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DO I HAVE A MEDICAL MALPRACTICE CASE?
Under the law in all states, a plaintiff in a medical malpractice case must be able to prove three issues. First the patient must show there was negligence by one or more healthcare providers involving the patient’s care. Second, that this negligence caused the injury or death. Third the plaintiff must prove damages that are the result of negligence. In Nevada a healthcare provider must review the case and agree there is negligence. That provider must be in the same or similar specialty as the provider being sued.
Proof of negligence is dependent on the facts of the case and on expert testimony to show that the medical care was below an acceptable level (standard of care). Most of the evidence that is necessary to show the facts of the case will be found in the medical records. This evidence is crucial in allowing medical experts to base their opinions about the standard of medical care provided in each specific case. Thus, the first step in evaluating any medical malpractice case is a critical review of the medical records to determine if you have a valid malpractice case.
Most attorneys rely on reviews by physicians who are hired to review the medical records and offer opinions about whether there is any negligence in care that caused an injury or death. Unfortunately such hired consultants may offer opinions that are not supportable in court, or they may cause the attorney to reject valid claims.
Dr. Litt with his medical training and 40 years of obstetrical and gynecological practice in Florida, Kentucky and Nevada and over 10 years as a medical malpractice attorney is able to review the medical records of all potential cases and personally decide if there is a case. Dr. Litt is then able to consult with the appropriate medical experts in many different fields as a result of his contacts.
Another problem that many attorneys have in evaluation medical malpractice cases is they are dependent on physicians as experts. Many of these physicians do not understand legal causation. Juries are made up of ordinary citizens and they must decide there is a legal relationship between the negligence and the injury or death. Most physicians look at care and outcome in a strict medical perspective. As a result they often miss the crucial elements of a case and often do not believe there is sufficient evidence to support a relationship between negligent care and injury or death. Therefore, it is critical to have an attorney who is experienced in both malpractice law and has a sufficient medical background to be able to take medical evidence and opinions and develop a case within the requirements of the legal system.
WHAT CAN I RECOVER IN A LAWSUIT?
There are two types of damages that are recoverable in a medical malpractice case. They are general damages are non-economic such as pain, suffering, disabilities, etc. In Nevada general damages are capped at $350,000.00. Economic damages are not capped, but depend on the facts. If a plaintiff is injured and there are ongoing medical care, there is no artificial limit on what the plaintiff can recover. Past and future medical care can easily exceed seven figures.
Another form of economic damages is loss of future income. Loss of earnings is recoverable in wrongful death in which the heirs of the decedent were dependent upon the decedent’s income and in severe injuries in which the injury to the plaintiff will affect their ability to earn money in the future, even if they have no prior earning history.
WHAT IS A SETTLEMENT?
A settlement is an agreement between parties to resolve a case. The defendant doctor and/or hospital agrees to pay a certain amount of money to the plaintiff in order to avoid a trial or arbitration. A settlement ends the case and the plaintiff is required to dismiss the action in court. As part of the settlement the defendant doctor/hospital will specifically deny any negligence or liability for the plaintiff’s claim of injury or death. Also, most settlements are confidential so that the specific facts of the case and the amount of settlement are not made public. While most plaintiffs prefer the certainty of a settlement over the uncertainty of a trial, it is important that the victim of medical malpractice to have an attorney who understands how to obtain a maximum recovery from a settlement and is willing a capable of pursuing the case through jury trial when a settlement offer is not reasonable.
WHAT IS AN ELDER ABUSE/NURSING HOME NEGLIGENCE?
A claim can be filed for negligence when an elderly patient suffers an injury or death as the result of neglect in a nursing home. Generally, these claims are similar to any claim of negligence by a patient in a hospital. However, when an elderly patient dies as a result of such neglect, the heirs can claim damages for both the death and for pain and suffering the patient experienced before death. In Nevada when such neglect occurs in a nursing home or assisted living or other facilities that care for the elderly, double damages may be applied.
WHAT IS THE STATUTE OF LIMITATIONS AND HOW DOES IT AFFECT MY CASE?
Every state has an arbitrary time limit within which a plaintiff must file a claim in court or loss the right to do so forever. The statute is not the same in every state. Even in Nevada the rules are not the same between medical malpractice and other types of claims. The rule in medical malpractice in Nevada is one year from the date of the injury or death. In wrongful death, the date is usually alterable. However, in cases where the plaintiff is still alive and brings a claim, the date of the negligent act may not be known. In such cases the rule allows the plaintiff to bring an action for medical malpractice within one year of the time when the plaintiff first became aware of or should of become aware of the negligent act. Because the correct interpretation of this statute in such cases involved a knowledge of the law and precedents, it is best to consult with an experienced medical malpractice attorney whenever there is any question about the statute of limitations.
There is at least one significant exception to the general rule of one year for medical malpractice cases. In cases involving brain or spinal cord injury to a child, the action must be filed by age 11.
Again, because the law in this area is very specific and unlike laws in other personal injury or death cases, it is important to consult an attorney with experience in all types of medical malpractice claims.
WHAT IS NEEDED TO PROVE A WRONGFUL DEATH CLAIM THAT IS DUE TO MEDICAL MALPRACTICE?
The most important issue in any wrongful death claim is the cause of death. To succeed on a wrongful death claim, the plaintiff must be able to prove that there was negligence on the part of a doctor or nurse that caused the death of the patient. In almost any hospitalization, there are usually multiple acts of negligence, including medication errors, lab errors, or other treatment errors, that may or may not be related to the cause of death. When a patient dies, the doctors involved in the care of the patient may not ask for an autopsy. Because of the importance of linking the cause of death to negligent care, an autopsy is usually required to be successful in a wrongful death claim. Without an autopsy to establish the specific cause of death and the significance of any underlying conditions, it may not be possible to prove that negligent care was the cause of death.