Before going to a medical malpractice law firm to discuss the possibility of starting a claim, you may be wondering whether you have the basis for a case. It's helpful to understand what malpractice is and isn't prior to seeking compensation, and it's wise to understand how settlements are typically arrived at. This article will take a look at some of the basic issues every medical malpractice lawyer has to cover with a new client.
The Reasonableness Standard
One of the first questions that comes up in most cases is whether a reasonable professional would consider the conduct to be unreasonably outside the norms of the trade. For example, a dentist who favored performing a root canal over using a medicated filling to address deep caries in a tooth likely hasn't committed malpractice. The root canal might be seen as a more aggressive procedure, but most practitioners can understand why another doctor would go that direction. Conversely, a dentist who gave a patient a heavy sedative for a filling might be accused of malpractice because most doctors would consider that extreme.
Level of Harm
In the previous example of a root canal, the level of harm would have to be determined. If a person experienced serious discomfort, even for a few weeks, that's likely not to be enough harm to justify a claim. Were the doctor to have drilled into the jaw, though, that could lead to pain that lasts for years and might require oral surgery to fix.
The level of harm necessary to bring a malpractice claim is always a bit fuzzy. Some things are generally accepted as highly harmful, such as facial disfigurement, diminished physical capacity, or the loss of the ability to perform one's job. For example, a doctor who accidentally cut a key nerve in a patient's hand during a procedure might be held liable due to both the diminished use of the hand and the damage to the person's earning capacity.
Who to Seek Damages From
Modern medical organizations have rather knotted up relationships with their practitioners and staff members. Generally, a medical malpractice lawyer wants to go after the best-insured party involved in a case. That means a person who suffered due to a botched surgery might be more focused on suing the hospital as opposed to the doctor. Your attorney will submit a letter of intent, and the insurance company will appoint an adjuster to evaluate the claim to start the process.