The failure of a medical professional to provide the appropriate care can have catastrophic results. This negligence can lead to serious and permanent injury, disability or death. At the office of Brad Bradshaw, M.D., J.D., L.C., it is our goal to determine what went wrong, hold the responsible parties accountable for their actions, and, to the extent possible, prevent similar injuries from happening to others.
Medical malpractice claims can involve a large deal of complexity. There are many factors involved in determining whether or not someone would be entitled to compensation and what, if any, that compensation should be. Medical providers and their insurance companies have a lot of resources on their side. We work hard to even the playing field and provide victims of malpractice with an understanding of the situation and their options.
Statute of Limitations & Time
There are strict time limits in which a claim for damages and personal injury can be brought against a negligent party. These time limits are often called "Statute of Limitations". This means that after the incident you only have a certain amount of time in which to file a lawsuit. After that time, your right to file a claim is waived. These statutes vary from state to state, and can vary depending on the circumstances of the claim. If you believe you may have a potential claim, you should seek the assistance of a qualified attorney as soon as possible.
Important Things You Should Know
Elements of a Medical Malpractice Case
In a medical malpractice claim it is important to know that you must prove several things, but two “elements” in particular, that there was:
1) “negligence” and that the negligence caused or contributed to cause the injury, 2) “causation”.
Negligence in medical malpractice is defined differently in different states, but the general concept is that the doctor behaved unreasonably. In some cases you can prove negligence, but not that it caused the injury. In others you can prove a bad outcome, but not that it was caused by negligence. The classic example is a patient presents to the Emergency Room after falling and hitting their head. The have altered consciousness and are discharged without an MRI or CT. The person dies in the parking lot from an internal undiagnosed brain bleed within 20 minutes of being seen by the doctor and sent home. Unfortunately, the hospital will accurately state that, even if we did something wrong, it did not cause the injury (or death in this case). This “example” case would likely be lost because, even if they admitted the patient and performed the MRI or CT, it would have taken 30 minutes or more, and then another 30 minutes or more to get to the operating room and perform the surgery, a total of at least one hour to obtain the necessary life saving treatment. The patient died in less than 20 minutes from being seen by the doctor and sent home. So remember, there must be a link between the medical malpractice and the injury. This necessary link is called “causation”.
Medical malpractice claims are some of the most difficult cases to litigate. The patient's medical records are the major evidence in the case. The doctor, hospital, or clinic has control of these records; and, although it is illegal to alter these records, there is often no way to know if they have been altered or not. Your medical records may not always reflect events the way you remember them. For this reason, it is very important for you to document as much as possible yourself. Be sure to keep notes, including names and dates, on conversations you have had with your medical providers. You should also document any expenses incurred and keep receipts for everything. In the event you decide to pursue a case, the more information you can provide your attorney, the better he or she will be able to represent you.
The key to success in any medical malpractice case is understanding what went wrong. This requires an understanding of the medical records and integrating these records into a cohesive picture. Brad Bradshaw, MD, JD, LC has the knowledge and skills necessary to bring that picture into focus. Dr. Bradshaw's medical training gives him a comprehensive understanding of the medical records required in these cases; and, our firms' trial experience gives us the advantage needed to successfully litigate such complex and difficult cases.
What to Do When You've Been Injured
Keep diaries of any admissions by the health care providers, including names and dates of individuals. Also, take photographs of the injuries, and keep copies of any medical records you receive. We have been involved in cases where the hospitals and health care providers have altered records, even proving it with hard evidence in one case. Also, it is common for health care providers to change their story or deny earlier comments once a lawsuit is filed. A journal entry contemporaneous with the admission by the hospital employee is consider evidence that the statement was in fact made as you claim.
Seek ongoing medical attention. Your health is more important than anything else. Further, in some instances it is not clear if the medical malpractice was the cause of the later diagnosed injury. Therefore, subsequent/later medical treatment is critical in linking the damages to the medical negligence.
Missouri’s Medical Malpractice “cap” follows the below Medical Malpractice Injury Classifications
This is set by Missouri Department of Insurance:
Temporary Injuries (1 – 4)
1. Emotional only - fright, no physical damage. Examples include breach of patient confidentiality, misdiagnosing a healthy patient with a condition, inappropriate legal or ethical behavior.
2. Insignificant – Lacerations, minor contusions, and rash. No delay in recovery.
3. Minor – Infections, missed fracture, and fall in hospital. Recovery is delayed.
4. Major –burns, surgical material retained, drug side-effect, and temporary brain damage. Recovery delayed.
Permanent Non-Fatal Injuries (5 – 8)
5. Minor – Loss of fingers, and damage to internal organs. Injuries are non-disabling.
6. Significant – Deafness, loss of limb, loss of eye, one kidney or lung.
7. Major – Paraplegia, blindness, loss of two limbs, and significant brain damage.
8. Grave – quadriplegia, severe brain damage, life-long care or fatal prognosis.
Limits to Compensation
The carelessness of a healthcare provider can result in a future of severe hardships. The loss of ability to enjoy life can be immeasurable. Unfortunately, many states have placed "caps", or limits, on the recovery for this loss. The political campaign to end "frivolous" lawsuits has actually limited the cases with the most merit. While some states have ruled these types of limits to be unconstitutional, there are currently about 35 states or more that impose some form of recovery cap.
Some states have caps on non-economic damages only, or those damages that can not be measured by a precise number; but, they do not limit the amount an individual can recover for economic damages (costs for medical and other necessary expenses). Some states have "total caps", or limits on the total amount of damages, both economic and non-economic, that an individual can recover in a medical malpractice claim. Others have limited the caps to punitive damages (damages awarded to punish the wrongdoer).
Some states have also placed caps on the amount of attorneys' fees that can be charged by attorneys who file medical malpractice claims. Most of these states, however, do not place a limit on the amount of fees healthcare providers, or their insurers, may pay for legal representation. Some states require all fees to be reviewed and approved by the court, for both parties.
Types of Compensation
There are six basic types of damages which you may potentially be able to receive compensation for in a medical malpractice case. They are defined below, and the first five are the definitions a jury would receive in trying to determine what to award in a medical malpractice case:
Past Economic Damages mean damages incurred in the past for financial harm such as medical expenses for necessary drugs, therapy, and for medical, surgical, nursing, X-ray, dental, custodial, and other health and rehabilitative services as well as past lost earnings, and past lost earnings capacity.
Past Non-Economic Damages mean those damages arising in the past from non-financial harm such as pain, mental anguish, inconvenience, physical impairment and disfigurement.
Future Economic Damages mean those damages arising in the future from financial harm such as medical expenses for necessary drugs, therapy, and for medical, surgical, nursing, X-ray, dental, custodial, and other health and rehabilitative services, as well as lost earnings and loss of future earning capacity.
Future Non-Economic Damages mean those damages arising in the future from non-financial harm such as pain, mental anguish, inconvenience, physical impairment, disfigurement and loss of capacity to enjoy life.
Punitive Damages are awarded as a way to punish the wrongdoer. Punitive damages are only awarded in rare cases when it can be shown that the wrongdoer had evil intent or, by his or her actions, showed a conscious disregard for the safety of others.