- What is medical malpractice?
Medical malpractice occurs when a physician fails to
provide appropriate healthcare according to established medical
standards and, as a result of that failure, causes injury to the
patient that otherwise would not have occurred. A physician can make
a medical mistake by doing something that should not be done, or by
failing to do something that should be done.
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- How can you determine if a doctor, hospital or other
healthcare provider has committed medical malpractice?
The determination of medical malpractice requires a
thorough evaluation of all the medical records by physicians, nurses
or other healthcare providers of similar background and training as
the doctor whose treatment is being reviewed. The expert must
determine that the doctor failed to provide care according to
accepted standards of medicine or surgery. Medical expert testimony
is required to both prove errors on the part of the physician and
the additional injuries caused by the error that would not have
occurred had care been provided appropriately.
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- How do you know if you have a case?
In order for you to know if you have a medical
malpractice claim, you need to have the assistance of experienced
medical malpractice attorneys to evaluate both the legal and medical
aspects of your potential claim. The attorney must determine whether
the injury, or the discovery of the injury, is sufficiently recent
in time that it is not barred by the Statute of Limitations defense.
Next, the attorney must obtain all relevant medical records,
organize them and analyze them to see if the medical facts support
the claim. If the medical facts appear to support the claim, the
attorney must select knowledgeable and articulate experts who are
willing to review the potential case, give an honest opinion on the
physician’s conduct and are willing to testify at Trial in support
of your claim. Only after your attorney has obtained the necessary
expert testimony to support claims of medical negligence and the
relationship of that negligence to your injuries, do you know that
you have a case.
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- How long do you have to bring a medical malpractice
lawsuit?
The period time within which an injured patient can
bring a medical malpractice lawsuit is called the Statute of
Limitations. The Statute of Limitations for bringing a medical
malpractice lawsuit vary from state to state. In New Jersey, an
injured patient has two (2) years from the date of the injury caused
by the malpractice to bring a lawsuit or, in the event that the
patient does not learn of the possible malpractice until after the
injury has occurred, two (2) years from the date on which the
patient reasonably should have known that malpractice occurred. On
the otherhand, in New York a patient has 2½ years from the date of
the negligent treatment to bring a malpractice lawsuit. New York
does not recognize, except in very limited circumstances, that a
patient may not discover malpractice until after the 2½ years has
passed. In addition to the general state Statute of Limitations
described above, there are often specialized Statutes of Limitation
that pertain to public entities, such as federal, state and local
governments and their agencies. Because of these specialized
Statutes of Limitation, you should bring any potential medical
malpractice claim to the attention of an experienced malpractice
attorney as soon as it is discovered in order to protect your
rights.
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- If you signed a waiver or consent form, have you
waived your rights?
All medical treatment must be provided with the
patient’s informed consent, except in extraordinary emergency
situations. Patient sign a general consent form for treatment upon
admission to a hospital and a specific consent form prior to
having an invasive procedure or operation performed upon them. The
specific consent form for a procedure or operation must be signed
by the patient indicating that the doctor has explained the nature
of the patient’s problem, the suggested treatment as well as
alternative treatments, the risks attendant to those various
treatments and that the patient has had an opportunity to ask
questions before consenting to the recommended treatment. Signing
a consent form does not waive a patient’s right to bring a
medical malpractice claim if the doctor fails to provide medical
care in accordance with accepted medical practice.
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6. What is Lack of Informed Consent?
Lack of Informed Consent occurs when the patient
develops an injury during a medical procedure or operation that is a
risk recognized by the medical community but undisclosed to the
patient of the procedure and, had the patient been advised of that
risk beforehand, the patient would have not consented to the
treatment that was performed but would have chosen one of the
alternatives. The determination as to whether a patient would have
chosen the alternative treatment if the undisclosed risk was known
is determined by the jury based on what the jury feels a reasonable
patient would have done if the withheld information had been given
to the patient.
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7. Can anything be recovered if
medical malpractice causes a patient to die?
Yes. This is called a Wrongful Death action.
Wrongful Death actions are often brought in connection with
medical malpractice claims, when the patient dies as a result of
the medical negligence. Recovery for the medical malpractice claim
during the patient’s life includes recovery for pain and
suffering, as well as economic losses. Recovery under a Wrongful
Death action is limited to economic losses suffered by those who
were dependent on the deceased patient.
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8. What steps does an experienced
medical malpractice attorney take to properly and fairly evaluate a
potential claim?
An experienced medical malpractice attorney first
takes a detailed history from the client to learn all of the
medical treatment the individual has received, so that the
necessary medical records can be obtained. Next, assuming that the
medical malpractice attorney believes that there is a case to
pursue, all of the relevant medical records must be obtained from
the providers. After obtaining the records, the records are
organized according to provider and are analyzed by the attorney
or by an experienced Legal Nurse Consultant and/or physician
working with that attorney. Based on a medical review of the
records, the attorney must make a determination as to what expert
medical witnesses are needed to prove plaintiff’s case. Once
that is determined, the records are forwarded to those medical
expert witnesses, who charge a fee for review of the records. Upon
receipt of a positive opinion from a medical expert witness that
the defendant or defendants deviated from accepted standards of
care and thereby were medically negligent AND the receipt of a
medical expert witness’s testimony that the medical negligence
caused injury which otherwise would not have occurred, then the
attorney knows that there is a viable medical malpractice claim.
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9. What can a physician/attorney do
for you that a regular attorney cannot?
Medical malpractice cases are won primarily on the
medical records and the medical expert opinion in support of the
plaintiff’s claim. A physician/attorney is able to assess the
medical records and the theories of medical negligence
independently from the medical experts to whom they are sent. If a
medical expert fails to appreciate a significant fact or overlooks
some medical information, a physician/attorney is able to
recognize that error. This saves time and money when working with
medical expert witnesses. Furthermore, a physician/attorney is
able to effectively research the medical literature to find the
necessary medical articles, journals and texts to support the
plaintiff’s claims and, perhaps more importantly, defeat the
defense’s claims of no malpractice.
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10. Can a medical malpractice law
firm handle highly specialized areas of medicine?
It is precisely because a medical malpractice law
firm regularly works with medical experts in highly specialized
areas of medicine, that a medical malpractice law firm can
understand, organize and present complex medical facts to a judge
and jury. A medical malpractice law firm has many contacts with
expert witnesses, often in specialized areas of medicine, and is
able to bring vast resources together for the benefit of the
client.
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11. What should you bring to the
first meeting?
If your case is a medical malpractice case, you
should bring with you any and all medical records that you have as
well, as a list of all physicians and hospitals that you have
visited over the course of last ten years. You should also bring
any x-rays or other imaging films in your possession, as well as
any photographs that you may have which would be evidence of your
injuries. If your matter is an automobile negligence case, you
should also bring a copy of your automobile insurance policy and
declaration form. The declaration form is the page of your
automobile insurance policy that provides the limits of your
coverage. In addition, you should bring a copy of the police
report from your accident and any photographs of the vehicles
involved. If your case involves a product-related injury, please
bring all of your medical records, photographs related to your
injuries, any documents related to the investigation of your
injury and any available photographs of the product as well as any
product information you may have at your disposal.
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12. How does an attorney find experts
to help with your case?
The attorneys at Britcher, Leone & Roth
identify their experts through a number of different sources.
These experts include accomplished certified experts in medicine
and science that can address cases involving claims of medical
malpractice negligence and defective products. These sources are
somewhat privileged and therefore not listed on this website,
however, Britcher, Leone & Roth uses numerous and very
qualified experts to provide an unbiased review and analysis for a
variety of different claims.
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13. Where can you get information
about your doctor?
You can obtain information about your doctor from
the New Jersey Board of Medical Examiners or the licensing body of
your state. Other sources of information about your doctor may be
available on the Internet. You can also frequently obtain
information from the medical society of your state and the
hospital where your doctor practices.
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14. How can you find out if your
doctor has had any medical malpractice claims?
Unfortunately, unless your doctor has been the
subject of discipline by your state’s licensing board, it is
often not possible to determine the nature or the number of
medical malpractice claims he or she has had, except in the midst
of a lawsuit. Some states, such as Massachusetts, have created an
on-line database, accessible to the public, with medical
malpractice information. New Jersey has not done so yet.
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15. Will your time and effort spent
in pursuing a medical malpractice claim be worth it?
The attorneys at Britcher, Leone & Roth,
together with our in-house medical personnel and independent
medical reviewers, take great efforts to screen-out those cases
that are not likely to result in proofs of a departure from
standard medical practice. And, if the Firm is prepared to
undertake your representation, it is generally a case which we
believe would be worth your time and effort, since it is our
policy to limit our representation in medical malpractice cases,
to those with a likelihood of success and significant amount
financial recovery.
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16. Is there a limit on how much a
person can recover for a malpractice claim in New Jersey?
Thankfully, the State of New Jersey is not amongst
those states that has chosen to place any caps upon damages in
medical malpractice actions. To this end, the attorneys at
Britcher, Leone & Roth remain vigilant in protecting this
right against unwarranted limitations, their involvement in the
Association of Trial Lawyers of America and the Association of
Trial Lawyers of America – New Jersey Chapter. It has been shown
that only 1% of the cost of medical care would be saved through
the adoption of caps upon damages, while many other ownerous
limitations would be placed upon the rights of the injured.
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17. Will you be offered a
settlement?
While a number of the cases handled by Britcher,
Leone & Roth result in a settlement, medical malpractice
actions are much less frequently the subject of settlements than
other types of personal injury cases. Where more than 90% of all
negligence actions filed in the court systems in New Jersey result
in some settlement, medical negligence cases are settled slightly
less than 50% of the time. One of the main reasons for the lower
settlement rate for medical malpractice claims is that the
defendant-physician must agree and consent to any settlement.
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18. How are the attorney fees paid?
If the Firm of Britcher, Leone & Roth offers
to represent clients in personal injury matters, including medical
malpractice, the Firm is prepared to accept a fee on a contingency
fee basis. A contingency fee basis is one in which the attorney’s
fee in contingent upon a successful outcome, via jury verdict or
settlement. The Firm receives a percentage of our client’s
successful award as our only attorney’s fee. However, the
disbursements and/or funds needed to investigate and pursue these
cases are the obligation of the client. The Firm also provides
representation on a fee for service basis or hourly rate, in
certain matters.
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