REAL FACTS ABOUT MEDICAL MALPRACTICE
From Jonathan C. Juhan, Attorney At Law
People expect good results from medical treatment, but when things go wrong, people often ask lawyers about suing for Medical Malpractice. This is especially true where a doctor has not been compassionate or complete in explaining what has happened. You need to talk with Jonathan Juhan, a local Board Certified Trial Lawyer and discuss your rights. You need a lawyer who has experience.
This section explains a few important aspects of the law of malpractice.
DIFFICULT TO PROVE - Medical malpractice cases are very difficult to prove. The injured person must prove:
1. The Defendant (the doctor, nurse, hospital, etc. being sued) was negligent, and
2. That negligence probably caused the injured person's injuries or damages.
Negligence occurs when a doctor or nurse fails to exercise ordinary care for the treatment or area of practice. That level of care is defined by the conduct of similar medical providers, and is sometimes referred to as the "standard of care."
Many bad medical results do not result from negligence. A doctor or nurse does not have to be correct in order to exercise ordinary care. This is often difficult for people to accept, in light of their expectations.
CAUSATION is equally important to the case. The injured person must prove their damages (death or injury) were caused by negligence. Since the plaintiff is usually sick or injured at the time of treatment, he must show the negligence magnified the illness or injury, or created a new condition, resulting in a significantly worse outcome. In other words, had the malpractice not occurred, the patient's condition would have been much better. This proof must be established on the basis of probability. Showing a person might possibly have done better is not enough.
DOCTORS AGAINST DOCTORS - Testimony regarding negligence and causation must come from a physician in the same field of practice as the Defendant. Without this testimony, the lawsuit will fail. It is often difficult to obtain medical testimony in a malpractice case. As a matter of fact, a very detailed report is necessary to even proceed with medical malpractice case.
EXPENSIVE TO LITIGATE - Malpractice cases require a large investment of time and money; an attorney may spend S50.000.00 to $100,000.00 preparing a case for trial. These cases are also very difficult to win. Many valid malpractice cases are never prosecuted, because of the expense and degree of risk.
LIMITATIONS TO NOTICE - Texas has a two (2) year statute of limitations in tort actions. All suits not filed by two (2) years from your date of injury (usually, the date of the treatment complained of) are barred forever. Texas law also requires written notice of a health care liability claim at least sixty (60) days prior to filing suit. Written notice of a claim must be given to medical providers.
MEDICAL RECORDS - It is usually better for the case for the injured person, or their family to obtain medical records from the medical provider in question. Such records should be obtained without raising an suspicion that a case is being considered.
TORT REFORM - Recently our Texas Legislature has significantly changed the laws regarding medical malpractice cases. There have been significant "caps" put on cases to limit the recovery of non-economic damages. Such damages include recoveries for physical pain, mental anguish, and physical impairment. Such caps limit such damages to $250,000 for any one provider, and a maximum of $750,000 for all medical providers. Such caps will severely limit the number and types of cases attorneys will now be able to prosecute, even in blatant situations.
I hope this information helps you understand more about Medical Malpractice cases, and what is involved in any effort to prosecute and win a case in this area of the law. I look foward to personally meeting with you and your family regarding your case. Thank you in advance for your business. Jonathan Juhan
