Medical malpractice is said to occur when a healthcare professional or institution causes injury to a patient through acts of omission or negligence. It is estimated that medical errors account for an average of 251,000 deaths every year, making it the third leading cause of death in the United States. Victims of these medical errors are legally allowed to seek compensation if it is determined that the error was a violation of medical standards of care, that any injury caused was due to negligence, and that this injury resulted in significant damages. This is where medical malpractice attorneys come in. Medical malpractice attorneys are attorneys that specialize in holding medical professionals accountable for the damages and losses that occur as a result of deviating from the required standard of care within the medical profession. In addition to helping you determine whether you are eligible to file a medical malpractice claim, medical malpractice attorneys near you also carry out the following tasks:
- Gather and examine medical records
- Work with medical professionals to formulate expert reports, case theories, and testimony to support the plaintiff's case
- Conduct medical research on the plaintiff's condition
- Take depositions of medical personnel, medical experts, and other third parties
- Work with medical consultants to analyze the merits of the case, decipher doctor's notes, and review medical records
- Arrange for independent medical examinations to obtain an objective evaluation of the plaintiff's condition
Because medical malpractice lawsuits require legal expertise as well as some degree of medical knowledge, it is important to make sure that your medical practice attorney possesses the skills and qualifications necessary to handle your case and get you adequate compensation for the damages that you have suffered. As such, before hiring a ‘medical malpractice attorney near me’, you should ask the following questions:
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Where Are You Licensed to Practice Medical Malpractice in the State You Are?
Although medical malpractice cases are mostly tried in state courts, federal courts have jurisdiction over some of these matters. This usually happens when the claim involves a federal government employee or establishment. As such, it is important to make sure that your medical malpractice attorney has been licensed to practice law in your state of residence or a federal court if necessary. This is important because the rules and procedures of federal courts are different from those of state trial courts.
To ascertain the licensing status of any medical malpractice attorney near you, you can visit the American Bar Association’s lawyer licensing webpage. You can also find out if your attorney is licensed to practice in the federal court where your medical malpractice claim is filed by contacting the court.
For medical malpractice attorneys to become licensed to practice in a state, these attorneys must have attended an American Bar Association-accredited law school after passing the Law School Admission Test administered by the Law School Admission Council. After graduating from law school, they must pass the state's bar examination after which the aspiring attorneys must be sworn in by that state's bar association before they can legally practice law within the state. However, state licensing does not automatically qualify them to practice law in federal courts. To appear before a federal court, attorneys must be sworn into the bar of that particular federal court despite being licensed by the state’s bar association.
Note that the requirements to practice in federal court vary according to the court. Some federal courts, like the United States District Court for the District of Utah, require attorneys to be licensed to practice law by that particular state’s bar association. Other federal courts such as the Southern District of Texas Federal Court accept attorneys licensed to practice law by any state bar association in the country.
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What Kind of Medical Malpractice Work Do You Handle?
Medical malpractice encompasses various kinds of medical errors and injuries. Before hiring a medical malpractice attorney near you, you should always ensure that the attorney can handle the exact type of medical malpractice claim that you are involved in. Some common situations that can result in filing a medical malpractice claim include:
- Misdiagnosis or Failure to Diagnose - A misdiagnosis or a failure to diagnose may prevent a patient from receiving the necessary treatment for their disease, particularly at the early stages when the disease is most responsive to treatment. By the time the patient obtains the correct diagnosis, the disease may have advanced to a point where medical treatment can no longer deter serious harm or death. Failure to order an essential diagnostic test, ignoring a patient's complaints, and misinterpreting lab results are all costly mistakes that can be especially devastating in cases of rapidly progressive diseases.
- Childbirth Injuries - Physician negligence during childbirth can lead to injuries to both mother and infant. Failing to respond to indications of fetal distress, failing to anticipate complications, failing to diagnose an underlying maternal health complication that could adversely affect the unborn child, and failing to anticipate the need for a cesarean section are examples of negligent acts that can result in medical malpractice claims. While some birth injuries may be resolved through corrective treatments, others like cerebral palsy can be quite severe and can result in a permanent disability to the infant.
- Medication Errors - Medication errors occur in a variety of different ways ranging from incorrect prescriptions and incorrect dosage administration to malfunctions in the automated equipment designed for administering medication. They can also occur as a result of disregarding a patient's age, allergies, or medical history when prescribing medication.
- Anesthesia Errors - These include administering medication to which a patient is allergic, intubating a patient incorrectly, and failure to monitor a patient’s vital signs adequately.
- Surgical Errors - Organ puncture, wrong-site surgery, and use of unsanitary surgical tools are common types of surgical errors. Surgical errors also occur when a doctor fails to review medical instructions, misreads a medical chart, or improperly clears a patient for surgery.
Many experienced medical malpractice attorneys nearby are skilled at tackling medical malpractice claims that arise from all the aforementioned situations, but it is always a good idea to get confirmation on this.
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How Long Have You Been in Practice?
Medical malpractice cases are complex and difficult to prove. Additionally, defendants try to avoid liability or pay as little compensation as they can. This is why the experience of the medical malpractice attorney you are hiring matters. Your lawyer needs to be highly experienced in not just negotiations and settlements, but also in medical malpractice litigation with a record of taking medical malpractice matters to trial. This is important because when out-of-court negotiations fail, the next legal action is usually a court trial. If this happens, your chances of succeeding are greater if your lawyer is experienced in medical malpractice litigation.
Many law firms usually have the number of years of their combined legal experience, or personal injury experience clearly stated on their websites. To find out how much experience your attorney has in the area of medical malpractice you are involved in, you may also request a breakdown of the kinds of cases your attorney’s firm handles. If this breakdown includes several medical malpractice cases, particularly in the area you are involved in, then it is very likely that your attorney is duly experienced in that area. Note that in most cases, the more experienced an attorney is, the higher the legal fees.
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Do You Charge Fixed or Hourly Fees?
Medical malpractice lawyers near you would rarely charge fixed fees. Instead, most medical malpractice attorneys operate on a contingency fee basis. This means that you do not pay them any fee unless they obtain some sort of compensation for your medical malpractice claim. There are two basic types of contingency fee billing utilized by medical practice attorneys, and these are:
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Fixed contingency fees - Under a fixed contingency fee arrangement, your attorney receives a fixed percentage of your total compensation. This compensation can either be an out-of-court settlement or a court-awarded settlement fee after a trial. However, if you do not receive any compensation, you do not pay your attorney any fees. Many medical malpractice attorneys charge an average of 30% - 33% of whatever monetary compensation you recover. The exact percentage of this fee is typically subject to several variables such as the experience and skill of the attorney, and the details of the case. Some states like Delaware, California, and Illinois limit the maximum amount of contingency fees that an attorney may recover in medical malpractice claims, while others like Nebraska do not place a limit on these fees. In states like Iowa, courts may step in to determine the reasonableness of the fee arrangements between medical malpractice plaintiffs and their counsel.
Note that medical malpractice claims can be expensive to pursue and tend to incur various costs like fees for expert witnesses, deposition transcripts costs, and fees for medical records requests. To take care of these expenses, attorneys have different arrangements with their clients. This may involve you paying a cost retainer from which they can withdraw funds when needed, paying the costs of these activities out of pocket as they come up, or agreeing to an advance on these fees and deducting them from any award or settlement that you may receive. As such, it is important to ask your medical malpractice attorney what the arrangement is to pay for those expenses.
- Sliding-scale contingency fees - Under this kind of billing arrangement, your attorney receives a lower percentage in fees if your medical malpractice claim is settled before any court appearance. However, this percentage increases if the case progresses towards trial and requires additional work by the attorney.
In a few cases, medical malpractice attorneys near you may charge an hourly fee for their services. Hourly fees charged by a medical malpractice attorney typically cost an average of $200 to $600 per hour. With this fee structure, your attorney may request an up-front retainer and subsequently subtracts fees for any time spent on your case from this retainer while also providing you with an account of any balances left.
Always find out the billing method that your medical malpractice attorney will use for your case and get an agreement in writing. After agreeing on the payment system and fees, it is also important to find out your attorney's preferred method of payment. Some medical practice attorneys may prefer traditional modes of payment such as cash and checks, while others accept digital modes of payment like credit and debit cards.
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Do You Charge for an Initial Consultation?
When scheduling your first consultation with a medical malpractice attorney near you, always find out if you will be charged for this meeting. This initial consultation is usually crucial to determining whether or not you and the attorney can work together on your case. Many medical malpractice attorneys offer free initial consultations. However, some medical malpractice attorneys may charge an initial consultation fee to weed out individuals that use these consultations to obtain free legal counsel. When this happens, this fee is usually a fraction of the attorney's usual rates.
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How Do You Keep Clients Informed about Their Case?
Per the American Bar Association’s rules of professional conduct, every attorney must keep their clients reasonably informed of the status of their ongoing cases at all times. Attorneys also have to respond promptly to any reasonable requests for information from their clients. Based on this, it is important to set up a communications plan with your medical malpractice attorney. Discuss issues like when you should receive regular updates about your medical malpractice case and how your attorney should communicate this information to you. These updates can be daily, weekly, or even monthly, depending on the circumstances of your case.
You and your attorney should also agree on whether your communications would be through audio-video conference calls or in person. However, it is important to remember that scheduled updates should not stop your lawyer from notifying you if an emergency arises relating to your case. Therefore, you and this ‘medical malpractice attorney near me’ should both have a clear understanding of what circumstances constitute an emergency and how either of you can be reached when such situations arise.
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Who Will Actually Do the Work?
Many medical malpractice attorneys do not handle every single aspect of a client's case and instead employ legal assistants or paralegals to assist them with different tasks. The duties of these legal assistants and paralegals vary depending on the law firm. However, they typically include conducting the research needed for the case, taking statements from witnesses, gathering medical records, and taking depositions of medical experts. Note, these legal assistants and paralegals are not licensed attorneys and cannot accept or reject cases, give legal advice, or litigate matters in court. All their activities must be supervised by a licensed attorney in the firm.
Similarly, if you hire a senior attorney near you, they may have a junior associate do most of the legal work, while they handle the more complicated legal concerns and oversee the junior associate’s progress. Your medical malpractice attorney may also require the services of legal nurse consultants and other medical experts to analyze complex medical information, provide informed opinions, and testify during the trial if necessary. Conducting an independent medical examination may also be necessary for the case. It is therefore advisable to find out from your attorney how the costs of paying the medical professionals, paralegals, and legal assistants would be handled.
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Can You Provide References from Former Clients?
Your medical malpractice attorney should be able to provide you with a list of references of clients that they have helped with cases similar to yours. These references assure you of the attorney’s reputation and trustworthiness to successfully represent you. Make sure to contact these references and get their opinion on your medical malpractice attorney. Before contacting them, it is advisable to have a list of questions and concerns to make sure all your concerns are addressed. Some medical malpractice attorneys have web pages that allow prospective clients to view past clients’ reviews and testimonials on their law firm's websites. You can also search for unbiased reviews of clients near you on your attorney on websites such as Google Review and Better Business Bureau. Finally, you can contact your state’s bar association to find out if there have been any complaints or disciplinary actions filed against the attorney you intend to hire.
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What Is Your Success Rate?
Success in a medical malpractice case typically means that the claimant received adequate compensation for the damages suffered, and so it is a good idea to find out how often this happens with your medical malpractice attorney. One way you can verify your attorney's claims is by contacting your attorney’s past clients to find out what percentage of their claims the attorney was able to obtain on their behalf. Another option is to access court records of the cases your attorney has previously handled. These records can give you an idea of the outcomes that your medical malpractice attorney achieves in similar cases, and whether they align with what your attorney has told you so far. Note that even though court records are typically public records, the requirements and procedure for accessing these records vary by courthouse.
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When Should I Hire a Medical Malpractice Attorney?
Hiring an attorney near you when filing a medical malpractice claim is not a mandatory requirement. However, considering the complexity of medical malpractice lawsuits, your best chances of success are with hiring one. Medical malpractice attorneys have the required legal and medical knowledge to determine whether the circumstances surrounding your matter are enough to file a medical malpractice claim and also build a strong case for you. If you find yourself in any of the following situations, you should seriously consider hiring a medical malpractice attorney:
- You were given an incorrect prescription
- Your illness was not diagnosed
- You were wrongly diagnosed
- You were prescribed an incorrect dosage
- You were not properly informed of the possible consequences or risks of a procedure.
- There were surgical errors during your procedure
- You suffered severe injuries during childbirth
- Your anesthesia was incorrectly applied
- You received poor and inadequate aftercare and follow-up
Note that most states require that the victims of medical malpractice file their claims between six months and two years of the incident. Therefore, if you or a loved one find yourselves in any of the aforementioned it is always in your best interest to hire a medical malpractice attorney as soon as possible.
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What are the Typical Qualifications Held by a Medical Malpractice Attorney?
Medical malpractice attorneys are mandatorily required to complete seven years of post-high school education. The first four years are spent obtaining a bachelor’s degree which can be in any subject. After obtaining a bachelor’s degree, the next step is getting a law degree from an American Bar Association-accredited law school. In law school, aspiring medical malpractice attorneys usually specialize in civil litigation as well as trial alternatives. After completing law school, prospective attorneys must take the bar exam in any state where they intend to practice. To stand out, medical malpractice attorneys may also obtain board certification from a certifying organization like the American Board of Professional Liability Attorneys (ABPLA). Board-certified medical malpractice attorneys generally exhibit competence, professionalism, and experience in areas such as ethics and professional liability law.