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Frequently Asked Questions

What is a medical malpractice case?

In simplest terms, medical malpractice is a mistake on the part of a healthcare provider. It occurs when a health care provider delivers faulty, substandard, or negligent treatment that results in death or injury to the patient.

However, several specific factors determine whether a medical malpractice case will hold water:

  • There was a doctor-patient relationship, and the doctor had a duty to provide care.
  • The provided care and treatment fell below accepted medical standard. In other words, is it likely that another doctor would have made a similar mistake?
  • The patient suffered harm as a result of the provided care.
  • The harm suffered is quantifiable.

These terms are vague and arbitrary. If you feel you’ve suffered at the hands of a doctor or other health care provider, contact a Morgan & Morgan attorney to determine the weight of your case and get a fair diagnosis.

What is "informed consent"?

"Informed consent" is when a patient agrees to go through with a medical procedure after having been completely informed by his or her doctor of all the relevant facts needed to make a decision. Those facts include risks, as well as benefits, possible outcomes, and alternatives. Additionally, you must be of sound mind in order to give informed consent — you cannot be mentally disabled, intoxicated, sedated (even mildly and medically), or severely sleep deprived. Almost always, informed consent must be written.

Serious ethical issues arise if a patient can’t give informed consent for any reason. Your doctor could be held liable for the harm or pain you suffered. If you feel your doctor withheld relevant information from you, or you were pressured into giving informed consent, you could have grounds for a medical malpractice lawsuit.

I signed a consent form prior to my procedure. Can I still recover damages in a medical malpractice claim?

Yes, it is possible that you will still be able to recover damages even if you signed a consent form. If your doctor’s actions and treatment didn’t live up to standard medical practice, you may have basis for a medical malpractice case. While medical procedures are often risky and unpredictable, a doctor’s negligence has nothing to do with your consent.

What is a Certificate of Merit?

Before you can even file a medical malpractice case, you will likely need a certificate of merit, which declares that your case will hold water in court.

An expert - usually another doctor or healthcare provider - must review your relevant medical records and confirm that your doctor departed from standard medical practice, which resulted in injury to you. Essentially, this expert must sign off on your case. Your case is often not deemed legitimate until your attorney files the certificate of merit.

Is a misdiagnosis considered medical malpractice?

If your doctor incorrectly diagnoses you, and you suffered additional harm due to that misdiagnosis, you may be able to seek legal compensation through a medical malpractice case.

The key question in misdiagnosis cases is the same as in other medical malpractice lawsuits: Would another physician have handled the case drastically differently? Would he or she have caught the problem earlier? It is a question of the accepted standard of medical care.

Can I file a malpractice suit against someone who isn’t a doctor?

Anyone who provides healthcare services may be named as a defendant.

Can I lose my right to pursue a lawsuit if I didn’t follow a doctor’s instructions?

It depends on the severity of your derivation from the instructions, as well as the severity of the doctor’s negligence. If you do not exercise due care and attempt to mitigate damages, you may be found to be comparatively negligent. If this is the case, any damages you receive may be minimized.

If my insurance company covers part of my costs, will that affect the amount of the award I get if I win?

Under the collateral source rule, courts are not allowed to reduce an award for damages because you have been partially compensated by a nonparty to the case.