Cancer in Women
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In order to determine if there is "medical malpractice" it is necessary that a
medical expert be retained to consult with the plaintiff's attorney.
Actionable MEDICAL MALPRACTICE
. . .(also called medical negligence) occurs when a physician fails to properly treat a
medical condition and the negligent act or omission is the cause of a new or
aggravated injury to the patient. Obviously the physician cannot be responsible for the
original underlying medical problem. The negligence in medical malpractice cases
can occur in a variety of situations including but not limited to:
There may be "medical malpractice" by a delay or failure in diagnosing a disease; or
A surgical or anesthesia related mishap during an operative procedure could constitute "medical malpractice"; or
Malpractice may involve the physician's failure to gain the informed consent of the patient for an operation or surgical procedure; or
A physician who has made the correct diagnosis, may thereafter commit malpractice by failing to properly treat the disease process;
Misuse of Prescription Drugs or a Medical Device or Implant can also be medical malpractice.
It is the attorney's obligation to determine as quickly and efficiently as possible
whether there is a good, actionable case. This is so because MEDICAL
MALPRACTICE cases are by their very nature, complex, expensive to pursue, have a
high risk of no recovery, and often involve a client's "personal" attachment.
The first step in the process involves the potential client entering into an agreement
with the attorney in which agreement sets forth the method of attorney compensation.
Typically the attorney agrees to advance all costs, only to be repaid costs in the event
of recovery, and to work on a contingent fee basis, that is the attorney would receive a
percentage of the gross recovery. Thus, the client will endure no economic loss in the
event of no recovery.
During the initial client contact, the attorney will obtain a detailed medical history
during which the attorney should obtain the names of all physicians and hospitals
who have rendered medical treatment to the client. It is valuable for a client to prepare
a written summary (timeline) of all medical treatment including dates, doctors,
symptoms, conversations with medical providers, and treatment received. Thereafter,
all relevant medical records are obtained by the attorney. In many medical
malpractice cases, proof of negligence is found in these records.
This expert should be well qualified to give a medical opinion, and is therefore
frequently board certified in the relevant field of medicine. If, after a thorough review of
the pertinent medical records, the medical expert concludes "with reasonable medical
certainty that the action or inaction of the defendant physician was the cause of
damage to the plaintiff," it is appropriate to file suit against the physician/hospital.
Filing suit begins the legal advocacy process which may cover a period of several
years. During this period both parties exchange a series of documents. In the first
stage, the legal pleading stage, the parties set forth with precision their legal theories.
In the second stage called, the discovery stage, the facts to support the various legal
theories are developed. If the parties are not able to resolve their differences the case,
now in its third stage, will go to trial before a judge and jury.
This informational piece was prepared by Monheit, Silverman & Fodera. If you would like more information on this topic, call us at (800) 220-LAW1, or use the "Do I Have A Case?" button on this web site.
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