FAQ - MEDICAL MALPRACTICE

1. 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.

2. 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 doctors whose treatment is being reviewed. The experts must determine that the doctors and other providers 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.

3. 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.

4. 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 and the special rules that apply vary from state to state and the type of defendant. Please contact Chain-Younger in order to determine the time limitation that applies to your claim.

5. 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. Patients 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.

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 not have consented to the treatment that was performed but would have chosen one of the alternatives. In most states, 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.

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.

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 medical expert witness' willingness to testify that the 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' willingness to testify that the medical negligence caused injury which otherwise would not have occurred, then the attorney knows that there is a viable medical malpractice claim.

9. Can Chain-Younger handle highly specialized areas of medicine?

It is precisely because Chain-Younger regularly works with medical experts in highly specialized areas of medicine, that Chain-Younger can understand, organize and present complex medical facts to a judge and jury. Chain-Younger 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.

10. What should you bring to the first meeting?

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.

11. How does an attorney find experts to help with your case?

Chain-Younger identifies 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. Chain-Younger knows numerous and very qualified experts who can provide an unbiased review and analysis for a variety of different claims.

12. Where can you get information about your doctor?

You can obtain information about your doctor from the State Board of Medical Examiners or your state's equivalent certifying agency. 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.

13. 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.

14. Is there a limit on how much a person can recover for a malpractice claim?

California has a cap on damages that a plaintiff can receive for pain and suffering of $250,000.00. However, there is no cap on economic damages.

15. Will you be offered a settlement?

While a number of the cases handled by Chain-Younger result in a settlement, medical malpractice actions are much less frequently the subject of settlements than other types of Medical Malpractice cases. 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.

16. How are the attorney fees paid?

Chain-Younger offers to represent clients in Medical Malpractice matters, including medical malpractice, on a contingency fee basis. A contingency fee basis is one in which the attorney's fee is contingent upon a successful outcome, via jury verdict or settlement. The attorney receives a percentage of our client's successful award as the attorney's fee.

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CHAIN, YOUNGER, COHN & STILES
1430 Truxtun Avenue
Bakersfield, CA 93301-5220
Tel: 661-323-4000