Q.
What is Medical Malpractice?
A.
Medical malpractice is generally defined as the failure
of a health care provider to meet the standard of care for
a particular procedure (negligence), which then results
in a foreseeable injury to a patient (causation). It is
important to keep in mind that a bad outcome does not necessarily
mean that medical malpractice or negligence has occurred.
It must be proven that the health care provider did not
meet the generally recognized standard of care and that
their failure to do so directly resulted in harm to the
patient. Some examples of medical malpractice cases include:
surgical errors, failure to diagnose or properly treat certain
conditions, birth injuries (shoulder dystocia cerebral palsy
or Erbs palsy, among others), nursing home negligence or
abuse, or prescription drug errors.
Q.
What is a statute of limitations in a medical malpractice
case?
A.
A statute of limitations is the time limit established by
law within which you must file your case or be forever barred
from doing so. Medical Malpractice cases generally have
a two-year statute of limitations that begins running on
the date you were injured. Alternatively, the statute of
limitations may be calculated two years from the date you
last treated with the doctor in question. It is important
that you consult an attorney as soon as you believe you
may have been injured or become aware that you may have
been injured, as various factors may impact your statute
of limitations. The statute if limitations for a minor child
or a person under a disability may be extended, so contact
a lawyer to advise you about a particular claim.
Q.
What information should I have about the incident?
A.
All of it. Any incident reports, medical records, witness
names and any other related documents can be vital to your
case. Also, if your injury is visible, photographs or video
may be helpful.
Q.
Do I have to pay my insurance company back if I am awarded
a settlement?
A.
In some circumstances, insurance companies may assert liens
against bills that they have paid on your behalf. What that
means is that by law they are entitled to be paid back for
medical bills that they have paid for you if they have asserted
a lien and a settlement is reached. If you are covered by
Medicaid, Medicare, Tricare or Workers Compensation at the
time of the accident, chances are that you will have to pay
the government or insurance company back for any funds they
paid on your behalf to medical providers. This is also the
case with some private health insurance. That is why it is
very important that you retain all “Explanation of Benefits”
forms or statements for services that you may receive from
medical providers. Understand that in the event of a settlement
your attorney may be required by law to pay in full any outstanding
liens for which they have received notice before you receive
any settlement proceeds. Ultimately, you are responsible for
the payment of your medical bills.
Q.
Should I get my own medical records?
A.
It is usually a good idea for you to obtain your own records
if you can. You will be asked to fill out a release form and
to pay for the duplication of the records. In most cases,
you are entitled to receive a copy of your records within
two weeks of your request as long as you have filled out the
proper paperwork and paid the requested fee. Keep in mind
that medical providers are always very aware of potential
claims against them. It is important to not be hostile or
adversarial towards them or to make any unsubstantiated allegations
in collecting information.
Q.
Do I have to have expert witnesses in a medical malpractice
case?
A.
Yes. Virginia requires that an expert qualified in the medical
specialty in question certify that he or she believes that
medical malpractice has occurred in your case. A lawsuit cannot
be served unless such an expert has made this certification.
Although you may believe that you have been harmed as a result
of medical negligence, you cannot bring an action against
a healthcare provider unless you have an expert who will testify
that medical malpractice occurred. A case can be filed to
preserve the statute of limitations before expert certification
is obtained, but cannot be served on the defendant healthcare
providers without certification from the appropriate expert.
Q.
How long do Medical Malpractice cases take to resolve?
A.
Although it varies, it is important to understand before beginning
the process that it can be a lengthy one. It is not unusual
to expect these types of cases to take 1-2 years to resolve.
In birth injury cases, it may be even longer. The jurisdiction,
or locality where you bring your case , may have some bearing
on how long the case will take before a trial.
Q.
Who can file a Medical Malpractice claim?
A. Anyone who has legal standing may file a claim if all other
necessary conditions are met (statute date and expert certification,
among others). That means that if you were the person injured,
you have legal standing. In those cases where a person has
died and Medical Malpractice is alleged, whoever is named
as executor or administrator of that person’s estate
may bring a claim. If the individual in question has no will
(dies “intestate”), the next of kin may petition
the circuit court in the deceased’s jurisdiction to
be qualified as the administrator. Contact the appropriate
circuit court or an attorney for more information.
¨
