New Jersey Medical Malpractice Information from New Jersey Attorneys

Medical Malpractice Information - Frequently Asked Questions

2. How can you determine if a doctor, hospital or other healthcare provider has committed medical malpractice?

3. How do you know if you have a case?

4. How long do you have to bring a medical malpractice lawsuit?

5. If you signed a waiver or consent form, have you waived your rights?

6. What is Lack of Informed Consent?

7. Can anything be recovered if medical malpractice causes a patient to die?

8. What steps does an experienced medical malpractice attorney take to properly and fairly evaluate a potential claim?

9. Can a medical malpractice law firm handle highly specialized areas of medicine?

10. What should you bring to the first meeting?

11. How does an attorney find experts to help with your case?

12. Where can you get information about your doctor?

13. How can you find out if your doctor has had any medical malpractice claims?

14. Will your time and effort spent in pursuing a medical malpractice claim be worth it?

15. Is there a limit on how much a person can recover for a malpractice claim?

16. Will you be offered a settlement?

17. How are the attorney fees paid?

1. What is medical malpractice?

Medical malpractice occurs when a physician fails to provide appropriate healthcare according to established medical standards and, as a result of that failure, causes injury to the patient that otherwise would not have occurred. A physician can make a medical mistake by doing something that should not be done, or by failing to do something that should be done.

2. How can you determine if a doctor, hospital or other healthcare provider has committed medical malpractice?

The determination of medical malpractice requires a thorough evaluation of all the medical records by physicians, nurses or other healthcare providers of similar background and training as the doctors whose treatment is being reviewed. The experts must determine that the doctors and other providers failed to provide care according to accepted standards of medicine or surgery. Medical expert testimony is required to both prove errors on the part of the physician and the additional injuries caused by the error that would not have occurred had care been provided appropriately.

3. How do you know if you have a case?

In order for you to know if you have a medical malpractice claim, you need to have the assistance of an experienced medical malpractice law firm to evaluate both the legal and medical aspects of your potential claim. The attorney must determine whether the injury, or the discovery of the injury, is sufficiently recent in time that it is not barred by the Statute of Limitations defense. Next, the attorney must obtain all relevant medical records, organize them and analyze them to see if the medical facts support the claim. If the medical facts appear to support the claim, the attorney must select knowledgeable and articulate experts, who are willing to review the potential case, give an honest opinion on the physician's conduct and are willing to testify at Trial in support of your claim. Only after your attorney has obtained the necessary expert testimony to support claims of medical negligence and the relationship of that negligence to your injuries, do you know that you have a case.

4. How long do you have to bring a medical malpractice lawsuit?

The period time within which an injured patient can bring a medical malpractice lawsuit is called the Statute of Limitations. The Statute of Limitations for bringing a medical malpractice lawsuit and the special rules that apply vary from state to state and the type of defendant.

5. If you signed a waiver or consent form, have you waived your rights?

All medical treatment must be provided with the patient's informed consent, except in extraordinary emergency situations. Patients sign a general consent form for treatment upon admission to a hospital and a specific consent form prior to having an invasive procedure or operation performed upon them. The specific consent form for a procedure or operation must be signed by the patient indicating that the doctor has explained the nature of the patient's problem, the suggested treatment as well as alternative treatments, the risks attendant to those various treatments and that the patient has had an opportunity to ask questions before consenting to the recommended treatment. Signing a consent form does not waive a patient's right to bring a medical malpractice claim if the doctor fails to provide medical care in accordance with accepted medical practice.

6. What is Lack of Informed Consent?

Lack of Informed Consent occurs when the patient develops an injury during a medical procedure or operation that is a risk recognized by the medical community but undisclosed to the patient of the procedure and, had the patient been advised of that risk beforehand, the patient would have not consented to the treatment that was performed but would have chosen one of the alternatives. In most states, the determination as to whether a patient would have chosen the alternative treatment if the undisclosed risk was known is determined by the jury based on what the jury feels a reasonable patient would have done if the withheld information had been given to the patient.

7. Can anything be recovered if medical malpractice causes a patient to die?

Yes. This is called a Wrongful Death action. Wrongful Death actions are often brought in connection with medical malpractice claims, when the patient dies as a result of the medical negligence.

8. What steps does an experienced medical malpractice attorney take to properly and fairly evaluate a potential claim?

An experienced medical malpractice law firm first takes a detailed history from the client to learn all of the medical treatment the individual has received, so that the necessary medical records can be obtained. Next, assuming that the medical malpractice attorney believes that there is a case to pursue, all of the relevant medical records must be obtained from the providers. After obtaining the records, the records are organized according to provider and are analyzed by the attorney or by an experienced Legal Nurse Consultant and/or physician working with that attorney. Based on a medical review of the records, the attorney must make a determination as to what expert medical witnesses are needed to prove plaintiff's case. Once that is determined, the records are forwarded to those medical expert witnesses, who charge a fee for review of the records. Upon receipt of a positive opinion from a medical expert witness that the defendant or defendants deviated from accepted standards of care and thereby were medically negligent AND the receipt of a medical expert witness's testimony that the medical negligence caused injury which otherwise would not have occurred, then the attorney knows that there is a viable medical malpractice claim.

9. Can a medical malpractice law firm handle highly specialized areas of medicine?

It is precisely because a medical malpractice law firm regularly works with medical experts in highly specialized areas of medicine, that a medical malpractice law firm can understand, organize and present complex medical facts to a judge and jury. A medical malpractice law firm has many contacts with expert witnesses, often in specialized areas of medicine, and is able to bring vast resources together for the benefit of the client.

10. What information should you bring to the first meeting?

If your case is a medical malpractice case, you should bring with you any and all medical records that you have as well, as a list of all physicians and hospitals that you have visited over the course of last ten years. You should also bring any x-rays or other imaging films in your possession, as well as any photographs that you may have which would be evidence of your injuries. If your matter is an automobile negligence case, you should also bring a copy of your automobile insurance policy and declaration form. The declaration form is the page of your automobile insurance policy that provides the limits of your coverage. In addition, you should bring a copy of the police report from your accident and any photographs of the vehicles involved. If your case involves a product-related injury, please bring all of your medical records, photographs related to your injuries, any documents related to the investigation of your injury and any available photographs of the product as well as any product information you may have at your disposal.

11. How does an attorney find experts to help with your case?

Experienced medical malpractice attorneys identify their experts through a number of different sources. These experts include accomplished certified experts in medicine and science that can address cases involving claims of medical malpractice negligence and defective products. Experienced medical malpractice attorneys know numerous and very qualified experts who can provide an unbiased review and analysis for a variety of different claims.

12. Where can you get information about your doctor?

You can obtain information about your doctor from the State Board of Medical Examiners or your state's equivalent certifying agency. Other sources of information about your doctor may be available on the Internet. You can also frequently obtain information from the medical society of your state and the hospital where your doctor practices. One website that provides hospital and physician ratings is www.healthgrades.com.

13. How can you find out if your doctor has had any medical malpractice claims?

Unfortunately, unless your doctor has been the subject of discipline by your state's licensing board, it is often not possible to determine the nature or the number of medical malpractice claims he or she has had, except in the midst of a lawsuit. Some states, such as Massachusetts, have created an on-line database, accessible to the public, with medical malpractice information. Others have not done so yet. . For a list of addresses and phone numbers of State Medical and Dental Boards from whom you obtain information about disciplinary actions taken against doctors in your state, please see National Practitioner Data Bank List of State Medical and Dental Boards.

14. Will your time and effort spent in pursuing a medical malpractice claim be worth it?

Experienced medical malpractice attorneys usually work together with in-house medical personnel and independent medical reviewers, so as to screen-out those cases that are not likely to result in proofs of a departure from standard medical practice. If an experienced malpractice attorney is prepared to undertake your representation, it is generally a case that the attorney believes is worth your time and effort. The cost of bringing a medical malpractice case requires that resources be spent on medical malpractice cases with a likelihood of success and significant amount financial recovery.

15. Is there a limit on how much a person can recover for a malpractice claim?

Some states have caps on damages that a plaintiff can receive for pain and suffering; thankfully, many states do not. To this end, attorneys who represent injured patients remain vigilant in protecting their right to recover for medical negligence from unwarranted economic limitations.

16. Will you be offered a settlement?

While a number of the cases handled by experienced malpractice attorneys result in a settlement, medical malpractice actions are much less frequently the subject of settlements than other types of personal injury cases. One of the main reasons for the lower settlement rate for medical malpractice claims in many states is that the defendant-physician must agree and consent to any settlement.

17. How are the attorney fees paid?

Most malpractice attorneys offer to represent clients in personal injury matters, including medical malpractice and hospital malpractice, on a contingency fee basis. A contingency fee basis is one in which the attorney's fee is contingent upon a successful outcome, via jury verdict or settlement. The attorney receives a percentage of our client's successful award as the attorney's fee. In many states, the state legislature and courts determine contingency fee percentages. However, the disbursements and/or funds needed to investigate and pursue these cases are the obligation of the client. In certain matters, a client may request and an attorney may provide representation in a medical malpractice action on a fee for service basis or hourly rate.