Protecting Your Rights as a Victim of Medical Malpractice

October 6, 2021 Insights

Medical malpractice can be physically, emotionally and financially devastating, and building a case is generally a difficult and complicated process. But as a victim, you have certain rights at each end of the process. While it’s easy for these rights to be taken advantage of, there are steps that can be taken to protect them.

Ensuring you are heard and respected means having plenty of evidence of the malpractice event or condition at your disposal, receiving a second medical opinion, understanding the rules of a malpractice case, and of course, seeking out the advice of a skilled, experienced attorney.

Step 1: Gathering Evidence

To begin, you will need evidence of the basic facts of the case. Be sure that you have any and all relevant medical records, certainly those surrounding the incident in question, but also records from the past that could be clinically relevant. For instance, if a doctor performed a treatment or prescribed a medication that dangerously worsened a condition, evidence of an initial diagnosis and treatment plan will be essential.

You may also want to consider compiling photo evidence of your condition in some cases, or seeking out non-expert witness testimony. These items are supplemental, however, and should not replace an expert medical opinion.

Step 2: Getting a Second Opinion

To succeed in a malpractice case, plaintiffs need to prove that the care provided to them fell below established standards, and/or directly led to an injury or adverse outcome. Even in jurisdictions where a second medical opinion isn’t required, it’s always advisable to get one. And in diagnoses or conditions involving lab work, it’s helpful to get a second opinion from a new laboratory as well.

As further evidence of their value, one Mayo Clinic study showed that only 12% of diagnoses remained exactly the same after a second opinion. The rest changed in some way – more than 20% significantly so – resulting in a new care plan for the patient.  

The facts of a malpractice suit are usually too complicated for jurors to understand on their own, with the court unlikely to understand your medical condition or make sense of evidence without an expert’s help.

Step 3: Knowing the Ins and Outs of a Malpractice Claim

The dynamics of a malpractice claim will vary somewhat between jurisdictions. In most cases, you will need to prepare pre-suit letters notifying each provider you intend to sue. For example, if a suit will involve one or more doctors, plus more than one hospital or clinic, each will need to receive a claim letter. During this process, you will also need to give a release of your HIPAA information so that medical records related to your claim can be accessed.

Some states will require the medical opinion of a qualified doctor to determine the likelihood of the lawsuit to succeed. This requirement doesn’t exist in Kentucky – but as explained above, not having a second opinion makes your case that much more of an uphill battle.

You will also need to determine the statute of limitations in your state. In Kentucky, this is up to one year following the discovery of malpractice evidence: a changed condition, an injury or an implement left in the body, to name three of several examples.

It is equally important to understand other rules and conditions that will apply to your suit. Kentucky, for example, is a comparative negligence jurisdiction – meaning that if a jury finds that the plaintiff is partly responsible for the injuries incurred, they would be liable for whatever percentage of the damage claim is determined to have been of their own fault.

Similarly, if there is more than one respondent to a malpractice suit, they are only liable for the percentage of the negligence determined to be their own individual fault. Consider the example of several doctors sued for missing a cancer diagnosis. Jurors may decide the radiologist’s responsibility and that of their clinic is less than that of the primary care physician or oncologist, and as such, they would owe less.

Step 4: Deciding on an Attorney

You should approach an attorney as early on as you can, as having a legal team will be indispensable for success in these other steps. Consider the following:

  • Have they dealt with your type of malpractice case before?
  • How much of a priority will your case be, and how much access will you have to the attorney (versus a paralegal or other team members)?
  • What is the fee structure? Will you owe anything up front for the attorney taking on your case, and what will you owe the attorney if you win?

Lastly, in the aftermath of medical malpractice, the team at Circeo Law Firm are a free consultation away if you want to explore your options.