Millions of people suffer injury at the hands of medical or healthcare providers every year, and if this has happened to you, it’s important to find an experienced Nashville medical malpractice attorney. If your healthcare provider (doctor, nurse, hospital) failed to adhere to care standards, resulting in your injury, you should fight for justice. At David Randolph Smith & Associates, we’re proud to be the premier medical malpractice law firm in the region, and you can count on us to get you the compensation that you’re entitled to.
What are some examples of medical malpractice/medical negligence?
• Failure to diagnose
• Birth injuries
• Incorrect medications or doses
• Surgical errors
• Delay in treatment of condition
• Anesthesia errors
• Improper treatment for condition
• Emergency room negligence
• Negligent hygiene leading to infection
• Cancer misdiagnosis
• Many more
Landmark Tennessee Medical Malpractice Cases
Our team of medical malpractice attorneys in Nashville have seen tremendous success in several landmark cases in the region, winning millions of dollars for our clients. We have successfully tried and won cases in Tennessee, Georgia, Mississippi, and Kentucky, with the tenacity and industry experience of Mr. Smith. Medical errors are one of the leading causes of death in the U.S., and we take our work in medical malpractice very seriously. If you or a loved one has been injured due to the negligence of a healthcare provider, the law firm of David Randolph Smith & Associates is here to fight for you.
Mr. Smith is one of only 18 attorneys in the state of Tennessee that is a certified Medical Malpractice Specialist, and he understands the dedication, patience, and perseverance that these kinds of cases require. Since nationwide estimates show that the healthcare provider wins 70% of malpractice cases, it’s vital that you give yourself the best possible shot by choosing a well-respected attorney. With the right lawyer, you could walk away with a sizeable recovery.
Why Use A Malpractice Lawyer
Nashville medical malpractice cases are notoriously complex, and many do not even make it to trial. If you suspect that you have been injured due to healthcare negligence, request your medical records and have them reviewed by an expert. Reach out to us at David Randolph Smith & Associates to see if you have a case.
Read below for the top five things to know about bringing a medical malpractice case in Tennessee.
In spite of advancing medical technology, many patients still suffer unforeseen consequences from their procedures, such as injury, infection, or even death. Sometimes, these consequences are unavoidable effects of the procedures themselves. Other times, however, they are the tragic results of a physician’s negligence or substandard care.
If you’ve experienced an injury as a result of subpar medical care, you’ve likely considered bringing a medical malpractice suit against your healthcare provider. There are a few things you should keep in mind, however, in determining your likelihood of recovery.
1. Medical malpractice in Tennessee requires negligence, injury, and causation.
To bring a successful medical malpractice claim, you must be able to prove the three required elements of malpractice: that your healthcare provider was negligent (meaning that their care fell short of established standards), that you sustained some type ofinjury or illness under their care, and that your injury or illness was directly caused by their negligence. If your claim lacks proof of any of the three elements–negligence, injury, or causation–your medical malpractice claim is likely not recoverable.
In most cases, the causation element is the most difficult element to prove. It is relatively easy to produce evidence proving that an injury was sustained, and that the attendant medical professional deviated from their standard of care in some manner. However, it can be very difficult to establish the link between the two. Most medical procedures involve countless variables, and if the defendant can show that the plaintiff’s injury could have been caused by circumstances other than the doctor’s negligence, the plaintiff may not recover.
2. Sickness or injury alone do not constitute medical malpractice in Tennessee.
Some patients mistakenly believe that any illness or injury sustained during a hospital stay is sufficient grounds for a malpractice claim. Unfortunately, however, there are a number of unavoidable health risks that go along with most medical procedures. For instance, it’s not uncommon for patients to contract post-surgical infections or to have unforeseen reactions to certain medications or instruments, or even for a patient’s condition to worsen after a procedure. These situations, in themselves, do not prove negligence on behalf of the medical staff, and without establishing negligence and a causal link, a plaintiff only has proof of an accidental injury.
3. Successful malpractice suits generally require substantial harm.
Even if a plaintiff can show injury, negligence, and causation, his claim still may not be recoverable if his injury was minor. Conditions or injuries from which a patient quickly recovers–such as brief infections, minor allergic reactions, bruises, soreness, or cuts–will likely not support a medical malpractice lawsuit.
To be clear, this doesn’t mean that medical malpractice has not occurred. Even if an injury was minor, it is still correctly classified as malpractice if it directly resulted from a healthcare provider’s negligence. However, medical malpractice suits often require significant investments of time and money, and the compensation for minor injuries will likely be less than the cost of bringing a malpractice suit. Generally, a plaintiff’s injury must be relatively significant for a malpractice suit to be worthwhile. It’s important to consult with an attorney to determine whether your claim will sustain the costs of litigation.
4. Keep track of the statute of limitations.
In Tennessee, the statute of limitations for medical malpractice claims is one year from the date that the injury was discovered, but no more than three years from the date it occurred. For example, if a surgeon negligently damaged a patient’s organ, and the patient was not aware of the injury until a year later, the patient would have one year from the date of discovery to file suit. If the patient discovered the injury five years later, however, it would be too late to file a medical malpractice claim. In other words, the injury must be discovered within three years of its occurrence in order to support a medical malpractice claim.
There are a couple of exceptions to these rules, however. If the patient could not discover the injury within the three-year limitation due to fraud or concealment on behalf of the healthcare provider, the three-year limitation will be removed and the patient will have one year from the date of discovery to file her claim, regardless of when the injury occurred.
The same extension applies to foreign object cases: a patient may bring a claim within one year of the discovery of a foreign object in her system, no matter how much time has passed since it was inserted.
5. Keep detailed records of your injury.
If you sustain an injury and plan to bring a medical malpractice claim, it’s important to document every stage of your injury, from the date of its occurrence (or the date that you notice it) onwards. Note any side effects and any changes in your condition as they occur, and always record the dates of such developments. This will help you remember the statute of limitations deadline for your claim, assist future medical providers in assessing the extent of your injuries, and help your medical malpractice attorney evaluate your claim. If you’re unsure of the next steps to take in your medical malpractice case, call the Nashville medical malpractice attorneys at David Randolph Smith & Associates for a free phone consultation. Let our experienced Tennessee medical lawyers offer their expert advice on the best way to handle your claim
Here are some of the most frequently asked questions about medical malpractice litigation:
- What is Medical Malpractice?
- How Serious A Problem is Medical Malpractice?
- Are Attorneys Certified as Specialists in Medical Malpractice Litigation?
- What is your firm’s experience?
- Are physician expert witnesses easy to find and are they usually willing to testify against another physician?
- Can any lawyer effectively review and handle a medical malpractice claim?
- Do most medical malpractice cases result in a verdict in favor of the patient?
- Do most medical malpractice cases settle?
- Do patients realize that medical malpractice has occurred?
- Does a bad outcome mean that medical malpractice has occurred?
- Why do more medical malpractice acts not result in claims?
- Should I make a claim for any act of medical malpractice which is suspected?
- Should I obtain my own medical records or should I get an attorney to obtain them for me?
- What do I do if I suspect that malpractice has occurred?
- What fees do most medical malpractice lawyers charge?
- What is the time limit for filing a medical malpractice claim?
- Why do medical malpractice cases take longer than normal legal cases?
- Are most medical malpractice awards subject to a cap on damages, if so, which damages are capped?
- What is the collateral source rule?
- Are there rules for expert witnesses?
- Why Use a Specialist in Malpractice Law?
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 one of only ten attorneys in the State of Tennessee certified as a Medical Malpractice Specialist by the Tennessee Commission on Continuing Legal Education and Specialization. There are over 13,000 attorneys in Tennessee.
Certification requires proof that the attorney is in good standing, is substantially involved in litigating and trying cases (including minimum trial day requirements), has met continuing legal education requirements and has been subjected to peer review by persons against whom they have tried cases, as well as judges before whom they have appeared.
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 one of only ten attorneys in the State of Tennessee certified as a Medical Malpractice Specialist by the Tennessee Commission on Continuing Legal Education and Specialization. There are over 13,000 attorneys in Tennessee.
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.