Our series looking into the options you need to consider after serious injuries occur continues with a look at medical malpractice next steps.
Medical malpractice cases can be frightening and difficult to comprehend. Often, the patient, or the patient’s family, is reeling and in a state of disbelief due to an often painful medical error. After an injury occurs due to inadequate medicare care, the patient or family member may ask: “What do we do next?” or “What do we do now?”
If you’re suffering from serious injuries due to medical negligence, please don’t hesitate to contact us via phone at 864-235-4999 by tapping the button below or by filling out our request form for a free consultation.
For nearly 20 years, our law firm has represented Upstate families and patients in medical malpractice cases against doctors, and hospitals, including Prisma Health and St. Francis.
Thomas Creech has represented patients in some of the most complex medical malpractice cases throughout the upstate of South Carolina including Greenville, Spartanburg, Pickens, Anderson, Oconee and Union.
For more information on Medical Malpractice cases we’ve handled since opening in 2003, click the button below
Common Questions in Medical Malpractice Cases
Even after a medical malpractice incident occurs, doctors and nurses usually don’t admit to being negligent in their handling of a patient. Your attorney will conduct an investigation that includes gathering and reading medical records, performing medical literature searches, and consulting with medical experts.
The results of the investigation will provide some clarity for the following common questions
- Was I a victim of medical malpractice?
- Do I have a case?
- Is a Medical Malpractice case expensive?
- Do I have to pay the attorney’s fees upfront?
- How do I find out or determine if my doctor committed medical malpractice against me?
- How long will the case take?
- Will I go to court or will my case get settled?
- Will I have to pay out of pocket for anything in my medical malpractice case?
How do you define Medical Malpractice?
The term “Medical Malpractice” has been used repeatedly throughout this guide. Another common term used to describe inadequate medical care is “Medical Negligence.” Just to clear up any confusion regarding these two terms, Medical malpractice and medical negligence mean the same thing: a doctor, nurse or other medical professional didn’t provide reasonable medical care, which resulted in the patient sustaining an injury.
The next important question is: what is the medical “standard of care”? The standard of care is a rule that a reasonable, competent medical provider must follow in a given medical situation. Violating the “standard of care” rule can serve as potential evidence of medical professionals in medical malpractice cases.
Some examples of common injuries or occurrences that may result from medical malpractice:
- Injury during surgery
- Surgical error
- Unnecessary surgery
- Wrong-site surgery
- Wrong medication or dosage
- Failure to diagnose an illness
- Failure to treat or prevent a stroke or
- Misdiagnosis of an illness or condition
- Birth injury – hypoxic-ischemic encephalopathy
- Leaving behind a sponge or surgical instrument in a patient
- Failure to treat a condition
- Failure to recognize a condition, sickness, or illness in a patient
- Injury to the bowel or intestine during surgery
- Failure to recognize or diagnose a blood clot in the lung or elsewhere
- Failure to recognize or diagnose appendicitis
- Sudden death occurs at a hospital
- Pulmonary embolism
- Failure to treat compartment syndrome
So your lawyer will begin your case by asking and trying to answer the question did the medical professional violate the medical standard of care and was therefore guilty of medical malpractice.
What should I do before I meet with a medical malpractice lawyer?
Before you meet with the medical malpractice lawyer, you may want to obtain at least some of your medical records. Any records from the doctor’s office could be useful. Also, you should ask the hospital for your medical records. You will want to obtain records such as operative reports, triage or Emergency Room Records, lab test results, Consultation Notes, Admission records, diagnostic tests such as CT scans, MRI, or X-ray reports and hospital discharge reports.
These records will help your attorney understand your case quicker. If and when an attorney decides to take your medical malpractice case, your attorney will order a complete set of your medical records.
Next Steps
At your meeting with the medical malpractice attorney, you will discuss with the attorney whether the attorney feels like you have a case, or whether the case needs to be investigated further. You and the lawyer can agree on what steps to take next. Your lawyer may begin a full investigation or he may ask you to obtain some more records before the attorney agrees to undertake formal representation.
Questions Lawyer will Ask Before Taking Case:
- What were your injuries and what is the nature, extent, and duration of those injuries? Are your injuries permanent or only temporary? Were your injuries serious or minimal?
- How difficult will it be to prove your case? Your lawyer will help you answer that question.
- Will the expenses of the case outweigh any potential recovery? Your lawyer will advise you about that issue as well.
Attorney Fees
Most medical malpractice lawyers will take your case on a contingency fee, meaning that the lawyer is paid a percentage of the total recovery, whether by settlement or verdict from a jury. If there’s no recovery, then you owe your lawyer nothing. The lawyer’s fee is “contingent” upon there being a recovery on your behalf. The percentage can range from 33.3% on the low end to 50% on the high end.
Case expenses
Investigating and bringing a medical malpractice case is not free. In fact, medical malpractice cases are very expensive. Medical records, reports, expert witness fees, deposition costs, travel costs, and court costs contribute to the expenses associated with medical malpractice cases. Your lawyer may request for you to advance some of the costs or your lawyer may agree to advance all of the costs. Many lawyers will agree to advance all of the costs of the case and then will be reimbursed out of the recovery, if any, for the costs advanced or incurred. In addition to paying your lawyer his fee, you will also need to repay your lawyer out of the recovery for the costs that the lawyer incurred or advanced in pursuing your case. Therefore, it’s usually a fee plus costs arrangement.
Expert Witnesses
Almost all malpractice cases require expert witnesses to testify. In South Carolina, to begin a medical malpractice case, the plaintiff must file an affidavit from an expert stating at least one instance of negligence by a medical provider. From there, almost all cases will require testimony from an expert witness to state and establish the standard of care and that the medical provider in your case violated the standard of care. Also, a medical expert witness is usually called upon to opine on whether the injuries sustained were caused by medical malpractice. Expert witnesses are costly and are part of the case costs.
Additional Questions About Medical Malpractice Cases
Will your case settle or go to trial?
The answer to that question varies in each case. Some cases settle and some cases go to trial. Your lawyer can give you more tailored, specific advice about whether your case is one that will settle or whether it will have to go to trial.
What is the value of my medical error case?
Again, this question is unique to each case. Some malpractice cases are worth more than others, depending upon the nature, extent, and duration of the injuries coupled with the ease or difficulty of establishing liability.
What damages am I allowed to claim?
In short, all the damages the law allows, including, compensation for a second do-over surgery, lost wages, pain, suffering, permanent impairment, loss of enjoyment of life, inconvenience, disability, scarring, and future medical costs, if any. Each case is different in this regard, and the damages allowed to be claimed will depend upon the evidence in each case.
How long will my case take?
Again it varies-it can be a few months or it can be years. Once your case is filed with the court, in South Carolina it usually takes anywhere from ten months to eighteen months for it to be resolved either through a settlement or through trial. Some of these cases do not have to be filed with the court and can be resolved without formal litigation.
Who pays the settlement or verdict?
If you settle your case or win at trial, recovery is usually paid by the doctor’s or hospital’s insurance company. Some hospitals set aside money in a fund to pay claims, settlements, or verdicts they lose.
Monetary Caps or Limitations in South Carolina
Are there limitations or caps on monetary damages that a jury can award in South Carolina medical malpractice cases?
Yes. Under South Carolina law, there is a limit to the amount for non-economic damages, such as pain and suffering. Also, if the hospital is a public or governmental hospital, the South Carolina Torts Claims Act places limits on the amounts that can be recovered. Furthermore, there are limits on how much a charitable hospital has to pay as well.
What is mediation?
Mediation is a process that the parties go through to try and settle the case. In Greenville County, mediation is required in all cases, including medical malpractice cases. The parties usually agree on a mediator, who most times is a lawyer, who is wholly independent. Mediation is usually held at the mediator’s office in conference rooms there. The role of the mediator is to facilitate settlement discussions. The mediator does not decide the case. If a case is not settled at mediation, then it can go to trial after mediation.
What is Pre-suit mediation?
In medical malpractice cases, the parties are required by South Carolina law to go through a pre-suit mediation process. The plaintiff will file a notice with the Court and once the defendants are notified, the parties set pre-suit mediation. If the case is resolved in pre-suit mediation, then the case is over and a formal lawsuit is never filed. If the case is not settled in pre-suit mediation, then the plaintiffs can file a formal lawsuit.
Contact Our Office for a Free Case Consultation
Hopefully, you have gained a general understanding of medical malpractice cases in South Carolina. However, please do not rely upon the information in this article to serve as formal legal advice to you.
If you have other questions about medical malpractice, please don’t hesitate to contact my office. You can call 864-235-4999 or fill out the contact form below. We will meet with you for free and consult with you on what steps to take next.
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