Medical Malpractice FAQs

According to a recent article in the Washington Post, “Pockets of medical excellence dot the landscape, but at least 100,000 people die each year from infections they acquired in the hospital, while 1.5 million are harmed by medication errors. Of 37 industrialized nations, the United States ranks 29th in infant mortality and among the world’s worst on measures such as obesity, heart disease and preventable deaths.”

Q. What is Medical Malpractice?

A. Medical malpractice is generally defined as the failure of a health care provider to meet the applicable standard of care for a particular procedure or medical situation (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 in his or her field of medicine and that the 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 Erb’s palsy, among others), nursing home negligence 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. In Virginia, Medical Malpractice cases generally have a two-year statute of limitations that begins running on the date you were injured. 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 of 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 aware of potential claims against them. It is important not to be hostile or adversarial towards them or to make any unsubstantiated allegations in collecting your medical 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.

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 your case goes to 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.

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