Medical malpractice is the negligence of a doctor or other healthcare professional that causes injury or death.
The plaintiff in a medical malpractice case bears the burden of proving that the care rendered by a doctor or other health care professional failed to meet the applicable "standard of care". The "standard of care" represents the knowledge, skill and ability that an ordinarily careful professional would exercise under the circumstances. The plaintiff must also demonstrate that the failure of the health care professional was a cause of the damage suffered.
Any action for personal injury or death against a physician or hospital must be filed within two years from the date the claimant knew or reasonably should have known of the injury. In no instance may a claimant bring an action more than four years after the date on which the alleged act or omission occurred.
If the claimant was under the age of 18 at the time of the alleged negligence, the statute of limitations is tolled. A claim may be brought for injuries suffered by a minor within two years of his or her 18th birthday or within two years of the date on which the claimant knew or should have known of the alleged negligent act. In no event may such an action be filed after the minor claimant's 22nd birthday. If the claimant is mentally incompetent, the period of limitations does not begin to run until the disability is removed.
Wrongful death actions are governed by a two-year statute of limitations that begins to run on the date of death. Wrongful death actions may be maintained only if, on the date of death, the decedent could still have commenced a malpractice action for the injury that caused the death.
In any medical malpractice case, the plaintiff's attorney must attach to the complaint an affidavit stating that (a) he has consulted with an expert who has practiced or taught in the same area of medicine that is at issue; (b) the expert is qualified by experience or demonstrated competence in the subject of the case; and (c) the expert has determined in a sworn affidavit, after review of the medical record and other relevant material, that there is a reasonable and meritorious cause for the filing of such action.
The cost of litigation in addition to the contingent attorney fee must be considered when evaluating a medical negligence claim. Significant litigation costs are typically involved in the prosecution of a medical malpractice case. Such costs include the charge for filing a lawsuit, serving the defendants with a copy of the lawsuit and summons, deposition transcripts, involvement of medical experts and travel for discovery purposes. It is not unusual for the costs advanced in a straightforward medical malpractice case against one physician to exceed $50,000 to $100,000.
Many of the same elements of damage that apply in other negligence cases apply in a medical malpractice case. In the case of someone's death, the next of kin can recover for the money, goods, services, love, comfort and companionship the decedent provided. Damages for pain and suffering, disability, loss of wages and the cost of additional medical care required are recoverable for injuries suffered. Whether such elements of damage apply in a specific medical malpractice case depends upon an assessment of the particular circumstances at issue.
Under certain circumstances, a hospital may be liable for the conduct of doctors, nurses or other health care professionals who staff the hospital. If the hospital employs the physician, nurse or other health care provider, the hospital may be liable for their conduct. Whether the hospital is liable depends upon a careful review of the circumstances surrounding the employment status of the physician. Additional factors, including method of payment, facilities provided, perception of the public and nature of the medical care rendered, must also be assessed.