Medical Malpractice FAQ

Attorney David Randolph Smith is a Board Certified Specialist in Medical Malpractice and Civil Litigation and will evaluate your case free of charge. Call us at: 800-394-2119.

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Here are some of the most frequently asked questions about medical malpractice litigation:

What is Medical Malpractice?

Medical malpractice is medical negligence and occurs when a health care provider (physician, hospital, nurse) violates the standard of care when providing treatment to a patient, causing the patient to suffer an injury.

How Serious A Problem is Medical Malpractice?

Very Serious. A Report by the Institute of Medicine (2000) put it this way:

  • “When extrapolated to the over 33.6 million admissions to U.S. hospitals in 1997, the results of the study in Colorado and Utah imply that at least 44,000 Americans die each year as a result of medical errors. The results of the New York Study suggest the number may be as high as 98,000.Even when using the lower estimate, deaths due to medical errors exceed the number attributable to the 8th-leading cause of death. More people die in a given year as a result of medical errors than from motor vehicle accidents (43,458), breast cancer (42,297), or AIDS (16,516).”

Are Attorneys Certified as Specialists in Medical Malpractice Litigation?

Yes. Many states, including Tennessee, test and certify specialists in Civil Litgation and Medical malpractice. David Randolph Smith is What is your firm’s experience?

The firm has handled a number of landmark Tennessee Supreme Court medical malpractice cases cases for the plaintiff including:

  • Jordan v. Baptist Three Rivers Hospital, 984 S.W.2d 593 (Tenn. 1999) which changed 100 years of Tennessee wrongful death law by recognizing the right to recover damages for the loss of the deceased’s love, affection, companionship and consortium
  • Ashe v. Radiation Oncology Associates, 9 S.W. 3d 119 (Tenn. 1999) establishing causation standard in medical malpractice informed consent cases
  • Foley v. St. Thomas Hosp., 906 SW2d 448, 453 (Tenn. 1995) establishing rights of next of kin in autopsy cases
  • Recently the firm successfuly clarified the law on qualification of medical experts under Tennessee’s medical malpractice locality rule in Travis v. Ferraraccio (Tenn. Ct. App., Sept. 19, 2005).

The firm has obtained millions of dollars in settlements and judgments in medical malpractice cases in Tennessee, Kentucky, Missouri and Louisiana. Case results depend upon a variety of factors unique to each case. Indications of past case results do not guarantee or predict a similar result in future cases.

Are physician expert witnesses easy to find and are they willing to testify against another physician?

No. Well-qualified physician expert witnesses are not easy to find. However, experienced medical malpractice lawyers have resources and experience to find the best witnesses. Physicians within the same state usually do not testify against each other. Expert witnesses usually must be retained from out of state.

Can any lawyer effectively review and handle a medical malpractice claim?

Generally not. Malpractice cases are very complex, expensive and time consuming. The attorney who reviews these cases should be experienced in handling medical malpractice claims and have sufficient resources to have the case reviewed by top experts.

David Randolph Smith is Do most medical malpractice cases result in a verdict in favor of the patient?

Nationwide about 30% of all medical malpractice cases that proceed to trial result in a verdict in favor of the patient. Physicians win about 70% of the cases tried in court.

Do most medical malpractice cases settle?

No. If a physician settles the case for even $1, there is a report made to a national data bank. That reporting follows the physician for the rest of their career. Most medical malpractice insurance policies give the physician the right to decide if the case will settle.

Do patients realize that medical malpractice has occurred?

One study estimates that as much as 90% of documented malpractice was not reported and not pursued by the patients.

Does a bad outcome mean that medical malpractice has occurred?

No. Just because the patient suffers a bad outcome does not mean that malpractice occurred. Frequently, a bad outcome is caused by an unintended complication. Complications are not generally considered to be malpractice. In fact, most complications are contained on the consent form. Some of these include infection and bleeding.

Why do more medical malpractice acts not result in claims?

Much speculation can be offered as to why medical malpractice is not more frequently reported or pursued, but the likely explanation is that unless the wrong leg is amputated, most medical malpractice is not readily apparent to a victim or his family.

Moreover, most state laws do not require that victims be informed of malpractice. In fact, most state laws specifically preclude the patient from discovering that a physician has been reprimanded or disciplined by his peers for actions which are considered to be malpractice.

Should I make a claim for any act of medical malpractice which is suspected?

No. Medical malpractice cases are not like auto cases where the filing of a claim will result in some settlement offer. These cases require the expert testimony of a physician which is extremely expensive. Moreover, even a clear-cut case of malpractice is not worth pursuing unless there is at least $100,000 in provable damages. Thus, without clear evidence of malpractice and significant damages, these cases are not worth pursuing.

Should I obtain my own medical records or should I get an attorney to obtain them for me?

In most cases it is preferable that the patient attempt to get his own medical records first. When doctors and hospitals see requests from lawyers, such requests put them on notice of a potential claim. Records can be lost or even changed in some instances after a request from an attorney is received.

What do I do if I suspect that malpractice has occurred?

When malpractice is suspected, do not accuse or insult the treating health care providers. Quietly request the records and have them reviewed by an expert. If the care by the physician is ongoing, you may want to request a transfer of the patient’s care to another hospital or health care provider. Document the events as they unfold. Most important, consult an experienced and board certified medical malpractice attorney.

What fees do most medical malpractice lawyers charge?

This varies by state. In Tennessee, for example, the fee is capped by statute at one-third of the recovery. In other states without fee caps the fee generally is a little higher than the contingency charged for an ordinary personal injury case.

What is the time limit for filing a medical malpractice claim?

Each state varies in the time period allowed for bringing a claim. Under Tennessee law, medical malpractice actions must be commenced within one year of the date of the injury or discovery of injury but in no event more than three years from the date of the accident or occurrence (except in the case of foreign objects or fraudulent concealment).

Why do medical malpractice cases usually take longer than normal legal cases?

The main reason is that the cases are complex and therefore time concuming with many experts. The schedules of the multiple physicians usually involved in the case (expert witnesses and defendant doctors) delay it further.

Are most medical malpractice awards subject to a cap on damages, if so, which damages are capped?

Each state has its own laws regarding medical malpractice. Tennessee has no caps on damages. Louisiana, by contrast, has a cap on damages of $500,000. It includes all items of damages except medical expenses. Other states like California may have lower caps, but their caps allow recovery of lost wages.

What is the collateral source rule?

Under a traditional collateral source rule, a defendant may not seek to reduce its liability by introducing evidence that the plaintiff has received compensation from other sources, such as the plaintiff’s own insurance coverage. In Tennessee there is a mandatory offset, except for private insurance or for assets purchased by the plaintiff.

Are there rules for expert witnesses?

In many states, yes. Expert witnesses must be licensed in Tennessee or in a contiguous state, and must have been in practice for at least one year prior to the date of the plaintiff’s injury.

Why Use A Specialist in Malpractice Law?

Medical malpractice law is a highly technical field of law, and malpractice lawsuits tend to be fiercely defended by well-funded defense firms. Medical malpractice lawsuits can be exceptionally expensive to pursue, with costs often exceeding $50,000.00.

Due to the technical skills involved in prosecuting a malpractice claim, the possibility that an inexperienced or non-certified lawyer may not be sufficiently conversant with the medical issues, or might make a technical error which causes a case to be lost or dismissed, and the very high costs the malpractice law firm typically must advance, an injured patient is very well served by going with a specialist firm and an attorney who is Board Certified as a Specialist in Medical Malpractice Litigation by the State in which the attorney primarliy practices.

If you are seeking a Tennessee medical malpractice attorney, Tennessee wrongful death attorney, or a Tennessee product liability attorney, we would be pleased to hear from you.