that he doesn't have anything wrong with them. Then he visits another doctor the same week and the second doctor discovers that he has prostate cancer. The man gets treated and they catch the cancer early and it does not spread and he eventually recovers without any complications. In this case, the man would have a very hard time suing the first doctor, because the misdiagnosis did not actually result in additional pain or serious financial hardship or other consequences. Sure, if he hadn't have visited the second doctor then these negative things may have happened later down the line, but since they didn't, the man doesn't have much of a case. But each scenario is different and unique so it's best that you speak to a lawyer or two just to confirm this and to see how hard your case will be to argue in court. If you can show actual harm due to misdiagnosis, malpractice, or mismanagement, or simply messing up during surgery, then your case is that much stronger and a lawyer will probably be more willing to assist you and take it to court.
Another factor that plays a huge role in malpractice lawsuits is whether the doctor that's being sued actually followed the standard of care for their type of profession or area. Most states and countries have what's called the "standard of care" which is basically a phrase that means that a certain standard of care is expected in that place or from a certain medical profession or service. Even if a doctor misdiagnosed someone and there was harm done to the patient as a result, an attorney will most likely have to prove that most other people in the same profession would not make the same mistake. If it's a common mistake that other doctors could easily have made, then it will be harder to prove your point and win your lawsuit. This is why medical malpractice cases often involve other doctors or medical professionals taking the stand as expert witnesses to determine if someone else would have or could have made a similar mistake and how common that mistake would be. If it's unlikely that someone else in the profession would make that mistake (if your doctor or whoever you are suing did not follow the usual standard of care that's expected), then your case will be easier to win.
Who Can You Sue?
You can sue doctors, nurses, diagnostic lab technicians, counselors, and pretty much anyone else that may have been responsible or contributed to your problem. This can fall under misdiagnosis, malpractice, mismanagement, or a number of other errors or mistakes. Doctors usually aren't employed by the major hospitals they work at, so in the case of visiting a hospital, you may not be able to sue the actual hospital and would probably only be able to sue the individuals who provided a service to you or dealt with you. Some of the most common things that medical professionals are sued for include a doctor failing to refer you to a specialist when it's needed, a doctor misinterpreting lab results, a lab technician altering lab results or failing to provide accurate ones, a doctor or practitioner not following up with potentially serious medical conditions or suspicious warning signs, any medical professional not testing or screening for a particular disease or medical illness when there's evidence that they should, as well as many other scenarios.
Statute of Limitations
Just keep in mind that in most states and countries there is a statute of limitations when it comes to filing a lawsuit or bringing forth your claims. Statutes of limitations are the time frame that you have to bring action, and this can vary from between 1 year to 20 years, but sometimes there is no limit at all. The time frame you have to file is different for each state or country so you need to check to see what the statute of limitations is in your area or where this occurred or speak to an attorney and ask them since they will surely know. If the statute of limitations has passed already, then you may be unable to bring forth a lawsuit, so this is why it's better to start doing your homework or talk to a lawyer before it's too late. Sometimes the statute of limitations begins when the actual misdiagnosis or error occurred, but other times it begins when the actual harm or damage first started or when you first noticed. It can also start when a second doctor confirms that you were misdiagnosed. So it really does depend on where you actually live or where the incident occurred and this is why you need to check yourself or talk to a lawyer as soon as possible.
How Do You Start a Lawsuit?
It's best to start your lawsuit proceedings by first speaking to a lawyer, and beforehand, preparing all records of the incident and a timeline of events such as appointment dates or what was talked about during consultations. You should make copies of all bills, statements, and records that you have and give them to your lawyer rather than handing over the originals. This way if you need to switch lawyers or if the lawyer who represents you loses the paperwork, you will have the original copies as backup. In some states they may require you to first send a letter to the person or institution that you are planning to sue and to offer them a sum that you are willing to accept before actually filing the lawsuit. Many states encourage that you try to settle the matter outside of court first before you actually take it to court, because they don't want the system tied up with cases that could be settled personally and between the two disputing parties. So if you decide to do this, you should do the same as what you would do when contacting the lawyer, and make copies of everything and send the other copies to the person or business you are trying to settle with to let them know the exact details of your claim. Before actually doing this, check with official medical organizations or online to study what the expected standard of care is in your case so you can be sure that there was actual negligence that occurred.
If you choose to pursue matters on your own, then again, you should still probably try to settle out of court first. When it's time to file, if it comes down to that, then you should get all your paperwork and dates and records in order and prepared, and then go down to the county clerk's office to fill out a petition. A petition is the form you file that starts the court proceedings and let's the county know that you want to take matters to the next level and actually sue. From there, the county clerk will send a representative the local Sheriff to the address of the person you're suing to serve them with a subpeona. This lets them know that they are being sued and gives them instructions on how to proceed. But it is not recommend that you do all of this on your own, because even if it goes to court, majority of people are not trained in law well-enough to handle a major case such as this and sometimes there are penalties or other problems that may arise from a person or lawyer filing the wrong paperwork or doing or saying things in court that they shouldn't. The case can sometimes be dismissed as a result of this, so it's not worth the risk unless you've actually studied law and are sure that you know what you're doing. Most people should just contact a lawyer, whether you think you have enough money to pay them or not. As mentioned earlier, they will usually tell you if you have a strong case or not and most will give free evaluations at least or even work for you on a contigency plan.
How Much Can You Sue a Doctor For?
The amount of money you can sue a doctor, health care employees, or a facility or system for depends on your particular case. There is no minimum amount and no maximum amount, but a lawyer probably won't want to take your case unless he or she thinks that you can make a considerable sum, probably over $100,000 or more. The amount of damage, pain, suffering, or financial loss you incurred as a result of negligence is what will most likely determine the amount you will be awarded. For example, if you will suffer for the rest of your life and need further ongoing medical care all those years because of a doctor's mismanagement or neglience, then a jury will probably estimate how much this ongoing care will cost and award that as a lump sum, as well as any other amounts they award for emotional stress or any punitive damages. Punitive damages are basically like a form of penalty or punishment for the person who is being sued that they must pay in order to "teach them a lesson" in an effort to ensure they don't do it again or to set an example for others. How much the punitive damages amount to and whether any will be award also depends on the particular case and just how negligent the doctor or person you're suing actually was. But to give you an idea of a few past cases that have made major headlines over the past two decades, below are just a few examples of real life people who won lawsuits where they sued for medical malpractice or mismanagement.
Some Examples of Famous Malpractice Cases
-Krissy Myatt, a Fort Collins, Colorado woman who was in her early 30's in 2006, went to an emergency room at her local Poudre Valley Hospital. She complained of having a very severe headache and she was found to have a very high blood pressure reading. Regardless of this, a doctor sent her home and diagnosed her as having a migraine. The next day she woke up partially paralyzed and unable to speak. Her "migraine" turned out to be a brain bleed which caused a hemmorhagic stroke. Her lawsuit was filed in 2008 and she finally won $3.9 million as a result in 2012.
-In 1994 a Massachusetts woman named Audrey Serrano, 45 years of age, was diagnosed by a family clinic as testing positive for HIV. Two years later, she went to see a doctor at an unaffiliated medical center to start receiving treatment for her disease, which involves taking a powerful cocktail of different medications that can cause all types of damage and problems to an otherwise healthy body. In 2003 she decided to get tested a second time at a different hospital and was found to be HIV negative. She sued the doctor who had been giving her the medicine for all those years because the doctor failed to test her again to confirm the family clinic's original diagnosis. The patient was awarded $2.5 million in 2007.
-Long Island resident Stephanie Tesoriero, 50 years of age, found a small lump in her breast in 2002. She saw a doctor at a breast care center who told her that it wasn't malignant and said she would not need any more testing. But 16 months later the small marble sized lump had swelled to the size of a golf ball and she decided to see another doctor. The doctor found that she indeed had breast cancer. As a result, she had to undergo a mastectomy, as well as radiation and chemotherapy. She sued the doctor and in only two weeks a jury awarded her $15 million.
-In 2001 a Bethel Park, Pennsylvania woman in her early 50's, Lynn Flaherty, was having headaches and nasal problems. She visited a family clinic and they decided to put her on steroids. Within about 5 days Mrs. Flaherty began to experience symptoms similar to what one would experience after a stroke. She went to an emergency room at a local hospital where they diagnosed her as having a brain abcess, caused by a sinus infection. She had to go through brain surgery as well as a number of other traumatic events in the hospital as a result as well as having to stay in the hospital for two months and undergo rehabilitation therapy just so she could learn how to walk again. In 2012, after an 8 day trial, she and her husband were awarded a total of $3 million.
-In 2012 a couple of parents in Portland, Oregon were awarded $2.9 million in a lawsuit against Legacy Health System for misdiagnosing their 4 year old daughter before she was born. Doctors working for the health system told Deborah and Ariel Levy during a prenatal screening that their unborn daughter would not have down syndrome, but when she was born she was indeed born with down syndrome. This resulted in a type of lawsuit known as a wrongful birth lawsuit, because the parents argued that if they had known that their daughter would be born with down syndrome, they would have aborted her instead. After a 10-day trial, the jury found not only the doctor to be negligent in the case because he took too small of a sample from the patient's womb, but some of the lab workers as well who incorrectly screened the samples.
-In Jacksonville, Florida back in 1999, a doctor by the name of Leonard Masters won a medical malprice lawsuit against a mental health facility by the name of Anchor Hospital in College Park, Georgia. In 1992, there were complaints against Masters that he was prescribing too many painkiller medications to patients and possibly taking the painkillers himself. So he had to undergo a 4-day evaluation at the mental hospital or face losing his license to practice as a doctor. He tested negative for alcohol and narcotics but was still admitted to the facility against his will for four months to undergo rehabilitation and treatment. As a result, he had to pay $25,000 for his stay at the facility, and lost his job since his contract stated that he could not miss work for longer than eight weeks. After a month-long trial, he was awarded $1.3 million by a jury which found numerous employees at the facility to be responsible in the negligence.
comments powered by Disqus