A Patient’s Guide to Medical Malpractice Cases

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, or even denial, that they, like thousands of other patients, have been harmed by medical error. So, after a patient or family member has been harmed or injured by a doctor or nurse, the patient or family member may ask: “What do we do next?” or “What do we do now?”

medical malpractice cases

Medical errors can change your life forever.

If you have been harmed and want to hold the doctor or nurse legally accountable for the injuries you have sustained, then this blog post is for you. This information is to serve as a general guide for a patient or family member who is a victim of medical malpractice under the laws, customs, and practices in South Carolina. In situations of medical malpractice, there are usually many questions, but no answers or resources or places or people to turn to for help, assistance, and guidance in the aftermath of medical error or malpractice. I am writing this article based upon my experience in representing people in South Carolina courts for claims of medical malpractice under South Carolina law. So if you are reading this to find out about medical malpractice in states other than South Carolina, then please read no further.

Common Questions in Medical Malpractice Cases

To begin with, there are plenty of questions for an injured patient and his or her family. In fact, sometimes it is a mystery as to what happened. Doctors and nurses usually do not admit to their patients that there has been medical malpractice. In fact, doctors and nurses usually do not believe they did anything wrong even when the patient has been injured. So an investigation needs to be performed. The investigation, usually done by a medical malpractice lawyer who you have retained, involves gathering and reading medical records, performing medical literature searches, and consulting with medical experts.

Some common patient questions in medical malpractice cases are: Was I a victim of medical malpractice? Do I have a case? Is a medical malpractice case expensive? Do I have to pay attorney’s fees up front? How do I find out or determine if my doctor committed medical malpractice against me? What is the average time it takes? 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?

It’s difficult for a patient to know whether the patient is a victim of medical malpractice. If you believe, even in the slightest, that you have been harmed because of a careless doctor, nurse, or other medical professional, then trust your gut or your instinct and reach out to a medical malpractice attorney who can help you.  An attorney can help you answer your questions and help you understand if you have a good case against the medical professional.

How do you define Medical Malpractice?

To begin with, let’s consider this question: what is “medical malpractice”? What is “medical negligence”? Medical malpractice and medical negligence mean the same thing; they are two terms to describe the same thing: a doctor, nurse or other medical professional has failed to act like a reasonable medical professional and caused patient harm.

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. If the medical provider has violated the standard of care, or has fallen below the standard of care, then that is evidence that the medical professional has committed medical malpractice/negligence.

medical malpractice casesSome 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 occurring 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 if I am a victim of a medical malpractice?

First set up a free consultation with a medical malpractice attorney. You should reach out to a medical malpractice attorney quickly. Your lawyer will conduct an investigation into your case. But an investigation takes time. If you wait, you may not leave your lawyer enough time to investigate your potential case!

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 would be helpful. 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 tests results, Consultation Notes, Admission records, diagnostic tests such as CT Scan, MRI, or Xray reports, and hospital Discharge report. These records will help your attorney understand your case quicker and will help the attorney give you a quicker idea of whether you have a medical malpractice case that needs to be looked into further. Your attorney, if he decides to take your medical malpractice case, 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.

Some considerations in deciding whether you have a case:

  1. 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?
  2. How difficult will it be to prove your case? Your lawyer will help you answer that question.
  3. 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 is 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. There are many costs associated with your case such as, medical records, reports, expert witness fees, deposition costs, travel costs, and court costs. 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. So, in addition to paying your lawyer his fee, you will also have to repay your lawyer out of the recovery for the costs that the lawyer incurred or advanced in pursuing your case. Therefore, it is usually a fee plus costs arrangement.

An expert witness is required in almost all medical malpractice cases

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 in fact 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. You 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 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 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, contact Greenville SC Medical Malpractice Lawyer Thomas Creech today. You can call 864-235-4999 or fill out our confidential Contact Form. We will meet with you for free and consult with you on what steps to take next.