PHILADELPHIA MEDICAL MALPRACTICE ATTORNEYS
When you have been injured by a medical care professional, a number of things will need to be proven to support your claim. This requires an investigating attorney to thoroughly look into the facts surrounding your claim in order to get to the root cause of your injury. A doctor-client relationship will need to be proven, evidence that the doctor or nursing staff was negligent will need to be collected, as will proof that the medical professional’s negligence caused the injury.
Evidence supporting the fact that the injury has led to specific damages suffered by you, including evidence of your physical or mental pain, will need to be collected. If you have medical bills or have lost wages as a result of your injury, this information will need to be recorded by the investigating attorney also. Only a team of experienced medical malpractice lawyers with the resources and wherewithal to streamline these investigations can do your case the justice it deserves.
In many instances of medical malpractice, the injury could have been avoided if proper care had been taken. That’s why it is important to seek outside consultation with specialists and trusted medical experts to get a second opinion on the treatment you received that led to your medical malpractice injuries. This could involve receiving a medical evaluation from a specialist with experience handling the specific type of procedure or surgery you underwent.
Consultation with health care center administrators, nurses and staff will be necessary to verify what practices the hospital or care center is supposed to adhere to, and then comparing that information to the facts of your case will be important to building a strong case as well. Based on the facts of your malpractice case, the investigating attorney may need to reach out to medical device specialists, designers or biomedical engineers for testimony related to any defective or improperly implanted devices or prosthetics that may be causing your injuries.
With so many doctors and hospitals in the Philadelphia area, many medical malpractice claims are brought to our firm each year. At Cohen, Placitella & Roth, P.C., we work hard to provide clients with the representation they deserve to get a successful resolution to their medical malpractice claims. We work closely with medical experts, highly trained doctors and nursing specialists to build a strong case and have the resources to collect good evidence in support of your claim.
Average Wrongful Death Settlements for Mesothelioma: What to Expect in a Mesothelioma Wrongful Death Suit
After a struggle with mesothelioma, death can leave loved ones with more than grief. On top of funeral costs and other final expenses, medical bills are a common extra burden for families. However, for some families, a successful wrongful death lawsuit could help offset these costs by allowing reimbursement for financial damages as well as emotional pain and suffering.
Studying average mesothelioma settlements can provide useful information on the range of potential settlements and verdicts. But keep in mind that every case is unique, and average wrongful death settlements for mesothelioma won’t always reflect your situation. Still, a skilled and experienced mesothelioma lawyer can help ensure you get full and fair financial compensation.
If you’re dealing with the loss of a loved one, you may be asking if filing a wrongful death lawsuit is worth the time and effort. Of course, the value of a case is dependent on a number of factors. However, taking a look at the lower limits of claims like these can help you make your decision.
Who Can Receive a Mesothelioma Wrongful Death Settlement
The person responsible for filing the claim is the estate representative, typically named in a will. This may be a surviving spouse, a child, or another close family member or friend. If there is no will, the law in most states identifies the order of family members who can serve as the representative of the estate.
Often, when a personal injury lawsuit is filed after a person dies, there are two separate claims. One claim is for wrongful death. A claim for wrongful death is usually brought by family members of the deceased plaintiff, such as a spouse or child. The spouse or children of a deceased plaintiff can be considered wrongful death beneficiaries.
Eligible wrongful death beneficiaries can potentially recover individual damages for their personal losses. The second claim that is usually brought up after a person dies is called a survival claim. A survival claim is a claim that belongs to the estate of the deceased plaintiff and seeks to compensate for such things as the decedent’s physical pain and emotional suffering as well as any economic losses resulting from the decedent’s illness before he or she dies.
With respect to survival claims, settlement goes to the estate rather than the representative. This means heirs divide the survival claim award in the same way they divide other assets. If a mesothelioma patient has already filed an asbestos lawsuit but passes away before it resolves, family members can amend the claim to include both a wrongful death and survival claim.
A new statute of limitations begins upon a patient’s death, even if the original statute of limitations has expired. However, the discovery rule does not apply to wrongful death claims.
The Lowest Mesothelioma Settlements on Record
Like other personal injury cases, potential recoveries for wrongful death and survival claims will vary depending on the underlying facts. In cases with limited evidence establishing a defendant’s liability or limited medical evidence proving that a plaintiff’s death was caused by asbestos, settlements and verdicts can be smaller due to the weakness in the proofs. Because the amount of a settlement or verdict will vary depending on the strength of the evidence developed during litigation, it is important that families of mesothelioma victims retain a skilled and experienced mesothelioma lawyer.
Types of Mesothelioma Claims That Apply to a Wrongful Death Case
Lawyers can amend any type of mesothelioma claim to include a wrongful death claim if a victim passes away before the case comes to an end.
In addition, family members can initiate a wrongful death and survival claim after a plaintiff dies. However, these cases will require an official mesothelioma diagnosis as well as evidence that the negligence of one or more guilty parties led to asbestos exposure.
Maximum Wrongful Death Settlement for Mesothelioma
The average settlement for mesothelioma cases can vary depending on numerous factors. Factors that will influence the amount of a settlement include the strength of the underlying evidence, the nature of the plaintiff’s pain and suffering, economic loss, and even the jurisdiction in which the claim is filed. Some states have legal caps on damages that reduce settlement and verdict amounts. You may need to adjust your expectations to the maximum in your area.
The Highest Mesothelioma Settlements on Record
The highest wrongful death verdicts are often in the millions of dollars. However, while juries may award high amounts, defendants may appeal and have the amount reduced. In addition, settlements out of court are often lower than jury-awarded compensation.
One example of a significant wrongful death verdict was a $15 million award given to the family of a mesothelioma victim. The jury awarded it to the family of a New Jersey construction worker. The average high settlement would be between $2 million and $7 million.
Types of Mesothelioma Claims That Get The Highest Settlements
You may receive a higher settlement if your claim includes the following:
- Multiple responsible parties
- Employers that violated OSHA regulations
- Minor children and dependents
- A higher degree of pain and suffering
Examples of Mesothelioma Claims That Resulted in the Highest Verdicts or Settlements
One notable example of a high settlement occurred in Illinois. There, a woman named Jean Holmes died of mesothelioma after secondary exposure to asbestos fibers while laundering her husband’s clothes. The jury awarded $2.6 million to Holmes’ children. They received this high award partly because responsible parties did not warn Holmes of the dangers of asbestos fibers.
Factors That Affect the Amount of a Wrongful Death Settlement
Wrongful death claims follow the same process as other types of settlements. If the case proceeds to court, juries must analyze the specific situation to determine how much to award. As a result, there are many factors that could affect the amount of your final wrongful death settlement.
What Juries Consider When Determining the Amount of a Mesothelioma Settlement
The top factors that affect a mesothelioma settlement in a wrongful death case include the following:
- The deceased person’s age
- The deceased person’s treatment and expenses
- The deceased person’s pain and suffering
- The strength of the evidence
- The impact the treatment and loss had on surviving family members
To expand, a wrongful death recovery allows for similar recoveries available in standard personal injury actions. For instance, lost wages are recoverable in both wrongful death and standard negligence claim. But wrongful death claims also take relationships into account and allow the family of a deceased plaintiff to pursue their own recovery. For instance, if the deceased was a caregiver to a child, the child may recover damages in compensation for losing their caregiver.
What Juries Don’t Consider When Determining the Amount of a Mesothelioma Settlement
Juries will not always penalize you for lifestyle choices. For example, smoking can make mesothelioma symptoms worse but will not necessarily alter the outcome for people diagnosed with mesothelioma. The mortality rate for smokers diagnosed with mesothelioma and nonsmokers diagnosed with mesothelioma is not that different. Therefore, a history of smoking will not necessarily affect the final settlement amount as long as asbestos was the cause of lung cancer.
In addition, while age and occupation history influence the settlement, other demographics like gender or race should not. Finally, juries do not necessarily distinguish between primary exposure and secondary exposure—meaning victims do not have to work directly with an asbestos company to qualify for mesothelioma compensation.
How Circumstances of Exposure Can Affect Settlement Amount
If exposure happened during military service, the settlement amount could be affected by a veteran’s claim. These claims are available to family members of deceased veterans who passed away from mesothelioma as well. In this case, families may receive monthly compensation, a pension, and up to $2,000 to cover funeral expenses.
If the victim had asbestos exposure due to the conduct of a now-bankrupt company, the number of people who make mesothelioma claims could impact the settlement. Often, settlement money for bankrupt companies comes from asbestos trust funds. If multiple people make claims at the same time, the percentage you receive could drop significantly.
Veteran’s claims and asbestos trust fund claims are not the same thing as a mesothelioma lawsuit; you can pursue multiple sources of compensation at one time.
How to Get the Highest Possible Wrongful Death Settlement for Your Mesothelioma Case
You need several types of evidence to file a strong wrongful death case involving mesothelioma. First, you must prove that the plaintiff was exposed to asbestos and died of mesothelioma. The stronger the evidence developed during litigation, the higher the likelihood of a full and fair settlement or verdict.
Providing Evidence of Costs
Your wrongful death claim should cover both funeral expenses and unpaid medical expenses. Evidence of these costs includes the invoice from your funeral home and receipts from other out-of-pocket purchases like flowers, a headstone, and a casket. Medical records and bills are also excellent evidence of the costs incurred by asbestos lung cancer.
Hospital bills will be your most substantial evidence, but health insurance statements, pharmacy receipts, and other medical invoices are also helpful. The more specific your list of expenses, the higher your settlement amount will be.
Providing Evidence of Lost Wages and Other Costs
In a wrongful death and survival lawsuit, the deceased’s estate can recover damages for lost wages. To prove lost wages, a skillful mesothelioma attorney will normally secure several years’ worth of pay stubs, bank statements, and tax returns as evidence of the lost wages. With this evidence, expert witnesses like economists and actuaries can calculate the total amount you deserve.
You may also factor in lost benefits such as healthcare, workers’ compensation, or a pension. Calculations can also include the value of a homemaker. You can receive damages for lost childcare, cooking, laundry, and other household work.
Other Evidence to Present
Financial compensation is also available for noneconomic losses. Your mesothelioma lawyer will not ignore the mental pain and suffering by the decedent and in some cases the surviving family members—such as facing the loss of companionship, care, and love. However, proving noneconomic losses isn’t always straightforward.
You may provide family photos and even social media posts that highlight your emotional losses. Journal entries from before and after the claim also make excellent evidence of these types of losses.
What Is the Statute of Limitations for Medical Malpractice?
If you have been injured due to medical negligence, you need to act quickly. Unfortunately, medical malpractice can and often does result in devastating, life-altering injuries. Filing a medical malpractice lawsuit cannot directly alleviate these injuries.
However, if you bring a successful claim, you may recover monetary damages to compensate you for your physical, emotional, and economic losses. A monetary recovery can provide financial security and assistance for those suffering from debilitating injuries. Therefore, if you believe you were injured due to medical malpractice, time is of the essence.
Failing to file a medical malpractice lawsuit on time may result in waiving your rights and can cause further hardship. The medical malpractice statute of limitations is a strict and unforgiving law that sets a filing deadline for this type of legal claim. Unless you qualify for specific exemptions, the court will dismiss your case if you fail to file your claim on time.
To protect your right to compensation, you need to speak to a skilled medical malpractice lawyer as soon as possible.
Purpose of a Statute of Limitations for Medical Malpractice
By definition, the statute of limitations sets the time limit by which an injured party can initiate a legal claim. If a party fails to file their lawsuit within the appropriate time frame, they will be unable to recover compensation for their injuries. Statutes of limitations are state-specific laws that vary from state to state.
Thus, the time limit in which a plaintiff must bring a medical malpractice suit may vary depending on where the plaintiff lives or where the malpractice occurred. Different filing deadlines also apply to different types of legal claims, such as injury cases involving minors and wrongful death claims. Statutes of limitation play an important role in all personal injury claims, including medical malpractice cases.
First, it ensures fairness in legal proceedings by ensuring that the evidence is as fresh as possible. If a plaintiff waits too long to file a lawsuit, witness memories can fade and important documents can disappear or degrade. It is easier to get to the truth if medical negligence occurred a few years ago versus a decade or longer.
Additionally, the medical malpractice statute of limitations protects defendants from the threat of constant litigation. It can be very stressful for medical professionals to know that they may face a lawsuit at any given moment. Unless the case qualifies for certain exceptions, the statute of limitations sets a reasonable time period in which a medical professional can anticipate liability for patient injuries.
Understanding the Statute of Limitations for a Medical Malpractice Case
Because the statute of limitations varies by state, your filing deadline will usually depend on where the malpractice occurs. For example, in Pennsylvania, the statute of limitations for a medical malpractice lawsuit is, generally, two years from the date of the medical negligence. An experienced medical malpractice lawyer will be able to evaluate your case and determine if your claim falls within the statute of limitations.
In order to understand why the medical malpractice statute of limitations is so important, a few clarifications are necessary. Every medical professional, including physicians, surgeons, and anesthesiologists, must meet a minimum standard of care. This standard applies whenever these professionals are treating patients in a formal capacity.
If a medical professional fails to meet the minimum standard of care and hurts a patient, the patient may file a medical malpractice lawsuit. If the suit is successful, the negligent healthcare provider may be required to compensate the plaintiff for various categories of damages, including past and future medical costs, lost wages, pain, and suffering, loss of life’s pleasures, and other damages. The purpose of medical malpractice laws is to ensure that patients receive appropriate treatment, avoid needless harm, and recover fair compensation if they do suffer an injury.
To prove a medical malpractice claim, a skilled attorney will begin by investigating the plaintiff’s case and determining whether medical negligence occurred. They may consult with medical experts who can evaluate the physician’s actions and the plaintiff’s injuries. Then, the lawyer will begin to gather evidence in order to establish a set of important facts.
Some of the most important facts to establish in proving a claim for medical malpractice includes the following:
- The physician had a duty to provide a minimum standard of care to the patient.
- The physician failed to provide the minimum standard of care.
- The physician’s negligence injured the patient.
- The patient suffered damages that they could claim in a medical malpractice case.
Complying with the Statute of Limitations for a Medical Malpractice Case
From birth injury to wrongful death, medical malpractice cases can have a devastating impact on patients and their families alike. Bringing a successful lawsuit can help alleviate or ameliorate these losses. But if you fail to file within the statute of limitations, you may be barred from pursuing just compensation.
To protect your right to recovery, it is critical to consult with a medical malpractice lawyer immediately. Although the statute of limitations is typically two years, this is a surprisingly short period in the legal world. Obtaining medical records can take as long as ninety days. In Pennsylvania, you will also need a medical expert to review your case and your attorney must file a Certificate of Merit meaning that they have obtained an expert’s written statement supporting the claim.
Building a successful case for medical malpractice can take a significant amount of time. Plaintiffs often underestimate just how long it takes to gather the evidence necessary to bring a medical malpractice claim. A safe rule of thumb is to schedule a consultation with an experienced medical malpractice lawsuit as soon as you believe you may have been injured due to malpractice.
An experienced lawyer can help you comply with the applicable statutory and legislative requirements and initiate your claim before the statute of limitations passes. Once your attorney files your lawsuit, the litigation process will begin:
- First, your attorney will begin to investigate and build your case for the courtroom. Your lawyer may gather your medical records, consult with experts and identify and speak with potential witnesses.
- After your lawyer files your claim, the discovery process will begin. During discovery, you and your attorney will exchange evidence with the at-fault physician and their defense lawyer. Your lawyer will also depose or interview witnesses.
- While you are waiting for trial, you and your attorney may engage in negotiations with the at-fault medical provider and their legal team. Your lawyer will arrange these meetings only if they are in your best interest. You may reach a settlement before going to trial.
- If you do not settle, your case will proceed to trial. The judge or jury will hear arguments and evidence from both parties. At the conclusion of your case, the jury (or potentially a judge in certain bench trials) will determine whether you are eligible for compensation and the value of your settlement.
All in all, medical malpractice cases can take between two to four years to resolve. It is important to have a skilled attorney on your side who can guide you through your case. Your lawyer can help you avoid any errors or delays and ensure that you comply with the appropriate statute of limitations.
Exceptions to Medical Malpractice Statute of Limitations
Unfortunately, in many cases, even legitimate medical malpractice cases will be barred if they are not filed within the applicable statute of limitations. In these situations, the severity of your injuries or the egregious conduct of the medical professional does not matter. Unless an exception applies, if you miss the deadline, you cannot recover compensation and may face financial hardships in the future as a result.
However, your case may qualify for certain exceptions that toll the statute of limitations. Tolling means that the law will stop or temporarily suspend the deadline’s “clock.” If you are eligible, you may have a longer period to file your lawsuit.
In Pennsylvania, there are a few exceptions to the medical malpractice statute of limitations. Two major exceptions involve the discovery rule and minor plaintiffs:
- The Discovery Rule: In some cases, you may not know about your medical malpractice injury until a later date. For example, a surgeon may leave a foreign object inside of your body that you do not discover until years after the procedure. Or you may suffer an infection during surgery due to the use of the contaminated medical device, but that infection does not manifest for months or years. In these cases, you would likely have two years from the date that you discovered or, through the exercise of reasonable diligence, should have known about your injury to file your lawsuit.
- Minor Plaintiffs: Pennsylvania has different statutes of limitations for cases involving minors. If you were under the age of eighteen at the time of the malpractice, you must file your lawsuit by your twentieth birthday.
Two years may seem long, but when investigating a medical malpractice case, time is of the essence. Regardless of whether you qualify for an exception, it is important to seek legal representation as soon as possible. A skilled medical malpractice lawyer can assess your case and determine if you qualify for any of the above exceptions.
WHY CHOOSE CPR LAW
For over four decades, the lawyers at Cohen, Placitella & Roth have brought an unwavering commitment and dedication to the legal representation of individuals and families devastated by injury or death caused by unsafe products, professional malpractice or negligent and reckless misconduct.
“The ultimate measure of a man is not where he stands in moments of comfort and convenience, but where he stands in times of challenge and controversy.” — Martin Luther King, Jr.
Our Client-Centric Firm is Always Focused on Excellence
LexisNexis Martindale-Hubbell® annually reports Cohen, Placitella & Roth’s peer rating-the highest AV®-—”a testament to professional excellence.” Since the inaugural U.S. News & World Report ‘Best Law Firms’ edition in 2010, Cohen, Placitella & Roth has been rated by its peers as one of the top tier class action, personal injury and mass tort law firms in the country.
Testimonials
“Mr. Cohen, I cannot thank you enough for your help, support and guidance (regarding my brother’s child birth injuries). I am not sure how we would support him without your assistance.”
We Get Results
$14.5 MILLION
Medical Negligence
A $14.5 million recovery in a medical negligence case for a child who suffered brain damage as a result of the physicians’ failure to properly manage post operative care.
Common Types of Medical Malpractice Cases
Anesthesia Errors
Anesthesia errors are often the result of negligence on behalf of a medical professional performing a surgery, and can lead to serious complications during surgery, or, in the worst cases, death. Anyone who has sustained injuries or lost a loved one due to anesthesia errors should reach out to an attorney for help recovering due compensation through a medical malpractice lawsuit.
Birth Injuries & Trauma
Summary: Doctors have a high duty of care when treating a pregnant mother and delivering her baby. When this duty of care is breached, the infant may be at risk of serious injury. Sometimes, this injury is permanent, and can significantly impair a child’s quality of life. If medical malpractice has caused your child’s birth injury or trauma, our experienced lawyers at the law firm of Cohen, Placitella & Roth, P.C. will help you to prove that the doctor in your case violated the standard of care your family deserved, and will fight for your rights to compensation.
Spinal Cord Injuries
When an infant undergoes blunt force trauma or is subject to a particularly difficult birth, a spinal cord injury can result. Although spinal cord injuries are not especially common among infants, they can result in life-long damage and even paralysis. Sometimes spinal cord injuries occur in infants as a result of undiagnosed spina bifida.
Emergency Room Errors
While individuals only visit an emergency room to receive life-saving care, many leave with serious injuries, or pass away in the emergency room, as a result of the negligence of an emergency room doctor or other healthcare professional. As such, those who find themselves in this situation should contact an attorney immediately for help recovering adequate compensation.
Hospital Malpractice
Negligence on behalf of doctors or other healthcare personnel who work at a hospital can often lead to serious injuries or death of visiting patients. Anyone who has been injured due to the negligence of a hospital employee is advised to reach out to a skilled attorney today for help recovering compensation in a medical malpractice lawsuit.
Hospitals and Vicarious Liability
Often times, the negligence of a doctor or other healthcare professional working at a hospital can lead to injuries or deaths of patients. In this case, the injured patient, or the survivors of the deceased, may be able to file a medical malpractice claim to recover compensation as a result of the damages suffered.
Medical Device Errors
Medical devices include everything from hospital testing and monitoring equipment to implanted devices such as pacemakers and artificial joints. While these products can perform lifesaving functions for patients with serious medical conditions, they are loosely regulated, and severe and potentially fatal complications can happen when errors occur. At Cohen, Placitella & Roth, P.C., our Philadelphia medical malpractice attorneys fight for the rights of those who have been victims of defective medical devices and errors. We can advise you on how to hold device manufacturers and medical providers accountable, and assist you in getting the compensation you need to recover.
Intracranial Hemorrhage/Subarachnoid Hemorrhage
These types of hemorrhages involve bleeding within the skull, either inside of the brain, or between the brain and thin tissues that cover the brain. This may result from trauma during the birthing process, and is considered a life-threatening emergency.
Medication Errors
When a patient is given the wrong type or wrong dosage of medication, or is given a medication that not safe for them to take due to the use of another medication or the presence of a particular health condition, the patient may suffer serious harm. When this happens, the patient – or their surviving family members – have the right to pursue compensation for any economic or noneconomic losses. Working with an experienced medical malpractice lawyer can improve your chances of recovering your full compensation amount. Call the law firm of Cohen, Placitella & Roth, P.C. to schedule your free case review today.
Misdiagnosis or Delayed Diagnosis
Medical mistakes and errors are on the rise throughout the country, and cases involving misdiagnosis and delayed diagnosis of medical conditions are increasingly common. Medical providers may fail to diagnose symptoms of major illnesses or diseases, fail to detect emergency situations requiring immediate care, or mistakenly diagnose and treat patients for conditions they do not have, resulting in serious side effects. In all of these situations, the damage to patients and their families can be severe. At Cohen, Placitella & Roth, P.C., our Philadelphia medical malpractice attorneys can advise you on how to hold medical providers accountable for the mistakes they make, and assist you in getting the compensation you need to recover.
Postoperative Negligence
After an operation, patients are still at risk of suffering serious complications or injuries. Specifically, patients are at high risk of suffering severe infections or blood clots. These are both very dangerous conditions that can be deadly in some cases. Medical professionals must take proper precautions to reduce the risks of any postoperative complications. If they fail to do so, they are guilty of medical malpractice and they should be held liable for any resulting damages. If you or a loved one has been the victim of postoperative negligence, it is imperative that you consult with an experienced medical malpractice attorney as soon as possible.
Facial Paralysis
During an especially traumatic birth, newborns may experience facial paralysis, often as a result of incorrect use of forceps or other actions taken by the medical provider.
Surgical Error Malpractice
All surgeries come with inherent risks. Unfortunately, a significant portion of that risk comes from the possibility that a surgeon or hospital staff member might make a mistake. Often, these mistakes occur simply because of inattention on the part of medical professionals. When a surgical error does take place, the results can be devastating, even deadly, for the patient. Surgical errors are textbook examples of medical malpractice. Victims or surgical errors deserve compensation that accounts for the full extent of their damages. If you or a family member was recently the victim of a surgical error, you need to contact an experienced medical malpractice lawyer immediately.
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Contact Cohen, Placitella & Roth, PC To Handle Your Medical Malpractice Case Today. When you need a Philadelphia medical malpractice attorney with the resources, confidence and experience required to help you fight for your rights, Cohen, Placitella & Roth, PC is the right choice for you.
FAQ's about Medical Malpractice
Malpractice means the failure of a professional to properly perform a duty owed to a client, (so called breaching the standard of care) owed to the client. When the malpractice involves a healthcare professional, this is called “medical malpractice.”
The “standard of care” that is used differs depending upon the type of professional involved, and most states have even defined standard of care in statute. When talking about medical malpractice, standard of care typically means the degree of care that another reasonable medical professional, of the same degree and training, would have exercised in a similar situation. If the standard of care is breached, medical malpractice has occurred.
There are four elements of a medical malpractice case – an attorney can help you to analyze these elements to determine whether or not you have a case, and if so, how strong that case is. In order to bring forth a successful claim, you must prove that the healthcare provider in question (against whom you are filing a lawsuit) owed you a duty of care; that the duty of care was breached; that the breach of duty of care caused you an injury that you would not have sustained otherwise; and that you suffered actual damages as a result.
If you are unsure of whether or not you have a case, scheduling a free consultation with an attorney is advised.
Medical malpractice can occur anytime a doctor fails to treat, or act in regards to, a patient in a manner that is reasonable and meets the standard of care. Some of the most common types of medical malpractice include:
- Failure to diagnose/misdiagnosis;
- Medication error;
- Surgical error; and
- Failure to treat.
No, signing a consent form does not waive your right to bring forth a medical malpractice lawsuit. In fact, lack of informed consent – i.e. a patient signing a consent form without properly being explained what it is they are consenting to – can be a claim in and of itself. Further, even if you consent to a procedure, you are not consenting to substandard care, nor are you waiving your right to pursue legal action. If you signed something prior to a procedure and you were harmed, you should contact an attorney. Laws vary state-by-state, so it is important that a legal professional review all documents relevant to your claim before moving forward.
The law does not require that you hire a medical malpractice attorney if you want to bring forth a civil action, but doing so is highly recommended. An experienced medical malpractice attorney can help you to establish the four elements of a medical malpractice claim, can identify expert witnesses to testify on your behalf, and will demonstrate the full extent of damages you suffered. An attorney can also negotiate on your behalf and help you to understand the amount of money you are able to recover, as well as the laws surrounding that recovery.
Using expert medical witnesses will be a key part of proving a breach of the standard of care and proving that you have suffered damages. In fact, testimony from a medical expert, or multiple experts, is required in nearly all medical malpractice cases. Depending upon the details of your case, you may need to find a specialist to testify, which may prove difficult. Further, experts often charge high fees for their services. Our law firm will not only find the best experts to build your case, but will always handle the cost of doing so as well.
Ideally, your medical malpractice case will settle out of court. When a case settles out of court, it is often less emotional for the patient, less time consuming, and less expensive.
However, in some cases, an out of court settlement cannot be reached. This may be because the medical professional in questions refuses to accept liability or pay a settlement offer, or because the opposing side believes that you should receive much less money that you are entitled to. While we will do everything we can to reach an out of court settlement, in some cases, going to court will be inevitable. If your case goes to court, we will be prepared to go to trial.
As long as a plaintiff in a suit can prove the four elements of a malpractice claim (existence of duty, breach of duty, causation, and damages), then a tort can be pursued. In most cases, though, clients are advised to only file a medical malpractice claim when their losses justify the time and expense of a claim. This is very individual to each claim. For example, a patient who has only suffered $100 in damages may have a claim, but pursuing that claim may not be worth the time or cost. If you have questions about whether or not you have a strong case that is worth pursuing, our lawyers will review your claim for free.
A cap on damages means a limitation on the amount of money that you can receive in a medical malpractice claim. Each state is responsible for setting its own damages cap, and some states have eliminated a cap altogether, or eliminated a cap on certain damages types.
For example, in Pennsylvania, there is no cap on the amount of economic or noneconomic damages that a plaintiff can recover in a medical malpractice claim. Economic damages are the value of actual losses, like medical bills or lost wages, suffered by the plaintiff; noneconomic damages refer to compensation for things like pain and suffering, loss of consortium, etc.
While there is not a cap on economic or noneconomic damages, there is a cap on punitive damages in the state. Punitive damages are damages that are intended to punish the defendant. In Pennsylvania, the law states that punitive damages cannot exceed more than 200 percent of compensatory damages unless the misconduct was intentional.
If you suspect that malpractice has occurred, the best thing that you can do is to schedule a free case review with an experienced attorney near you as soon as possible. Because there is a statute of limitations on filing a medical malpractice action, it is imperative that you take action sooner rather than later. In addition to the statute of limitations, another reason why it is critical to move quickly on filing a malpractice claim is that evidence pertinent to your case may be destroyed with time.
Of course, filing a medical malpractice claim sooner rather than later also means that if your case is successful, you will recover compensation sooner.
In addition to meeting with an attorney, start keeping a journal documenting the malpractice and your damages. Keep detailed notes about any doctors appointments you had leading up to, and following, the malpractice, and what was discussed during those appointments. Begin collecting all relevant evidence to your claim, such as health records.
The amount of time that it takes to resolve a claim varies on a case-by-case basis. In some cases, evidence may be available and clear, and the healthcare professional in question may want to settle the matter as soon as possible.
In other cases, whether or not malpractice occurred may be harder to determine, and the healthcare professional may refuse to settle.
How long a case will take to resolve may be as short as a few months, or as long as more than a year. The sooner that you contact an attorney, however, the better your chances are of a more timely resolution.
No, not all medical mistakes are considered medical malpractice. Some medical mistakes are not serious enough to be considered a deviation from the standard of care, and such mistakes may not leave a patient with serious harm.
Further, in order to be considered malpractice, a mistake must cause a patient an injury or loss that they would not have otherwise experienced. For example, if a patient’s chances of experiencing a known complication is 9 out of 10 regardless of whether or not there was negligence during the surgery, the patient cannot sue if the complication occurs.
In order for a malpractice claim to be pursued, the medical professional in question must have failed to do what a reasonable professional in the same position would have done. Misdiagnosing a condition that showed all of the signs of another condition, and that the doctor tested for and followed up on, then, may not be malpractice. On the other hand, if a doctor misdiagnosed a condition because they failed to properly assess a patient’s symptoms, run tests, or refer them to a specialist, and if the patient suffered harm as a direct result, a case for malpractice can be made.
Each state is responsible for establishing its own statute of limitations, or the amount of time that a plaintiff has to bring forth a lawsuit before damages can no longer be pursued. It is imperative that you bring forth your claim within the statute of limitations; if you do not, you will likely be barred from recovering compensation at all. In Pennsylvania, the statute of limitations in a medical malpractice action is two years from the date that the patient discovers – or reasonably should have discovered – that injury occurred.
Pursuing a medical malpractice case can be expensive. Hiring experts, paying staff to investigate and build a case, lawyers’ fees, and court fees can all add up. At the law firm of Cohen, Placitella & Roth, P.C., we never want the cost of a medical malpractice action to be a deterrent for a client who has been harmed at the hands of a medical professional. As such, our law firm handles all costs of pursuing your lawsuit, and will never charge you for our services until your case is successful. We work on a contingency fee basis, which means that if your case is settled and you recover damages, we will collect a portion of that award. If your case is not successful, you will not owe us a cent for fees or costs.
If you are pursuing a medical malpractice action, you will need to obtain a copy of your medical records. Luckily, this is usually easy to do. This is because per federal law, you have the right to access your medical records, and can request paper copies or electronic health records. Health records that are protected under the law include lab results, billing information, and other medical test results. These things must be provided to you free of charge. Keep in mind that one type of medical record that you do not have a right to are a provider’s psychotherapy notes.
In order to recover your medical records, you must be the patient in question, or the personal representative of the patient. Because most healthcare providers are required to keep your health records on file, you can request a copy of your healthcare records by contacting the facility/provider directly.
The amount of money that you will be able to recover if you have been a victim of medical malpractice, and if your case is successful, will vary on a case-by-case basis. That being said, you are entitled to the full value of your losses. Types of damages that you may be able to recover include:
- Medical expenses – You have the right to seek compensation for the total value of medical bills and other medical expenses that you have incurred as a result of the medical malpractice, as well as any future medical expenses that you are likely to incur.
- Lost wages – When a person is a victim of medical malpractice, they are often harmed to the point where they cannot return to work, or return to work at the same wage they were making prior to their injury. If this is true for you, you can seek the full value of your lost wages, benefits, and future earning capacity related to your injury, past, present, and future.
- Pain and suffering – While the damages types above are economic in nature and often easy to add up, the value of your pain and suffering can be hard to calculate. In many cases, the value of pain and suffering may be determined by multiplying a percentage of your economic damages by the number of days that you are expected to be in pain and experience suffering.
In addition to the above, you can recover compensation for any other types of economic or noneconomic damages. In some cases, punitive damages may also be available if the malpractice was committed with intent, malice, or gross recklessness.
It can be very hard to determine what the chances are that your lawsuit will be successful and that you will recover your full settlement amount. The best way to get an idea of what your claim’s chances are is to meet with an experienced malpractice attorney who has successfully handled malpractice claims in the past and understands the elements of a strong case. At the law firm of Cohen, Placitella & Roth, P.C., if we do not believe that your case is worth pursuing and that you will not recover compensation, we will inform you of this and will not waste your time.
Liability in a medical malpractice case will likely depend upon who breached the duty of care owed to you, and their relationship with another party, such as an employer. Typically, an employer bears responsibility for an employer’s action, so long as those actions occurred within the scope of employment. This is known as vicarious liability, or as the doctrine of respondeat superior.
In a medical malpractice case, this may mean that an individual healthcare practitioner is not liable for the malpractice; instead, their employer, such as a hospital, may be held liable instead.
Proving the elements of a medical malpractice case can be difficult. The following reviews the four elements and how to prove them—
- Existence of duty of care – Typically, the existence of a duty of care is implied, so long as you can prove that a relationship existed between you and the healthcare professional.
- Breach of the duty of care/malpractice – In order to prove an act of malpractice, you will need to call on other medical experts who can testify that the healthcare professional in question acted in a manner that was not consistent with what a reasonable professional in the same position, and of the same training and background, would have.
- Causation – To prove that the malpractice was the direct cause of your injuries, you will again need to call on medical experts who can testify as to the type, cause, and severity of injuries from which you are suffering.
- Damages – Numerous experts and other sources of evidence will need to be gather to show the financial and nonfinancial losses that you have suffered as the result of your injury, ranging from psychologists’ testimonies to copies of medical bills to testimonies of family members and more.
You may have to go to court in order to get the settlement offer that you deserve. While we always pursue out of court strategies first to save our clients time and money, going to court may be unavoidable. Out of court, a judge is not involved in a settlement; rather, both parties have autonomy in negotiating for a settlement amount, and accepting or rejecting settlement offers.
In court, you will have to present your case before the court, and sometimes before a jury. Then, whether or not you receive a settlement amount, and how much is received, will be determined by the court. Once a verdict is issued, it is non-negotiable, although the defendant may be appeal to appeal a verdict in some cases.
No, you cannot reopen a medical malpractice case after you have accepted a settlement offer. The only time that you could pursue a medical malpractice case after accepting a settlement is if you discovered new injuries related to a separate act of malpractice that were not addressed in the first malpractice action.
When you accept a settlement, you sign a release of claim. This means that in exchange for the settlement offer, you agree to release the defendant from any further actions, thereby forfeiting your right to pursue damages. If you have been offered a settlement by your doctor’s insurance company, it is very important that you understand your right to reject this offer, and that you contact an attorney immediately for legal counsel.
Yes, you can file your medical malpractice lawsuit against any medical or healthcare professional who acted in a negligent manner, thereby causing or contributing to your injuries. This may include:
- A nurse;
- A pharmacist;
- A midwife;
- A physical therapist;
- A hospital; or
- Hospital employees.
If you think that you may have a claim against a party other than one listed above, contact our law office and we can help you to determine the best course of action moving forward.
No, you cannot sue for what might have happened during a medical procedure. While we acknowledge that the possibility of what might have happened can be extremely distressing and discomforting, you can only file a lawsuit in the event that you have suffered actual damages. The potential of damages is not enough to bring forth a civil action.
A misdiagnosis (or a delayed diagnosis) is considered to be medical malpractice in the event that the misdiagnosis led to actual harm. For example, if your cancer was misdiagnosed (x-rays were misread, or was not received at all) and if as a result of that misdiagnosis your treatment was delayed and the cancer spread, making it more difficult to treat and causing you economic and noneconomic losses, the yes – you may file a malpractice suit. If the misdiagnosis did not result in serious harm – i.e. you were diagnosed with a simple cold, when really you had strep throat, which healed on its own in two weeks’ time – a medical malpractice claim is probably not appropriate.
Preponderance of the evidence refers to the amount of evidence that the plaintiff is required to prove during a civil case (in a criminal case, the “burden of proof” is “beyond a reasonable doubt”). In Pennsylvania, preponderance of the evidence means that more than 50 percent of the evidence supports the plaintiff’s claim, or that the plaintiff’s claim is true more likely than not. Essentially, while there is no room for doubt about a defendant’s guilt in a criminal case, in a civil case, the plaintiff must prove that it is 51 percent (or more) likely that the defendant committed an act of malpractice, and that the malpractice was the cause of the plaintiff’s injuries.
In a state that follows a pure contributory negligence rule, a plaintiff cannot recover compensation from a defendant in the event that the plaintiff is found to be even one percent at fault for their injuries. Jurisdictions that use contributory negligence include Washington D.C., Virginia, Alabama, Maryland, and North Carolina.
Rather than contributory negligence, most states follow either a pure comparative fault, or a modified comparative fault law (Pennsylvania follows the latter). In a pure comparative fault state, plaintiffs can pursue compensation even if they are 99 percent at fault, and the damages that they recover will be reduced in proportion to their degree of fault. In a modified comparative fault state, plaintiffs can recover damages assuming they are no more than 50 or 51 (depending upon the state) percent at fault, and their damages will be reduced in proportion to their degree of fault.
If you are pursuing a medical malpractice case in Pennsylvania, then, you can seek damages so long as you did not contribute to your injuries at a percentage greater than 51 percent.
Before a doctor implements a plan for your care, for example, a surgery, they must obtain your informed consent. This means that you have the right to be fully informed about the course of treatment, including any potential risks associated with the treatment as well as alternatives, and that you must give your consent to the treatment knowing of these risks. During the process of giving informed consent, you are told about the risks and benefits of the treatment/procedure, you can ask any questions, and you are given time to think about your decision moving forward.
A doctor has a legal obligation to get your informed consent. If you do not give informed consent and suffer harm, you may be able to file a medical malpractice action.
An attorney may turn down a medical malpractice case for a number of reasons. The most common reasons include: The amount of damages that the plaintiff will recover are not enough to justify the cost of pursuing the claim, especially if litigation is necessary; whether or not the healthcare professional breached the standard of care owed to the plaintiff is questionable, and there are strong defenses to this allegation; or/and causation is unclear, and the defense has a strong argument against a plaintiff’s claim of causation.
At the law firm of Cohen, Placitella & Roth, P.C., if we believe that you have a strong case, we will not turn it down. We are not afraid of a challenge, and will work hard on your behalf.
Also known as an Affidavit or Merit or Offer of Proof, the filing of a Certificate of Merit is a legal requirement that that is meant to reduce the number of medical malpractice lawsuits that are filed. The Certificate of Merit is an opinion from a medical expert/certified physician offering evidence that the physician has reviewed the plaintiff’s medical records, and based on the review, believes that there is a strong argument for an act of malpractice committed by the defendant based on the fact that evidence suggests the defendant deviated from the appropriate standard of care. The Certificate of Merit is required before the lawsuit can proceed. In Pennsylvania, a Certificate of Merit must be filed within 60 days of the date that the complaint (malpractice action) is filed.
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Medical Malpractice Fact Sheet: Philadelphia Case Filings
The Unified Judicial System of Pennsylvania, which is the unified state court system for Pennsylvania, annually reports medical malpractice case filing statistics for our state, as well as statistics related to medical malpractice jury and non-jury verdicts by year. Some of the more interesting facts include:
- Philadelphia County has the highest number of medical malpractice case filings in the state of Pennsylvania, and since 2010, there have been on average about 400 medical malpractice cases filed in Philadelphia each year.
- In 2013, the exact number of medical malpractice case filings was 382, which was down just 1.8% from 2012.
- In 2013, there were 20 medical malpractice cases that went to trial, with 11 of those cases being decided in the favor of the defendant (meaning the doctor won at the trial level). This means that over 350 medical malpractice cases settled or were dropped.
There are so many health care centers and providers in the Philadelphia area, and a number of university hospitals where Philadelphians go to obtain much needed care. Inevitably accidents, mistakes, and oversights made my medical staff will undoubtedly occur.
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