QUESTIONS & ANSWERS
Medical Malpractice FAQs
What is Medical Malpractice?
What is the "Standard of Care"?
Why is an expert witness necessary?
What does it cost to pursue a claim?
What damages can be recovered?
Will a lawsuit be necessary?
What is Medical Malpractice?
Medical negligence, or malpractice, occurs when a
health care provider's diagnosis or treatment fails to
meet the standard of care due a patient under the same
or similar circumstances and in the same or a similar
community. Such a failure may be referred to as a
"deviation from the standard of care."
Medical malpractice claims are within the broad
definition of personal injury claims, or
"torts," and most of the same legal rules that
apply to other types of personal injury or wrongful
death claims also apply to medical malpractice claims.
Simply because there was an unfortunate result from a
course of medical treatment, it does not always follow
that malpractice occurred. Medical providers do not
insure results, and are not legally liable for the
reasonable exercise of medical judgment, even when a
decision turns out to have been incorrect.
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What is the "Standard of
Care"?
Often, there are no written "standards"
applicable to medical treatment. However, reference to
medical textbooks, articles in medical journals, and
other sources provide guidelines which are useful in
determining whether malpractice has occurred in a given
case. Ultimately, however, because of the nature of
medical practice and requirements of North Carolina
statutes, the case must be reviewed by a qualified
"expert," who then advises the attorney
whether or not there has been a departure from the
standard of care.
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Why is an expert witness necessary?
North Carolina law requires that a complaint
alleging medical malpractice certify that the case has
been reviewed by a qualified expert witness who is
willing to testify that there has been negligence in the
matter. Aside from this requirement, such a medical
review is necessary because lay people are not usually
in a position to know whether or not a particular action
amounts to malpractice.
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What does it cost to pursue a claim?
The requirement of expert witnesses makes medical
malpractice cases among the most expensive types of
cases to pursue. Not only must the plaintiff's experts
be paid, if a lawsuit is necessary the defendants will
also have expert witnesses. Often, these witnesses, or
at least some of them, will be out of state. The
witnesses must be paid for their time in depositions and
there are travel and other expenses connected with the
depositions.
Of course, there are also other expenses, such as
obtaining medical records, x-rays or other diagnostic
studies, and trial exhibits which contribute to the
overall cost of the case.
Because of the high cost of these cases, and the time
necessary to be spent on them, many otherwise
meritorious claims cannot be pursued. Unless the
injuries are significant the cost of the case may
outweigh the potential recovery. The typical medical
malpractice claim pursued through jury trial may involve
out of pocket expenses of anywhere from $20,000 to
$50,000, and sometimes more.
Most malpractice attorneys will advance most, if not
all, of these expenses with an agreement that they will
be repaid out of any recovery.
Attorney fees are contingent on the outcome of the
matter. If there is no recovery, there is no fee.
The potential client should insist on a full and frank
discussion of fees and expenses at the time of the
initial consultation with a lawyer.
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What damages can be recovered?
The elements of damages for which the law allows
recovery are the same in medical malpractice cases as in
any other personal injury claim. These include medical
expenses, lost earnings and compensation for pain and
suffering.
Damages are recovered only for those injuries which are
directly attributable to the negligence alleged. If an
illness or injury would have occurred even without the
malpractice, or if the injury is discovered and
corrected in time so that the injured person is no worse
off than he or she would be without the negligence
having occurred, then there is no actionable claim. For
example, a doctor may have failed to discover a cancer
during a diagnostic procedure, but the cancer is later
discovered. If the cancer is discovered before it has
grown to the point that the medical outcome is changed,
then there probably is no case.
Sometimes, even a negligent failure to diagnose a
condition will not give rise to a claim. For example, if
a doctor fails to diagnose a condition for which there
is no known successful treatment or cure, such as
pancreatic cancer, the patient is likely to die
regardless of the diagnosis and there would be no claim.
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Will a lawsuit be necessary?
It is very likely that, in order to recover, a
lawsuit will have to be filed. Frequently, the doctor's
insurance policy will prevent a settlement without the
doctor's consent. If the doctor believes he or she has
done nothing wrong, settlement is unlikely. Also,
because most of the cases that do go to trial are won by
the doctor or hospital, the insurance companies will not
settle without a lawsuit so that they can make a better
assessment of the strength of the case by taking the
depositions of plaintiff's expert witnesses.
However, many cases do settle without actually going to
trial. If the insurance company perceives a risk that
plaintiff will win, it may want to settle.
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For more information, please see our Medical
Malpractice page.
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