Medical errors kill over a quarter of a million people in the United States every year, a number that is considerably greater than the combined populations of Clarksville and Springfield, Tennessee. Although not all medical errors rise to the level of medical malpractice, many of them do. And when they do, victims often suffer physically, emotionally, and financially. Filing a medical malpractice claim can help you get the money you need to pay for your losses.
When Does a Medical Error Become Medical Malpractice?
Doctors are human, and the law does not demand perfection from them. Likewise, not every bad medical outcome is the result of medical malpractice. Nevertheless, doctors are expected to meet a very high professional standard of care, depending on their specialty and level of expertise. A doctor’s peers determine this standard.
To win a medical malpractice case, you must prove the following elements by a “preponderance of the evidence” (more likely than not) basis.
- A doctor/patient relationship existed. This relationship generates a professional standard of care that the doctor must meet.
- The doctor’s treatment fell below the accepted standard of care under the circumstances. Normally, an expert witness is used to establish this element.
- The patient suffered tangible harm.
- The patient’s harm was a consequence of the doctor’s failure to meet the applicable standard of care.
The foregoing elements apply to doctors and most other healthcare professionals such as physician’s assistants, nurses, physical therapists, and even hospitals.
Types of Medical Errors
Many types of medical errors can generate a medical malpractice lawsuit, including:
- Failure to take an appropriate medical history;
- Ignoring known symptoms;
- Surgical errors;
- Failure to diagnose;
- Delayed diagnosis;
- Prescribing the wrong medication or the wrong dosage;
- Failure to order lab testing;
- Misinterpreting lab results;
- Failure to refer you to a specialist; and
- Operating on the wrong body part.
Many more types of medical errors also happen; this is just a partial list.
Procedures for Medical Malpractice Claims
Seeking compensation for medical errors that constitute malpractice can be a complex process for a few different reasons. But the biggest reason is that they tend to be scientifically and legally complex. Here is a general step-by-step guideline for the process of pursuing a claim.
- Investigate your claim to determine whether it is viable. A Tennessee medical negligence attorney is nearly a necessity if you want to be sure your investigation is thorough.
- Determine the identity of the defendant. This is normally a straightforward process; however, more than one defendant can be involved.
- Gather evidence. This includes procuring qualified expert witnesses willing to testify on your behalf and at least one expert witness willing to sign a “certificate of good faith,” as discussed below.
- Develop arguments for your claim and determine its value.
- Send a settlement demand to the defendant. This document needs to be precisely worded.
- Begin negotiating a settlement.
- File a medical malpractice lawsuit if the defendant refuses to make a fair settlement offer. You can still settle before trial, but this step is necessary to move the case forward if the defendant refuses to offer an appropriate settlement amount.
- Submit a certificate of good faith to the court within 90 days of filing the lawsuit, as discussed below.
- Now that you’ve filed a lawsuit, you must gather more evidence by interviewing witnesses—including the defendant if they are an individual—and demanding documents in the defendant’s possession. The court will supervise this discovery process.
- Draft and sign a settlement agreement if the defendant makes a fair settlement offer.
- Proceed to trial if the defendant refuses to settle on reasonable terms.
Never forget that there is a statute of limitations deadline for filing a lawsuit, and as you can see, all of the above steps take time. So don’t wait before contacting an attorney to get the ball rolling.
Components of Medical Malpractice Damages
Tennessee awards three types of damages in medical malpractice cases: economic damages, non-economic damages, and punitive damages.
- Economic damages are easily countable losses such as medical expenses, lost earnings, and out-of-pocket expenses.
- Non-economic damages are intangible losses such as pain and suffering and loss of enjoyment of life.
- Punitive damages, which are rarely awarded, are meant to punish a grossly negligent or reckless defendant.
If the claimant is expected to suffer long-term or permanent disability, the compensation claim can include estimated future damages as well.
Statutory damages limitations
Non-economic damages are typically limited to $750,000 per case, although damages of up to $1,000,000 are permissible in cases of catastrophic injury. Even these caps do not apply when the health care provider commits certain kinds of misconduct, such as falsifying records to conceal malpractice.
Before You Go to Court: The Certificate of Good Faith
Tennessee requires a claimant to submit a “certificate of good faith” to the court within 90 days after filing a medical malpractice lawsuit. The claimant must file this document, which certifies under oath that they consulted a medical expert and that the expert provided a written statement including the elements specified below.
The written statement must certify that either:
- A good faith basis for the claim exists, or
- The expert cannot determine whether a good faith basis exists based on available evidence.
If the claimant or their lawyer does not file a certificate of good faith within 90 days, the court can permanently dismiss the lawsuit.
The Statute of Limitations Deadline
The statute of limitations sets the deadline for filing a medical malpractice lawsuit. If you miss the deadline, your case is essentially over. You won’t even be able to settle your claim out of court. In Tennessee, the general statute of limitations deadline is one year after you discover or should have discovered your injury—with an absolute deadline of three years after the injury occurs.
More lenient deadlines apply if a foreign object (such as a scalpel) is left inside the patient’s body or if the defendant deliberately conceals evidence of medical malpractice.
A Wrongful Death Lawsuit Is a Different Claim
A patient who dies as a result of medical malpractice cannot file a medical malpractice lawsuit. Nevertheless, Tennessee’s wrongful death statute allows certain surviving relatives to file a wrongful death lawsuit. The rules are somewhat different, but compensation can be substantial.
It’s Up to You to Demand Full Compensation For Medical Errors
There is a reason that Batson Nolan PLC has been around for over 160 years. It’s because we win both at trial and the settlement table. Our medical negligence lawyers have accumulated hundreds of years of combined experience holding the medical establishment responsible for negligence. If you believe you might have a medical malpractice claim, call us or contact us online.