Medical Negligence Frequently Asked Questions


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Q. What can I do if I suspect medical negligence caused the death of a loved one?
A. There is always risk associated with nearly every medical treatment and procedure. Trained and licensed medical care providers must take appropriate action to minimize that risk by meeting the requirements of the applicable standard of care. When those standards are disregarded, it is the patient that needlessly suffers, often tragically. Many people benefit when contacting an experienced and well-qualified medical negligence attorney immediately.
Q. Do I need an attorney to pursue a medical negligence case for wrongful death; one of the medical people already told me that a mistake had been made.
A. Arkansas law grants surviving family members many tools to explore and evaluate whether medical negligence is the cause of serious injury or death. However, it is very difficult for most people to do this unless they come equipped with significant medical knowledge and significant legal experience. That is why it is critical to seek out legal counsel with significant experience in prosecuting and resolving such claims. As for the steps involved, they may be varied and complex, but there are several required in every case involving wrongful death. First, it is necessary to set up an estate on behalf of the deceased with an appropriate person to serve as the representative. The representative will need to obtain medical records, and obtain qualified legal counsel. These steps, along with many others, are necessary to establish the legal authority to investigate and prosecute the claim.
Q. What sort of things do medical negligence attorneys look for to determine whether there has been a breach of the standard of care?
A. Many medical care providers are trained and taught in a culture of silence when it comes to medical errors. Concerned patients and family members may not be given prompt and complete information about how the particular medical injury occurred. In medical negligence cases the very person that was negligent may in fact write the official record that documents the medical error and injury. Our firm is deeply familiar with reliable methods of gathering records, and obtaining independent expert review to shed light on a particular medical error and how it caused the poor outcome. Many victims of medical negligence are pleased to learn that the scrutiny and attention of the civil justice system improves medical care for other patients in the future.
Q. I signed a consent form, does this mean that I cannot bring a claim for medical negligence?
A. A very common question that we get is in reference to consent forms. It’s reasonable to think, immediately, that because you signed one that you don’t have a case. However, medical procedures require consent from the patient and the consent is to allowing the procedure to be performed; patients do not consent to medically negligent treatment. A review may be in order to determine whether the poor outcome results from professional negligence in contrast with those ordinary but unwelcome consequences that can occur even though everything was done right.
Q. Why should I pursue a legal claim when there is nothing that can be done to bring my loved one back?

A. This is very important question. The answer tends to be a highly personal choice. However, some common reasons may include the following:

  1. A belief that serious attention to this problem is required because the victim or surviving family member is truly concerned that someone else will be needlessly hurt if they sit back and fail to sound the alarm about a dangerous medical provider, procedure or process.
  2. Perhaps the deceased was the kind of person that would stand up and fight for what is right and the surviving family wants to honor her memory and make sure that every question about her death is given a complete medical and legal answer because that is what she would have done under the circumstances.
  3. Maybe the error was so egregious and beyond the pale that the victim or the surviving family members simply could not rest if something were not done to correct it.
  4. Sometimes people pursue such cases because of the perceived unfairness for someone to so carelessly cause so much harm without any accountability.
  5. Unfortunately, people suffering from medical negligence may be left completely in the dark because the negligent medical care provider will not be up front and communicate about the mistake. Perhaps a cover-up is suspected.
  6. Commonly, people pursue such claims because the death cut down a person in their prime earning years and their surviving family was relying on their income and support which is now lost forever due to a medical mistake.

Whatever the motivation, the law does provide accountability for patients needlessly harmed by medical care providers that failed to meet the standard of care required.

Q. Why should I pursue a legal claim when there is no medical basis to think that the physical injury or disfigurement can be corrected (i.e., missing limb, burns, scars, circumcision errors and the like)?

A. Skilled attorneys can work to place the consequences of the harm on those that caused it. When done correctly, this means that the person (or persons) that caused the harm will be bound to pay for the future medical care required, the loss of income and possibly the future psychological treatment as well as the time and expense of travel incurred to seek out remedial treatment. Absent a legal claim it is often the injured victim or their surviving family members alone that bear all of the consequences.

Q. How much time do I have to bring a medical malpractice claim.

A. The majority of medical negligence cases must be correctly filed within two years of the date of the medical negligence. Cases involving minors (those less than eighteen) or incapacitated persons may be extended under certain circumstances that are well known to attorneys experienced with such claims. Caution is in order when considering any delay in presenting a medical negligence claim because of the fact that even when pursued immediately some delay is built in. Before any viable case of medical negligence can be brought, we must acquire voluminous medical records, perhaps set up the appropriate estate representative, and seek expert medical review by one qualified to render an opinion addressing the standard of care, its breach, and the consequences. Many meritorious medical claims are lost through the failure to timely pursue them or bring them to the attention of a medical negligence attorney.

Q. What happens if I have a valid case of medical malpractice and fail to bring it within the required time period?

A. You will completely lose all opportunity to bring the claim. This is true no matter how clear-cut the medical negligence may be. Many times we are faced with prospective claims that have been left to linger too long to do anything and so the opportunity to bring a claim is lost forever.

Q. How soon should I call a qualified medical negligence attorney if I suspect medical negligence?

A. Immediately. Even with cases having merit, if you wait too long during the period you may face being denied qualified legal representation because of the lack of remaining time to accomplish those important tasks needed to evaluate the claim before suit can even be filed. Immediate action likewise proves invaluable in making certain that the appropriate witnesses and evidence are identified. Many people choosing to delay are disappointed to find that important witnesses are not fully identified within the medical record as they might have expected, or that by the time the case is being investigated the witnesses are no longer available (through death, moving out of state, etc.).

Q. Why should we have to file medical negligence claim at all, won’t the medical care provider’s insurance policy cover the loss?

A. Insurance policies are written and interpreted as contracts. Since those policies are often many pages and very detailed, there is no way to accurately predict the precise language that each might trigger coverage. Even so, almost every medical negligence policy will provide that it will only pay for losses caused by negligence that proximately caused the particular harm. Insurance companies are not ordinarily ready to concede either negligence or proximate causation without being thoroughly and completely convinced that both are clearly established. While this may be prudent in many circumstances, it is also true that insurance companies have monetary incentives to avoid paying claims as any money avoided adds to the bottom line of the insurance companies. Insurance adjusters and their attorneys have incentives to be overly skeptical of claims and will carefully evaluate not only whether negligence and causation are established, but also whether the individual claimant can persuasively prove it when it does occur. In our legal system, there are many barriers presented for even the most meritorious claim of medical negligence so that a fair number of meritorious claims are unsuccessful at overcoming these obstacles even under the best of circumstances. Finally, even when all sides and parties agree that a medical error has been made, extended litigation is often required to establish the proper value of the claim. All the while, the insurance company retains the claim funds and does not pay over any interest on this money when it finally pays the claim.

Whether a legitimate claim will be paid at all, and the amount of the claim actually paid, often depends on many factors well known to attorneys experienced in bringing such claims. Otherwise, those asserting valid claims of medical negligence may find themselves at the mercy of an insurance company that will likely avoid payment unless and until it is clearly established that it is absolutely required

Q. How is negligence determined in a medical negligence claim?

A. Even in the most seemingly clear cut cases an expert medical review is required to establish the appropriate standard of care and the medical consequences caused by the medical failures.

Q. Will an attorney take so much of the money that little is gained by the pursuit of the claim?
A. Medical negligence claims are among the most highly contested and commonly expensive claims that can be prosecuted. As a result, most qualified medical negligence attorneys will only perform this work if there is a reasonable expectation of success. And, since it usually requires the attorney to fund the case most qualified medical negligence attorneys require a significant percentage fitted to the work required and the substantial risk of loss.
Q. How does a qualified medical negligence attorney determine whether a viable medical negligence claim occurred?

A. Often people are quite sick or near death when seeking medical care. Sadly, even the best medical care may not demonstrably improve the odds of suffering a poor outcome. Attorneys handling medical malpractice claims must enlist the aid of qualified medical experts to evaluate the matter and independently determine whether the poor outcome resulted from medical error, or some other factor outside the control of modern medical science. When a case is evaluated by a qualified medical practitioner and determined not to show a violation of the standard of care, or a lack of appreciable change in the outcome as a result of what may indeed be a breach, then there can be no successful case pursued under the law. Additionally, there are cases where there is a demonstrable medical error that causes injury or damages that are outweighed by the likely costs of suit so that a wise and careful choice may be to avoid the suit altogether.

Q. If I learn that I would be well served to pursue a medical malpractice case what can I expect to occur?
A. You would be asked to enter an agreement with our firm to represent you. This would involve presenting viable medical support and almost certainly the filing of a lawsuit.
Q. Will I have to go to court if I choose to pursue a medical negligence claim?
A. Many cases resolve through settlement. Others require a trial. The insurance company will commonly seek consent of its insured (the medical doctor usually) to settle the case. There are times when a negligent physician will be confronting significant evidence of negligence but will not grant consent. In that case, trial is the only option.
Q. Does insurance cover the losses caused by medical negligence?
A. Every case we pursue involves an insured medical care provider.
Q. Do I have to prove that the medical care provider is “guilty of malpractice”?
A. No, a claim for medical negligence is a civil claim and ordinarily does not take any notice of whether a crime may or may not have been committed. Instead, the focus is to evaluate whether there is sufficient evidence and testimony to establish that negligence is by a “preponderance”, meaning more probable than not, usually through testimony from a well-qualified expert medical witness. Some final thoughts about medical negligence claims: A lawsuit and the chance to be restored to losses caused by medical negligence are not the only reasons why the legal system provides for accountability. According to a comprehensive study conducted and reported by John Hopkins University School of Medicine, Medical errors are “now the third leading cause of death.” This is “death from medical care itself.” Medical Error – the third leading cause of death in the US, BMJ 2016; 353;i2139.
Q. Are there risks that could’ve been minimized in my medical negligence case?
A. There is always risk associated with nearly every medical treatment and procedure. Trained and licensed medical care providers must take appropriate action to minimize that risk by meeting the requirements of the applicable standard of care. When those standards are disregarded, it is the patient that needlessly suffers, often tragically. Many people benefit when contacting an experienced and well-qualified medical negligence attorney immediately. Arkansas law gives surviving family members many tools to explore and evaluate whether medical negligence is the cause of serious injury or death. However, it is very difficult for most people to do this unless they come equipped with significant medical knowledge and significant legal experience. That is why it is critical to seek out legal counsel with significant experience in prosecuting and resolving such claims. As for the steps involved, they may be varied and complex, but there are few required in every case involving wrongful death. First, it is necessary to set up an estate on behalf of the deceased with an appropriate person to serve as the representative. The representative will need to obtain medical records, and obtain qualified legal counsel. These steps are necessary to establish the legal authority to investigate and prosecute the claim. Many medical care providers are trained and taught in a culture of silence when it comes to medical errors. Concerned patients and family members may not be given prompt and complete information about how the particular medical injury occurred. In medical negligence cases the person that was negligent may in fact write the record that documents the medical error and injury. Our firm is deeply familiar with reliable methods of gathering records, and obtaining independent expert review to shed light on a particular medical error and how it caused the poor outcome. Many victims of medical negligence are pleased to learn that the scrutiny and attention of the civil justice system improves medical care for other patients in the future.
Q. Why file for a negligence case?

A. We understand that losing a loved one is a difficult time in one’s life. Often times when our clients are experiencing this kind of grief it can be difficult to justify pursuing the case of medical negligence with the mindset that it will not bring your loved one(s) back. We understand that this decision is a highly personal choice. In an effort to provide some consolation, we have compiled a list of common reasons as to why people still pursue their medical negligence cases:

  • “I believe that serious attention to this problem is required because I am truly concerned that someone else will be needlessly hurt if we sit back and fail to sound the alarm about this dangerous medical provider, procedure or process.”
  • “My mom was the kind of person that would stand up and fight for what is right and I want to honor her memory and make sure that every question about her death is given a complete medical and legal answer because that is what she would have done for me under the circumstances.”
  • “This error was so egregious and beyond the pale that I simply could not rest if something were not done to correct it.”
  • “We think it is unfair for someone to so carelessly cause so much harm without any accountability.”
  • “We have tried and tried to get someone to talk to us about what happened and haven’t been able to get any information; we suspect a cover up”.
  • “The death cut down a man/woman in their prime and their family was relying on their income and support which is now lost forever.”

Whatever the motivation, the law does provide accountability for patients needlessly harmed by medical care providers that failed to meet the standard of care required.Another rebuttal may be, “Why should I pursue a legal claim when there is no medical basis to think that the physical injury or disfigurement can be corrected (i.e., missing limb, burns, scars, circumcision errors and the like)?”

Skilled attorneys can work to place the consequences of the harm on those that caused it. When done correctly, this means that the person (or persons) that caused the harm will be bound to pay for the future medical care required, the loss of income and possibly the future psychological treatment as well as the time and expense of travel incurred to seek out remedial treatment. Absent a legal claim, it is often the injured alone who bear all of the consequences.e future.

Q. How long do I have after the incidence of medical negligence to make a claim?

A. The majority of medical negligence cases must be correctly filed within two years of the date of the medical negligence. Cases involving minors (those less than 18 years of age) or incapacitated persons may be extended under certain circumstances that are well known to attorneys experienced with such claims. Caution is in order when considering any delay in presenting a medical negligence claim because of the fact that even when pursued immediately some delay is built in. Before any viable case of medical negligence can be brought, we must acquire voluminous medical records, set up the appropriate estate representative, and seek expert medical review by one qualified to render an opinion addressing the standard of care, its breach, and the medical/personal consequences. Many meritorious medical claims are lost through the failure to timely pursue them or bring them to the attention of a medical negligence attorney.
If you fail to bring in the case within the required time period, you will completely lose all opportunity to bring the claim. This is true no matter how clear-cut the medical negligence may be. Many times we are faced with prospective clients that are sad to learn that they waited too long to do anything and lost the opportunity to bring the claim.

Even with cases having merit, if you wait too long during the period you may face being denied qualified legal representation because of the lack of remaining time to accomplish those important tasks needed to evaluate the claim before suit can even be filed. Immediate action likewise proves invaluable in making certain that the appropriate witnesses and evidence are identified. Many people choosing to delay are disappointed to find that important witnesses are not fully identified within the medical record as they might have expected, or that by the time the case is being investigated the witnesses are no longer available (through death, moving out of state, etc.).

Q. What happens if I settled my claim and need more medical care?

A. We receive calls from people wondering about how to pay for necessary medical care and surgeries that were caused by an accident when the settlement was prematurely made and paid before all of the injuries came to light.

Our experiences teach that many people involved in an accident have injuries that are permanent and create many life-altering consequences that will not necessarily be paid without aggressive representation (latent shoulder and knee damage, for example). Unfortunately, many people are urged to settle their claims before the complete picture of the medical consequences is known.

When a claim is paid without consideration of permanent injuries and the need for future surgeries and medical care, the settlement amount paid is much less than it should have been (because it does not account for the money needed for those future surgeries, follow up physical therapy and the like). In those instances, the innocent accident victim may find that he or she requires expensive medical treatment that was caused by the accident, but there is no money to pay for it because the settlement was made too soon to include these damages.

In our experience, injured accident victims are well served to fully complete all of their medical care and treatment before approving a settlement (being mindful of the statute of limitations). Experience teaches the value of following through will all recommended follow up treatment to be certain there are funds to cover lingering medical problems and future surgeries.


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