The Answers to Our Clients’ Most Frequently Asked Questions
Experienced Washington D.C. and Virginia personal injury lawyers answer some of our clients' most frequently asked questions about medical malpractice, birth injuries, car and truck accidents and catastrophic injuries.
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Are surgical injuries considered medical malpractice?
It’s hard to believe, but many surgical errors are the result of doctor negligence; however, not all mishaps that occur during surgery are considered medical malpractice. So how do you know if the error that occurred during your surgery would be grounds for a medical malpractice lawsuit?
Any time there is an unexpected outcome from surgery, it is always worthwhile to investigate whether you were injured due to negligence. Here are some examples of negligence that could indicate medical malpractice:
- Surgery on the wrong side of the body
- Leaving a surgical instrument in the body after surgery (e.g., sponges, retractors, forceps, or surgical towels)
- Injuries to organs or vessels close to the surgical site
- Failure to recognize post-operative bleeding
Most injuries that occur during surgery involve some type of negligence that could amount to malpractice. Even anesthesiologists can make mistakes during surgery that can lead to patient harm. If an anesthesiologist is guilty of administering too much anesthesia or not monitoring a patient’s vitals during surgery, the anesthesiologist would be guilty of medical negligence.
So when would a surgical injury NOT be considered medical malpractice?
To determine when a surgical error would not necessarily be considered malpractice, the act in question would be compared to what another competent surgeon would have done under the same set of circumstances.
Here are some examples when a surgical error would probably NOT be considered malpractice:
- Less than favorable outcome. If someone didn’t like the look of a scar, for instance, or if someone didn’t want a C-section but a surgeon performed one anyway because it was medically necessary, malpractice would be very difficult, if not impossible, to prove.
- No improvement. Sometimes people undergo back surgeries or other types of surgeries to feel better but they end up in the same condition. This type of outcome is generally not malpractice because surgeons warn their patients about this potential outcome ahead of time.
Before determining whether you do or don’t have a medical malpractice case following a surgical mishap, please talk to an attorney about your specific situation. You can find out about your rights and get other questions answered in a free no-obligation consultation. Call or email us today.
What does pain and suffering mean in a medical malpractice claim?
If you are like most people, you probably have heard the term “pain and suffering” and know that juries frequently award this type of compensation in lawsuits, but you may not know if it applies to you or how it relates to medical malpractice claims.
From a legal perspective, pain and suffering in a medical malpractice case relates to the physical and mental suffering a victim endures as a result of a doctor’s negligence. It is the compensation awarded to an injured victim known as non-economic damages (a component of a plaintiff’s damages). Unlike economic damages that compensate victims for medical bills, lost income, and other exact dollar amounts related to their injuries, non-economic damages don’t have exact calculations.
Understanding the Two Types of Pain and Suffering
You can experience physical pain from injuries, but you can also suffer emotionally. We explain the difference here:
- Physical pain and suffering. This is defined as the physical harm that a patient suffered as a result of an act of medical malpractice (e.g. bodily injuries, disfigurement, scarring, etc.). Physical pain may make it difficult for a victim to sleep, perform physical activities, or even work, which often leads to the mental or emotional component of pain and suffering.
- Mental pain and suffering. This type of pain is the mental anguish and emotional distress a victim suffers as a result of the physical pain. Many people who suffer a traumatic injury develop fear, anger, stress, anxiety, sleep problems, lack of energy, appetite and weight issues, and more. Sometimes, the mental pain is severe enough that victims are diagnosed with post-traumatic stress disorder (PTSD). Mental pain and suffering can actually be debilitating—preventing a victim from enjoying life or even being able to return to work.
In medical malpractice cases, victims would be awarded money for their pain and suffering in addition to their other damages. Sometimes the amount of money awarded for pain and suffering can actually far exceed the claim for economic damages—making it a key component of medical malpractice claims. Therefore, a good attorney will know the importance of conveying to a jury how much his client’s life has been adversely affected physically, mentally, and emotionally by an act of medical negligence.
To learn more about the damages you may be entitled to receive, call us for a free consultation or contact us online with further questions. We are happy to answer your questions and want to help you understand more about your rights to a medical malpractice claim.
Why would a third-party expert be needed for my malpractice claim?
In a medical malpractice lawsuit filed against a doctor or other healthcare professional, it is critical for a medical expert to be involved to explain that a patient is owed a duty of care and that the medical professional breached that duty of care. In fact, having a member of the same profession explain that another physician would have taken different actions under the same set of circumstances goes a long way toward showing a judge and jury that the physician violated the standard of care of the profession, which establishes medical negligence.
Medical terminology can be complicated, and the facts surrounding medical issues are generally too complex for laypeople to fully comprehend. Therefore, a medical expert’s opinion and testimony makes it easier for a jury to understand how a medical professional deviated from the standard of care and how that medical negligence led to a patient’s injuries.
The medical expert’s testimony would explain what a competent doctor would have done in the same situation. An expert can do this by referring to medical board guidelines, medical publications, scientific studies, or other sources to help strengthen his or her opinion.
In addition to the fact that a medical expert can help explain what happened and how the doctor’s conduct was negligent, an expert is needed in medical malpractice cases because it’s the law. In Virginia, medical experts are required to be involved in malpractice cases from the very beginning. In fact, a patient will not have a valid case unless a medical expert reviews the facts and signs a certificate of merit (also known as an affidavit of merit). A certificate of merit is basically a written opinion by the medical expert that states that the physician in question breached the standard of care and that the breach caused the injuries. In our state, this certificate of merit is required before someone can move forward with filing a lawsuit.
If you have additional questions about your potential case and would like to speak to a lawyer who has experience handling medical malpractice cases, please contact our office for a free, no-obligation consultation.
When are hospitals liable for malpractice?
Hospitals can be held responsible for cases of malpractice when their employees are careless or negligent, or intentionally harm a patient. Whether a doctor makes a mistake in surgery or a lab technician mixes up patient labels, the hospital may be as liable as the employee who made the mistake. We take a closer look at hospital liability in this article.
The first way in which a hospital can be held liable for malpractice is when its employees behave negligently. Situations like these can include technicians misreading lab results, doctors misdiagnosing health conditions, nurses giving patients wrong medications or incorrect dosages, surgeons operating on wrong sites, and various other mistakes made by the hospital’s employees.
It is important to note that some medical professionals are independent contractors, which means they are not direct employees of the hospital. In cases such as these, a medical malpractice lawsuit can be brought against the contractor and not the hospital. However, there are cases in which a court will review the employment arrangement between the hospital and the medical contractor and determine if that contractor was actually paid and treated like an employee. These situations are complicated, so it is best to speak with a lawyer directly about your case.
The second way in which a hospital could be held liable for malpractice is due to direct hospital negligence. Some examples of this can include negligence in hiring employees, failure to supervise employees, failure to fire unsafe employees, failure to keep up with an employee’s licensing requirements and continuing education, failure to adopt proper safety protocols, failure to staff the hospital adequately, and losing or mixing up patient records. Even old and broken down equipment that contributed to patient harm could be considered hospital liability since hospitals are supposed to routinely check and repair their equipment.
If you suffered a medication error, surgical error, or harm as a result of hospital negligence, you may have a legal claim against the hospital for medical malpractice. To discuss your case in greater detail, we would like to offer you a free, no-obligation consultation. Call us today or contact us online, and we will help you understand your rights.
How should I prepare for my first meeting with a lawyer about my potential injury claim?
Whether you were injured by an act of medical negligence or as the result of another driver’s negligence, meeting with an attorney following an injury is one of the first things you need to do. But many people like you have never had to meet with a lawyer before and might not know what to bring to their first meeting. This is why we feel it is important to answer your questions so we can help you as well as others facing the same situation prepare for their first appointment with an attorney.
When preparing to meet with a lawyer you have hired or are thinking about hiring, it is important to come prepared so that you can make the most of the appointment. Here are some ways you can prepare for your first meeting.
What to Bring to Your First Meeting With an Attorney
When you are meeting with an attorney about a car accident claim, you should come prepared with the following:
- Police report. If you were injured in an auto accident, you should request a copy of the incident report filled out by a police officer.
- Auto insurance card. Your attorney can look at your auto insurance coverage to determine if you have uninsured/underinsured motorist coverage or other coverages that may help you collect the maximum compensation.
- Health insurance card. Medical bills can add up quickly following an injury, and it may make sense to have your medical expenses covered by your health insurance benefits until the other side agrees to cover your expenses.
- Evidence. If you have any photographs of your damaged car or the injuries you sustained, bring them with you. Additionally, if you have contact information of witnesses, bring this information.
When you are meeting with an attorney to discuss a possible medical malpractice lawsuit, bring the following documents:
- Medical records. If you have any medical records pertaining to the time just prior to or after the act of malpractice as well as other documents related to the incident, please bring them with you to the meeting.
- Notes. Sometimes information can get foggy in one’s mind as time goes on, so it is important to write down as much information as possible in the moments and days following the incident and bring your notes with you.
By coming prepared to your appointment, the attorney can get a better understanding of your case and will have some of the basic information and necessary documents to start pursuing your claim. Just remember to be honest and tell the attorney the truth about the incident and to come prepared with questions for the attorney as well. If you would like a free consultation with our law firm, please contact us today.
How long does it take to settle a personal injury claim?
This is one of the most common questions all personal injury lawyers receive, and the answer really depends on several factors:
- Are you in a hurry to collect money? If you are, you may be tempted to take the insurance company’s first offer or another lowball offer just to get money in your pocket. If you do this, you may be able to settle your personal injury claim in as little as a few months, but be warned that a quick settlement means you most likely will not get the most money possible in your case. Insurance companies are notorious for trying to settle injury claims quickly before people have the time to really understand the effects of their injuries.
- Are you still healing from your injuries? You should never settle your personal injury claim before a doctor declares you are at your maximum medical recovery point. This is because you may need additional testing, surgeries, physical therapy, and other treatment for your injuries. If you accept a settlement before you have made the best possible recovery, you may be at risk for covering the costs associated with this care.
- Are your injuries debilitating and limiting your ability to work? When injuries following an accident negatively impact a person for life—causing them to lose out on future income and life as they knew it—the settlement should be large. Going after a sizeable settlement may take several years, or it could be relatively quick depending on the circumstances of the case. If an insurance company agrees to a quick settlement and is willing to pay you the policy limits, it may sound great that you will be getting the maximum amount the policy is worth, but you may have another policy that you are entitled to collect on. Unfortunately, the insurance company will not advise you of your rights. This is why it pays to have an experienced injury attorney evaluate your case. Typically, more serious injuries mean more bills and losses suffered, which means a longer case time frame.
- Are you willing to go to court? By going to court, you will undoubtedly be extending the length of your case—sometimes by years. It takes a long time to get a case heard in court and the proceedings can sometimes drag on. In fact, from the date of a crash and related injury to the outcome of a lawsuit, it could take two to three years or more.
If you would like to discuss the specifics of your injury case with our law firm, we would be happy to offer you a free, no-obligation consultation. Please feel free to contact us today.
How long does a medical malpractice claim take to settle?
This is one of the most common questions attorneys get asked, and for good reason. People want to know how long their lives will be interrupted and when they can expect to collect their compensation and move on with their lives.
Although we understand you are looking for a clear-cut answer, the answer to this question will vary from person to person depending on the specifics of the case and if the other side wants to play hard ball. For some victims of medical malpractice—when the evidence is very straightforward—the case can be over in several months; however, the general timeframe may be closer to several years for most people. According to a study published in the New England Journal of Medicine, “the average length of time between the occurrence of the injury and the closure of the claim is five years.”
The long time frame is often the result of several factors. First, cases shouldn’t be settled until the extent of one’s injuries are known. Sometimes just recovering from an incident of medical malpractice can take over a year due to surgery, healing, physical therapy, and even possible adverse outcomes. Second, the other side will rarely admit right away to their wrongdoing, and they will either deny the claim or will provide a low settlement offer. Negotiating to get you a fair settlement can take some time. If a settlement cannot be agreed upon, the case will take longer as it will go to trial. Just getting court dates and going through the process will cause a case to drag on. Sometimes the court will delay the case due to crowded court dockets. In addition, sometimes doctors or medical experts may be busy, which can delay the case.
If you believe you were a victim of medical malpractice, you should contact our office online or by phone and talk to us about the specifics of your case. We may be able to give you more insight as to the timeframe of your case and how we can help you resolve your medical malpractice case as quickly and as thoroughly as possible.
Can a wrongful death lawsuit provide my family with lost retirement benefits my husband would have received?
Following the death of a family member who is the primary breadwinner—or one who contributes financially to the family in a lesser degree—it is common to want to know whether a wrongful death lawsuit will compensate you and your family for the loss of benefits that your loved one would have earned.
Generally, a wrongful death lawsuit would include damages for lost wages that would have been earned by the victim until his or her projected retirement age. Lost income is considered an economic damage that is available in a wrongful death lawsuit. Other economic damages can include loss of benefits such as pension benefits, retirement benefits, other savings, and even medical benefits.
It is important to include all of the lost benefits that are applicable as part of the damages in your claim because retirement benefits and medical benefits can account for half of the damages awarded in wrongful death lawsuits. For instance, if someone died at the age of 45 and he was planning on working until he was 65 years old, the surviving spouse or children would be entitled to receive 20 years of lost income, including projected raises, as well as retirement benefits. If the surviving family member is now left to purchase medical insurance, the lawsuit should also account for that cost as well as the diminished pension funds or other retirement funds.
Losing a family member is devastating enough, and we want to make sure you and your family have the same finances you were accustomed to prior to your loved one’s untimely death. This is why we take our job very seriously when assigning a reasonable value to a wrongful death case. We look at all possible lost benefits and will even bring in an economist and other experts to ensure an appropriate monetary value of your case.
If your loved one died as a result of a drunk driver, negligent motorist, or as a result of medical malpractice, give our law firm a call. We would be honored to help you and your family seek justice and get the compensation you need and deserve.
Can HMOs be legally responsible for negligent doctors?
Doctors aren’t the only ones who are guilty of medical malpractice at times. In fact, health maintenance organizations (also known as HMOs) like Kaiser Permanente, U.S. Healthcare, Prudential and others may be to blame for their part in a patient’s injury or death; however, suing an HMO is more difficult than suing a doctor or hospital.
Generally, HMOs are not liable for the negligent actions of a doctor within their network. However, they should be liable if their actions caused a patient harm. HMOs charge fixed monthly premiums and are able to do so by controlling costs. Some examples of cutting costs can include refusing authorizations for tests, procedures, and hospital admissions in certain situations.
If these decisions cause a patient harm, an HMO will likely deny liability by saying they made a benefit decision and not a medical decision. Yet we all know that HMOs set the guidelines for treatment and have authority over the physicians in their network. Sadly, many patients have been injured by HMOs interfering with recommendations made by their doctors.
If an HMO refused to refer a patient to a specialist or refused a biopsy or other test or procedure and that caused a patient further harm, an HMO should be held accountable. But there have been debates about whether or not HMOs should be held responsible for making poor treatment decisions (i.e., when they deny treatment that causes a patient further injury). Even in these cases, HMOs will argue that they only administer benefits and they are not legally responsible. In turn, they are allowing their doctors to take all of the blame.
If an HMO has denied you medical care or has delayed approving tests and treatments and those denials or delays caused you or a family member harm, you should still speak with a medical malpractice attorney. You may be able to file a malpractice suit against the doctor and hospital involved and then sue the HMO for breach of faith and negligence or for substandard care. Please call our law firm for a free consultation with an attorney skilled in this area of law.
Do I have a case if my air bags didn’t deploy in a crash and I suffered injuries?
When you have a vehicle equipped with air bags, it is reasonable to think the air bags will deploy in an accident and prevent your injuries; however, air bags are not designed to deploy in every type of collision. In fact, when air bags inflate, they can cause harm to occupants, because they inflate at very high speeds. This is why air bags are not intended to deploy in minor fender-benders, rollover accidents, rear-impact collisions, or any type of crash involving very low speeds.
With that said, there are many instances in which air bags malfunction and should have deployed but they failed to, or they unnecessarily deployed when they shouldn’t have, leading to serious injuries for the people involved.
According to the National Highway Traffic Safety Administration (NHTSA), vehicles are equipped with air bag sensors that determine if the air bags should be deployed in a crash. “Air bags are designed to deploy in moderate to severe crashes,” NHTSA reports. The agency defines such as crash as a frontal or near-frontal crash, specifically “crashes that are equivalent to hitting a solid, fixed barrier at 8 to 14 mph or higher.” The direction of the impact, vehicle speeds, and how fast a vehicle decelerates are all factors involved in whether air bags will deploy.
But sometimes air bags deploy (or fail to deploy when they should) because they malfunction. In fact, the recent Takata air bag recall was prompted by faulty air bags that malfunctioned, causing serious injuries and deaths to drivers and passengers.
While air bags are designed to keep people safe in collisions, they can also cause harm if they malfunction or fail to deploy. If one or all of the air bags in your vehicle did not deploy in a crash and you believe they should have deployed, you may have a legal case against the vehicle’s manufacturer.
It will be in your best interest to contact an attorney who will investigate your accident and make sure your vehicle is preserved for evidence. He will know how to build a case for you and walk you through the process. In these cases, computer simulations and expert testimony is often needed to prove liability, and we know how to handle these situations. To discuss your case further, we would be honored to provide you with a free consultation. Please fill out our online contact form or call us today.