Medical Malpractice Law


High Stakes Set High Standards to Prove Malpractice

It is essential to consult an attorney as soon as possible if you think you may have a malpractice case to pursue. However, you should know that Medical Malpractice cases are particularly difficult, and you should understand as well why your real injury may not meet the standards for suing someone.

In general, the injured party must be able to prove:

  • That care did not meet the regular professional standards
  • That an injury was sustained, with significant/persistent consequences; and
  • That the injury was a direct result of caregiver error or negligence.

Instructions given to a jury as they are asked to decide upon a verdict in a medical malpractice case typically include reminders that competent professionals may legitimately have different opinions and favor different treatments, so the fact that some may have done something different in the case at issue is not by itself a winning argument that the professional being sued did wrong. Neither is dissatisfaction with the results of treatment. To win a medical malpractice case, the jury must be convinced by the evidence that what the professional did was clearly different from what the majority of similar ordinarily competent professionals would have done under the same circumstances; and that the patient suffered serious, significant, life-altering damage as a result.

Why Are These Cases Difficult for Patients to Win?

First, studies have shown repeatedly that jury verdicts favor doctors. In real life, jurors consistently sympathize more with doctors who have been sued than with the patients who sue them.

Second, The Health Security Act requires that medical malpractice cases go through a lengthy number of hurdles before they even reach a jury. While something like a car accident case will usually go to trial in a year, it takes a minimum of two years, and more often three, to get to trial with Med Mal cases. One reason is that, about a year into filing the suit, the case must go through a “pre-litigation screening panel.” A client cannot automatically seek a jury trial without going through this screening process.

Third, the attorneys who defend medical practitioners are among the best lawyers in the state, and the process is extremely complicated. Even when they have a good chance of losing against a strong claim, practitioners and their lawyers will often fight it out and resist settling the case for reasons including defending their professional reputations and avoiding hikes in their medical malpractice insurance rates.

Fourth, it is extremely expensive. Costs can range from $10,000 to $200,000. Because most clients can’t afford to pay that kind of money up front, lawyers have to be willing to pay it out themselves. It makes sense, then, that the lawyers will want to be convinced that they can win, and that they can win enough money to cover these upfront costs plus pay for all of the lawyer’s time, with enough left over to satisfy their clients. That’s a lot of money. That’s why, when someone says “I don’t care about the money, I just don’t want them to get away with it,” unless the client is ready to spend a fortune to make a point, they are almost certainly not going to be able to convince an attorney to take the case.

Finally, the law recognizes that medical care providers make mistakes just like everyone else, and not every mistake is medical negligence or malpractice. Not all mistakes rise to the level of a violation of medical standards of care, and not all violations of these standards cause real harm to the patient.

Still, if you think you may have a case, consult a lawyer quickly!

If you feel you have a medical malpractice case, it is important to speak to an attorney as soon as possible. There are statutes of limitations that apply, and if you wait too long, you may be unable to sue no matter how strong your case may be.

You can save yourself time and expense by gathering the essential information before you even speak with an attorney. An attorney will need to know the names of all the parties involved, the dates of all events, and will want to see documentation of your injuries and communications with the professionals involved.

Related Legal Terms

Contingent Fee Agreement – the arrangement most people think of when they think of personal injury cases, as advertised with slogans such as “we don’t collect unless you win.” These fees are negotiable, but are commonly one third to 40% of the money won. Understandably, attorneys are unlikely to take a case on contingency unless they believe that there is an extremely good chance that they can win, and that the damages awarded will be enough to make it worth while for both the attorney and the client. Even under contingency agreements, a client may be required to invest money to conduct the case. These expenses are separate from the attorneys’ fees, and may include research, payment for expert witnesses, filing fees, travel, material preparation and other costs.

Negligence – medical care that does not meet standards generally recognized by similar professionals

Vicarious Liability – legal liability of an entity, such as a hospital or clinic, for the actions or omissions of its employees while undertaking their professional duties

Statute of Limitations (SOL) – the legal window of opportunity during which a suit can be pursued. In Maine, the statute of limitations for suing someone for medical malpractice is three years from the date the action or omission took place. Sometimes that is very difficult to determine, so you should talk to an attorney immediately.

Special Damages – the amount of money a person may be awarded for expenses directly caused by the injury, including hospital and ambulance bills. This is a specific amount tallied from actual bills, expenses and lost income.

General Damages – the amount of money a person may be awarded for current and future effects of an injury, which can range from shortened life-span and inability to perform certain acts, to pain, suffering, humiliation, and mental anguish.

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This is for general information only. It is not intended as legal advice.