Limitations on Medical Malpractice - morgan and morgan
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Medical Malpractice Statute of Limitations Explained

Limitations on Medical Malpractice

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Limitations on Medical Malpractice

Since medical malpractice is a legal cause of action, you or someone you know may have been injured during a medical procedure. And now, you want to understand how much time you have to bring a lawsuit for their negligence. The short answer is as soon as possible. 

But first, let's understand what medical malpractice involves. Medical malpractice is when a hospital, doctor, nurse, or any medical professional's actions or acts of omission falls below the expected standard of care, and the patient suffers harm. Of course, medical staff and facilities are expected to uphold the norms of practice in the medical field, so when deviations occur, people get hurt. But there are medical malpractice statutes of limitation in place in every state. 

Medical malpractice limitations 

A statute of limitations is a law that puts a limit on the time you have to bring your case before the courts to get compensation for your injuries. Medical malpractice limitations are dependent on the type of case and the state where you intend to pursue litigation. The time limit can be as little as one- or two years and as long as ten years. 

In most cases, the clock starts running on the exact date the malpractice allegedly took place. There are exceptions which we will detail further on. However, bringing your case within the statute of limitations is critical as courts will almost certainly dismiss it if it doesn't fall within that time frame. Filing the medical malpractice complaint in civil court begins the lawsuit in earnest. 

Why are there medical malpractice limitations? 

Statutes of limitations in civil law date way back to early Roman times and form the basis of how courts operate today. In essence, the statute is enacted to protect people that are presumed innocent. Logic holds that if a person has a valid case, they will pursue it in court diligently. However, limitations also exist because evidence can be lost, witnesses may disappear, and memories fade. 

In medical malpractice limitations, it's also held that an individual should not live in constant fear of being sued for an action they may not remember happened if indeed it happened at all. 

Medical malpractice limitations exceptions 

It would be devastating to have harm come to yourself or a loved one and then lose the ability to bring a lawsuit to get compensated for the injuries due to the statute of limitations for medical malpractice. That is why, in some cases, there is an exception to the statute of limitations legal deadline to begin proceedings. The medical malpractice limitations exception is called the "discovery rule," and it applies when an individual is harmed but the harm or injury is discovered later.  

The essence of the discovery rule is the patient was not aware they had a medical malpractice lawsuit because they literally did not know they were harmed or were not reasonably expected to figure out their health care provider caused an injury. The discovery rule is different in every state, and it may extend the statute of limitations a year or two or many years. The discovery rule exception can also depend on the type of case.
 
For example, let's say a patient has an operation, and the surgeon or staff negligently leaves a surgical cloth inside the patient. The patient feels fine after the operation, so he or she has no idea anything is wrong until several years later, when the foreign object begins to cause pain. 

The patient goes to their primary care physician not thinking the pain they are experiencing now has anything to do with their surgery a few years ago. That is until their doctor performs an X-ray revealing the cloth as the culprit. The primary care physician knows the patient only had a single operation, so is confident the only explanation is the surgeon's negligence.  

The discovery rule would allow the clock to begin ticking at the date of this discovery, not the original date of the surgery, thus allowing the patient to recover damages. 

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FAQ

Limitations on Medical Malpractice FAQs

  • What are the four elements of medical malpractice? 

    The law says to prove medical malpractice, the following elements must be present:
      
    Duty – Physicians inherently have a legal duty to provide their patients with a certain standard of care. This duty is created when the physician agrees to treat the patient seeking their care. 

    Breach of duty – The doctor failed in their duty to react or act properly towards their patient's illness or injury, and their deeds or omissions were in fact, negligent resulting in harm to their patient. 

    Damage - The patient suffered from the physician's negligence by creating new harm or aggravating existing injuries.
     
    Cause – It must be proven that the physician caused the injuries relevant to the case.

  • What are the grounds for medical malpractice? 

    The list below is not an exhaustive list, but some of the following can be grounds for a medical practice lawsuit: 

    • Failing to diagnose or misdiagnosis 
    • Misinterpreting or rejecting laboratory results 
    • The surgery performed was unnecessary 
    • Surgical mistakes or surgery performed at the wrong site 
    • Wrong prescription medication or dosage 
    • Improper follow-up or aftercare 
    • Discharge of the patient too early 
    • Ignoring or not making records of patient history 
    • Failure to procure appropriate testing 
    • Failure to identify symptoms 
    • Childbirth injuries  
  • What is the difference between medical malpractice and medical negligence?

    Medical malpractice contains the element of intent because it is a breach of the duty of care they have towards their patient. The doctor should have performed the right procedure, provided the right diagnosis, or made the right calls, but did not know that their actions could result in harm to their patient. 

    Medical negligence does not contain the element of intent. However, medical negligence can still be a legal cause of action. It's crucial to find the right personal injury lawyer to determine what kind of case you may have. 

  • How do I file a medical malpractice claim?

    In some states, the courts will expect that you informed the physician that caused the alleged harm before filing anything. However, in the majority of cases, your medical provider will be willing to provide the services needed to remedy your injury if at all possible.  

    Since medical malpractice is a very serious claim, you may be required to get a medical assessment to prove your case has merit in some states. This medical assessment will involve another physician reviewing your injuries and medical records to determine whether the original person or entity did indeed deviate from the norms of acceptable practice. 

    When going to trial in almost all instances, an expert's testimony will be required, save a clear-cut case of all-out negligence such as leaving a surgical instrument inside a patient after surgery. 

    Finally, hiring the best medical malpractice lawyer will be a requirement for the successful pursuit of your case. 

  • Do most malpractice suits settle? 

    According to reports, most medical malpractice claims settle out of court or even before trial proceedings begin. One reason is that trials can result in much larger judgments against the defendants. Choosing to accept a settlement as a plaintiff can be advantageous for many reasons, including quicker financial restitution and avoiding the stress of a possibly lengthy trial.
     
    Your personal injury lawyer will give you advice on whether to settle out of court depending on the strength of your case, but ultimately it is you who must make a choice. An out-of-court settlement basically guarantees you will get compensation for your injuries. However, the level of compensation may be less than if you went to trial. 

    The best personal injury lawyers for medical malpractice will be able to give you reliable counsel on what's best for your bottom line.  

  • How hard is it to win a medical malpractice case? 

    According to an article outlining a twenty-year study of the outcomes of medical malpractice claims reveals that physicians win 80% to 90% of trials by jury when the evidence is weak for malpractice. Therefore, it is imperative to get legal counsel that understands what kind of evidence juries will look for when it comes to proving your case. 

    Much of the strength of your case can lie within expert testimony. Expert testimony can validate that your physician did not exercise the standard of care that is the norm of his or her medical profession.

  • Why choose Morgan & Morgan for your medical malpractice lawsuit? 

    Morgan & Morgan's founder, John Morgan began his law career because his brother Tim was hurt in an accident when he was just in high school. The way his brother was treated during litigation outraged John, and he decided to become a lawyer. He would only work to defend the little guys against powerful corporate lawyers from that point forward. 

    These being the same kinds of lawyers whose primary goal is to keep you from getting the financial relief you deserve for your injuries due to medical malpractice or medical negligence.  
    If you believe you've suffered from medical malpractice, Morgan & Morgan has just the right kind of expertise to win your case. 

    We have the vast resources to investigate your claim and access to respected medical experts that you need to argue your case successfully. In many instances, a trial may not be the best course of action if a valuable settlement is on the plate. However, should we need to take your case to trial, we have an arsenal of trial-ready lawyers with the experience and grit it takes to make an outstanding argument in front of a judge and jury.

    You don't have to face it alone. Pursuing a civil case on your own is precisely what lawyers defending the person or person's that hurt you are hoping you will do so they can grind down your hope and make their client's problem go away. You need someone that will fight for you to make things right. You need Morgan & Morgan on your side. Contact us anytime to schedule your free consultation. And by the way, we don't get paid until you do! 

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