MEDICAL MALPRACTICE – WHAT IS IT AND WHAT IS REQUIRED?
By Norma A. T. Jett
In our line of work at Ness & Jett, LLC, no one ever comes into our office to tell us, “Mom had surgery last week and everything went great.” No, the folks who visit us about a medical matter are often devastated. Something went wrong. The surgery that was to fix everything ended in death or disability. A nurse got the medicine wrong. A doctor cut what should not have been cut. The monitor that was to beep if the patient’s heart rate was wrong, simply didn’t. So, when it goes wrong, what should be done? How is the patient or the family to be compensated? Sometimes, the right course is a medical malpractice case.
Medical malpractice is a broad term that basically means improper care or conduct by a doctor, nurse, pharmacist, physical therapist, hospital, or other healthcare provider, that harmed a person. Medical malpractice, or medical negligence, can be the doing of something that should not have been done, a failure to do that which should have been done, or just doing something in the wrong way. A medical malpractice case is rarely simple. In 2005, in South Carolina, it became even more complicated, as “tort reform” measures came into law, requiring persons injured by healthcare professionals to jump through additional legal hoops to achieve justice. This is where the assistance of a skilled lawyer is crucial.
Our work in a medical malpractice inquiry begins with talking with the client. This person may be the one who was injured by a healthcare provider or may be a loved one of the patient. The discussion may be by phone, in our office, in the office of an attorney colleague in another city, or even in the family home.
Next, if our discussion leads us to believe medical malpractice occurred, we review the records of the care. These may be provided by the client or obtained by us. We are not doctors, but we review the records with a view toward what is required of a medical malpractice case, considering whether we believe we can prove medical malpractice based on the records.
If the review of the records indicates a case of medical malpractice, we must have an expert review the records. Depending on the type of care in question, this person may be a nurse, a doctor, or some other healthcare provider. The expert must be qualified within the definitions and boundaries set forth in the South Carolina statutes. To pursue a case, the qualified expert must state under oath, in an affidavit, that there was a standard of care applicable to the care provided, that the care provided fell below that standard of care in at least one specific way, that the violation, or “breach,” of the standard of care harmed the patient, and that the harm would not have occurred but for that breach. If the expert determines this is the case, the affidavit is obtained. Sometimes, the expert tells us there is no case. Perhaps nothing was done wrong, or the wrong did not cause the problem.
Once the expert signs his or her affidavit, a Notice of Intent to Sue is filed and served upon the healthcare provider. That Notice invites the provider, his insurer, and his attorney to mediate the case with the patient and us in an attempt to settle the matter. The cases are rarely settled at that stage, but the process is a requirement imposed by the 2005 tort reform legislation. If no settlement occurs as a result of the Notice, the next step is to file the actual lawsuit in a court.
Once the lawsuit is filed, the parties, through their lawyers, engage in a process known as “discovery.” As it sounds, discovery is the process by which each party learns the other’s case. That is when we learn who each party believes are the witnesses, or persons with knowledge of the matter. We disclose expert witnesses, the persons qualified to give opinions in the case. We exchange documents. Depositions are taken. A deposition is sworn testimony in advance of a trial, so that the attorneys may learn what the witness knows and would testify to at trial. Eventually, again, the case is mediated. If no settlement occurs, the case presses on toward trial. These cases are not readily settled. They are almost always hard fought battles. Throughout these processes, we guide and advise our clients, and work diligently to achieve justice in the form of compensation to the patient or family members. The process is neither quick nor easy, and skilled legal representation is a must.
Clients with potential medical malpractice cases don’t just walk in with a bag of money and say, “Use what you need.” In a medical malpractice case, we are not paid up front. We take no fee unless we achieve compensation for the client. We front the costs of the expert witness review and the discovery process, and these costs are reimbursed to us, and our fees are paid, from any settlement or verdict paid in the case. For this reason, we are choosy about the cases we take, and we pride ourselves on taking valid cases, in which we give quality work. If we take your case, these matters will all be set forth in writing in a written agreement.
Like all civil cases, there is a time limit for bringing a medical malpractice case to court. That limit, or statute of limitations, generally runs from the date of the negligent conduct. For private, nongovernment, providers, the limit is three years. For government providers, the limit can be two years or as little as one year. A few legal circumstances can extend the limit. This is a short time in which much must be done to pursue a medical malpractice case. If you believe you have a case, do not delay. Contact an attorney immediately.
LET US HELP
If you or a loved one has been injured or killed by the mistake of a healthcare provider, call Ness & Jett, LLC, today, and schedule an appointment to talk with one of our excellent attorneys.