FAQ About Medical Malpractice

A physician or other healthcare provider is required to perform in accordance with what is known as the “standard of care.” Medical negligence is the failure to use reasonable care under the circumstances existing in the particular case. The standard of care is usually defined by other healthcare providers in the same field. For example, if you claim that an emergency room physician committed medical negligence, then your attorney will retain an expert in emergency room medicine to review the facts and circumstances of your case and give an opinion as to whether the standard of care was met by the physician in question

In Virginia, the statute of limitations for filing your medical negligence case is two years from the time of the alleged negligence that caused the patient injury or damage. In a situation where death results from medical negligence, the lawsuit is called a wrongful death claim and must be filed within two years of the death of the patient. These are general parameters. Virginia has additional rules for minors, for cases where an object, (e.g., a sponge, needle or lap towel) is left inside the patient and also for failure to diagnose cancer cases. You should consult an experienced medical negligence attorney at Pierce & Thornton immediately if you believe that a medical negligence case needs to be investigated.

Medical malpractice cases are defended vigorously by the healthcare provider’s insurance company. This is true for a number of reasons. Healthcare providers (doctors, nurses, hospitals) are subject to a reporting requirement that requires any settlement or verdict rendered against them to be reported to a national databank. This national databank is accessible to insurance carriers and therefore directly affects their insurance premiums. Lawyers for the healthcare providers are able to find other medical expert doctors or nurses who will defend their care, claiming that it was “reasonable care under the circumstances.” Insurance companies that pay for the defense of a medical malpractice case have deep pockets and are willing and able to fight a “war of attrition” in which they will try to outlast the patient and his attorney in the litigation process.

Medical negligence cases will settle if they are strong cases on both the negligence and damages issues. However, medical negligence cases rarely, if ever, settle without first having to file a lawsuit, called a Complaint, which then starts the litigation process. Typically, depositions (taking sworn testimony from the parties and witnesses in the case) must be conducted, expert witnesses must be retained and have their depositions taken, and then the healthcare provider and defense counsel are able to evaluate whether they are likely to win or lose the case if it proceeds to trial. In Virginia, depending on the court you are in, the time from the initial filing of the lawsuit until the trial date typically ranges somewhere in the 12 to 18 month time frame. This is not an exact timeline because continuances can occur for a number of reasons, and some courts have higher caseloads which means that the trial date can occur later.

Medical malpractice cases, by their very nature, are expensive to pursue. To successfully bring a case, your lawyer will have to consult with medical experts in the medical subspecialty at issue. For example, if your case is against an Ob/Gyn, then your attorney will need to consult with an Ob/Gyn about the care that was rendered to the patient in the potential case. The medical expert charges by the hour for his/her time spent in reviewing the records and consulting with your attorney. The hourly fees that the doctors charge can range anywhere from $250 to $600 per hour. Once the case gets underway, the expert witness also has to review all of the deposition testimony so that he/she is aware of what the witnesses say happened in the case. This costs additional money. This is why it is important to choose an attorney who can gauge, based on his experience and knowledge in medical negligence cases, whether your case is one that warrants the expenses associated with pursuing the case.

Trial experience, track record and reputation. Since medical malpractice cases are perhaps the most expensive to pursue and are vigorously defended, you need to choose an attorney who has a proven track record of obtaining favorable results by way of settlement or verdict for his or her clients. Insurance companies know who the experienced and proven trial lawyers are. Unlike other types of litigation where the lawyer can reasonably expect a case to settle, you must choose a medical malpractice attorney who takes on your case with the full understanding that it may have to be taken before a jury and tried. This is the way a medical malpractice case must be prepared and prosecuted because to do otherwise is a recipe for failure. At Pierce & Thornton, every medical malpractice case we take is done so with the understanding that we may ultimately be presenting it to a jury. Every detail, every medical issue and fact of the case must be thoroughly investigated and pursued. That is what we will do for you at Pierce & Thornton.