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Many lawyers who handle medical malpractice cases work on a “contingency fee” basis. This usually means that the lawyer will not charge the client an hourly rate for his or her services. Instead, the lawyer will be paid a percentage of any recovery that may result from a settlement, award, or judgment. With a contingency fee agreement, the lawyer is paid only if her or she is able to obtain from a settlement, award, or judgment for the client. In addition, many of these lawyers also wait until the resolution of the case to recover for expenses (such as expert fees, discovery costs, and so forth). Thus, financial concerns should not prevent someone who suspects that they may have been the victim of medical malpractice from immediately contacting a qualified lawyer.

Typically, a victim of medical malpractice has a limited period of time (determined by the Regulated Health Professions Act.) in which to file a medical malpractice claim in court, or they are forever barred from succeeding on their claim and from recovering. In some provinces, this time period may be one (1) year or less for some claims. Some provinces, however, allow a much longer period of time within which a claim may be filed. Although exceptions may exist in certain instances, each exception is fact-sensitive and requires the analysis of a qualified lawyer to determine if they are applicable. In addition, given the complexities of medical malpractice cases and the need for a thorough medical and legal analysis before it can be determined that a claim should be filed, waiting until the end of the period in which one must file a claim could deprive the lawyer sufficient time to complete a review of the case in a timely fashion. Anyone who suspects they may be a victim of medical malpractice should thus immediately contact a qualified lawyer.

Unfortunately, there is simply no way to answer this question. Some medical malpractice cases settle prior to trial, and some even settle prior to the filing of a lawsuit. Many, however, do not. When this happens, it can take several years to litigate a case to trial. Occasionally, there may be a need to appeal the results of the trial, thus extending the time required to resolve the case. One should understand from the start that it may take years for a medical malpractice case to reach final resolution.

Determining whether a case has legal merits or should be pursued often depends upon the professional judgment of lawyers and medical experts. It is not uncommon for lawyers and medical experts to disagree over the merits of a particular case. Thus, if a lawyer decides not to take your case and you wish to pursue the matter, it is recommended that you consult with another qualified lawyer.

Each case is unique and turns upon the particular facts and circumstances of the case. Therefore, determining whether one’s case has merit usually involves a multi-step process. First, a qualified lawyer reviews the case to determine whether the type of injury suffered by the patient, and the conduct on the part of the health provider, rise to the level of a medical malpractice claim. At times, this requires review of your medical records, and consultation with physicians and other health care providers to assist in determining whether the actions of the health care providers fell below acceptable medical standards. The case may thus need to be evaluated from both a legal and a medical perspective. Many factors are considered in reaching a decision, including: whether the claim is barred by a statute of limitations, whether the health care provided fell below accepted medical standards, the potential for recovery, and the likelihood of being able to collect upon a judgment if successful. Given the many complex medical and legal issues that will likely be involved, it is difficult for one to reach a conclusion about the merits of the case before the case is thoroughly reviewed and analyzed by a qualified lawyer. Therefore, anyone who suspects that they may have been the victim of medical malpractice should consult a qualified lawyer immediately.

Typically, the first step in pursuing a medical malpractice claim occurs when you suspect that you or someone you know is the victim of medical malpractice. Although not every bad medical result is due to medical malpractice, if you suspect or have a feeling that something was wrong with the medical services, you should consult a qualified lawyer. The lawyer will review your case to determine whether the conduct on the part of the health provider(s), and the type of injury your child and you suffered as a result of the treatment provided during pregnancy and labor, rise to the level of a medical malpractice claim. This process can at times be lengthy since it may require review of medical records, and consultation with physicians and other health care professionals to assist in determining whether the actions of your health care providers fell below accepted medical standards.

If the facts of the case support a medical malpractice case, it may be appropriate to file the claim in court and commence the lawsuit. This is due to the fact that medical malpractice claims rarely settle unless filed in court, and even then, many of the claims that are filed in court go to trial. Once the case is filed in court, there are a number of steps that typically take place in order for both sides to properly develop the merits of their case. These steps include the exchange of documents and of answers to written questions, and examinations for discovery. Your child may also be required to undergo further physical examinations and testing. Once these and other steps are completed, the case is assigned a trial date by the court. All cases should be prepared as though the case will need to go to trial. Then, if the case does not settle, you and your lawyer will be in the best position possible to try the case.

Generally, a medical malpractice claim may be pursued against the health care providers who rendered negligent medical or health care to a patient. This may include, for example, physicians, nurses and hospitals. In certain circumstances, the employers of the health care providers may also be liable for their negligent employees. In such cases, medical malpractice claims may also be brought against the partnerships, professional associations, and corporations that employed the negligent health care provider(s) at the time of the malpractice.

Medical malpractice generally refers to treatment or lack of treatment on the part of a health care provider which is a departure from accepted standards of medical or health care and which causes harm or injury to a patient. Medical malpractice often results from misdiagnosis, improper treatment, failure to treat, delay in treatment, failure to perform appropriate follow-up, and prescription errors.

It’s very common to be upset at your lawyer after your personal injury lawsuit is filed because such a long time passes between the time the lawsuit is started and any settlement or trial. In most states, the other person’s insurance company owes you no duty to settle quickly. Your case can be settled before trial or drag on long after the trial is over.

The insurance company knows you’re in a hurry to settle your case, and uses this knowledge to try to get you to settle for less. Here’s a partial list of some of the things that can happen to slow down your case:

“Discovery”
This is the insurance company’s opportunity to “discover” everything about you and the accident. You’ll get lots of written questions to answer under oath. You’ll have to produce documents and medical records, plus admit or deny specific written statements put to you.

You and your lawyer will need to gather up all the medical records, bills and other documentation of your injuries. Some of these must be obtained in a specific way to make them admissible at trial. This often takes time and money.

Depositions
You’ll be asked questions under oath, with a court reporter typing up every word you say. The insurance company’s lawyer will ask you in great detail about your injuries, your medical history, the accident itself and your treatment. You’ll likely to be subjected to grilling over the smallest of details.

Motion Hearings
The insurance company lawyers may have what feels like an endless capacity to file motions and go to hearings on motions. Some of these motions are unimportant to you, but some may be critical to your case.

Mediation
Many courts are forcing lawyers to mediate or arbitrate cases prior to trial. Some courts won’t even give you a trial date until you do so. Mediation is typically a settlement conference without the formalities of court. A neutral party will try to help the parties reach a middle ground. It’s not usually “binding” — meaning the parties are stuck with the result — unless the parties reach an agreement and write up a settlement agreement.

Arbitration is a different breed. It’s often a binding “mini-trial” of the case in front of an arbitrator or panel of judges who listen to an informal presentation of the matters involved in your case.

Trial
If your case doesn’t settle, it must go to trial, where six or twelve strangers will decide what your injury is worth.

Trials are scheduled on the court’s schedule, not the lawyers’ schedule. Cases sometimes take years to be scheduled for trial, especially in some major urban areas. Having a case that is two or three years old before going to trial isn’t unusual.

And once you have a trial, your case may not be over. There may be an appeal and further motions and hearings.

Collection Issues
You may also have difficulty collecting from the insurance company or the person responsible for your injury. The insurance lawyer will have to have a check or draft issued by the company. And before they send you money, you’ll be required to sign a release document and file some sort of dismissal motion. These things also delay payment. Once the money comes in, your lawyer will have to run the check through his or her trust account. If it’s an out-of-state check, there will be another delay of a week to ten days before the funds are disbursed. And your lawyer will be deducting litigation expenses such as deposition fees, transcript fees, filing fees, service of process costs, medical records costs, costs involved in documenting medical bills, costs of hiring expert witnesses, costs of paying treating doctors to testify, subpoena charges, lawyer’s fees, and any legally-required medical bills or liens.

Litigation can eat up a lot of time and money. Settlements after litigation can be very disappointing after spending years in battle. Sometimes it’s better to settle before trial for less than to go through the process and end up with a small settlement or perhaps a bad result at trial.

A lot of people have the impression that if something goes wrong with a medical procedure, it’s easy to sue your doctor for big bucks. But medical malpractice cases are, in fact, extremely tough to win. You need to consider three factors to decide if your case is worth pursuing: liability, damages and who would pay those damages.

The Basics
To determine if someone is “liable” – that is, legally responsible, for your injuries, you need to figure out if a health care provider was negligent and if so, whether that negligence caused your injury. Just because your case turned out poorly doesn’t necessarily mean that a doctor was negligent. The key factors in determining negligence are the accepted standard of care, whether that standard was followed and, if not, whether not following that standard caused the injury.

Negligence can occur at various stages. A health care provider may misdiagnose a problem, or fail to treat the injury or illness properly or administer the wrong medication. A doctor can also be held liable for failing to adequately inform a patient about the risks of a procedure or about alternative treatments.

Even if you can prove that a doctor was negligent, you don’t have a case unless you can document that the negligence caused your injury or worsened your condition. In a case involving misdiagnosis of cancer that caused a patient’s death, for instance, the health care provider may argue that the illness was terminal and that nothing could have been done anyway.

If you establish liability you are entitled to damages, which can include compensation for medical bills, lost wages and pain and suffering. The damages may cover losses you’ve already suffered as well as future medical bills and lost wages.

Damages vary widely depending on each person’s situation – even two 42-year-old women who both lose their right index fingers through botched surgical procedures may see very different outcomes. The amount of damages you receive depends on how the injury affects your earning potential and quality of life. So a concert pianist and an avid bowler may get more for a missing finger than a lawyer and confirmed couch potato whose life won’t be as disrupted. A good trial lawyer who takes a look at the witnesses, the individual and the medical circumstances can estimate the potential damage awards.

Damages must be substantial for lawyers to take on a case, because of the huge expenses involved – it’s not unusual for a lawyer to dole out $30,000 to $50,000 before the case is resolved. Many medical malpractice cases require two or three doctors to serve as expert witnesses to support the injured patient’s case – doctors who may charge upwards of $1,500 an hour to review records or answer attorneys’ questions.

Malpractice claims tend to be a fight to the death; they’re settled less often than most other cases, which means more time and expense.

Even if you decide you can establish liability, the person or organization you’re suing must have the resources to pay damages for your case to be worthwhile. Usually, this isn’t an issue in the case of a doctor, hospital or clinic. The vast majority of health care providers are insured and the insurance company steps in to cover the loss in the event of a medical malpractice claim.

Keep in mind that you have a deadline to file your claim. The statute of limitations varies by state but is typically about two years. That time often starts running at the moment of the negligent act, but other factors may come into play, such as when you learned of the negligence and when you stopped receiving treatment. You also may have to consider other filing deadlines if, for instance, your case involves treatment by a government agency, such as a county hospital.

Getting Help
Medical malpractice cases are complicated, risky, expensive time-suckers – lawyers who handle them turn down a lot more cases than they accept. So finding someone who’s willing and capable of handling your case may take some time. Here’s what you need to consider:

• Check out the lawyer’s track record. Ask what percentage of their cases are medical malpractice; the higher the better. Also find out what portion go to trial rather than settle. If the lawyer usually settles, the insurance companies will know that and negotiate accordingly.
• Evaluate references. Do lawyers you respect recommend the attorney? Are past clients satisfied? If privacy concerns prevent the lawyer from sharing the names of their clients, consult the local newspaper archives; you’ll probably be able to dig up a few names of clients there.
• How about professional activities? Your lawyer should, of course, belong to the national or local association of trial lawyers. But it doesn’t take much to pay dues and join – check out whether he or she is an active member or holds leadership roles that suggest your lawyer has the respect of their peers.
• Is the firm solid? These cases require lawyers to dish out a pile of money up front for things such as experts and medical research. Make sure they’ve got the resources to support that kind of outlay.

If you’re having a hard time getting a lawyer, consider rounding up your medical records and having them reviewed by a health care professional. There are a number of good, caring nurses willing to help. Coming to a lawyer with the preliminary investigation already done could be a good way to get him or her to take your case.

But if you keep hearing “Great case, but I don’t have time,” guess what? You might not have such a great case. Sometimes lawyers say that instead of arguing about the merits because it’ll get you off the phone faster. It may be time to drop it.

What’s Next?
Malpractice cases tend to take a long time. They require lots of research, and insurance companies and providers are generally reluctant to settle because they typically win. They also know they can weed out the small cases by making them too costly to pursue. If you decide to pursue the case there are some things you should expect along the way.

Regardless of how seriously you’ve been injured, it’s unlikely your lawyer can tell you how successful your case will be straight off. That requires review of the medical records and consultations with experts.

About 90 percent of all cases settle before they go to trial. Although that rate is somewhat lower with medical malpractice cases, there’s still a chance your case will settle.

In some states, you may be required to first try to resolve your case through mediation or arbitration. That can mean anything from sitting in front of a panel in a hotel conference room to meeting with an arbitrator in a courtroom. In some instances, the process may result in a speedier, cheaper resolution. In others, it’s a waste of time. Your lawyer or other people who have pursued similar cases can tell you what to expect.

If a lawyer agrees to take your case, it will be probably be handled on a contingency basis, which means you might not have to pay anything up front, but your lawyer will expect anywhere from 30 percent to 50 percent of whatever damages you may receive.

Keep in mind, though, that regardless of whether your claim is successful, in some states you may be liable for the significant up-front costs of acquiring your records and consulting with experts. Make sure you agree at your first meeting on how to handle those expenses.

During your first meeting, you’ll be asked to sign release forms giving your lawyer and experts access to your medical records. Generally, your lawyer will have a medical professional – many times a nurse consultant – review the case to determine if there’s evidence of malpractice. If there is, the next step is to retain a specialist who can testify if the case goes to court.

Your case may continue for years, especially if it goes to trial and is appealed. During this time, there may be periods during which you hear from your lawyer or law office staff every day and there may be several week stretches where you hear nothing at all while both sides wait for court dates or filing deadlines.

If you’re suing your regular doctor, you’ll want to talk with your lawyer about whether you want to continue treatment at that clinic or find someplace else. The most important consideration, of course, is ensuring you get the best health care possible.

According to a report by the Institute of Medicine, medical errors are responsible for at least 60,000 deaths each year in the United States and possibly as many as 78,000 each year. The statistic are correspondingly similar in Canada. The following are among the more common forms of negligence or medical malpractice by physicians in diagnosing and/or treating fetal distress:

• Failing to perform appropriate monitoring of the fetus;
• Misinterpreting the results of monitoring tests;
• Failing to identify signs of fetal distress;
• Failing to recommend appropriate treatment options for the complications causing fetal distress;
• Failing to order or perform a cesarean in the presence of indicators that the fetus is in distress and that a cesarean is required;
• Failing to follow-up with the patient.

The above are only a few examples and are by no means intended to be an exhaustive list of acts of malpractice. If you suspect that your doctor, nurse, or other health care provider failed to detect and/or properly treat your child’s fetal distress, you should contact a competent lawyer immediately.

A victim of medical malpractice only has a limited period of time (determined by Statutes of Limitations) in which to file a medical malpractice claim in court, or they are forever barred from succeeding on their claim and from recovering. Given the complexities of medical malpractice cases and the need for a thorough medical and legal analysis before it can be determined that a claim should be filed, you must contact an lawyer about your case with sufficient time to allow the lawyer to complete a review of the case in a timely fashion. Anyone who suspects they may be a victim of medical malpractice should thus immediately contact a qualified lawyer.

The probability that a baby will suffer from an injury such as permanent brain damage increases the longer the unborn baby experiences fetal distress during pregnancy and labor. Any undue delay in diagnosing or treating fetal distress can have tragic consequences. Unfortunately, too often proper monitoring is not offered or performed, warning signs are ignored, and treatment is delayed. The following are among the more common forms of negligence or medical malpractice by physicians in diagnosing and/or treating fetal distress:

• Failing to perform appropriate monitoring of the fetus;
• Misinterpreting the results of monitoring tests;
• Failing to identify signs of fetal distress;
• Failing to recommend appropriate treatment options for the complications causing fetal distress;
• Failing to order or perform a cesarean in the presence of indicators that the fetus is in distress and that a cesarean is required;
• Failing to follow-up with the patient.

The above are only examples and are by no means intended to be an exhaustive list of acts of malpractice.