Medical Malpractice

– What is Medical Malpractice?

Generally speaking, medical malpractice occurs when a health care provider makes a mistake that causes harm in their treatment of a patient. The patient, called a plaintiff in the legal system, must prove that the health care provider (usually a doctor) involved in treating the patient made a mistake that caused the harm that the patient suffered. A mistake is made when a health care provider (usually a doctor) failed to give care to the patient that other health care providers of the same training and skill would have given in the same situation. This failure to act is called a deviation from the acceptable standard of care for that specialty in medicine. In other words, no other health care provider in the same specialty would have given treatment in the same manner as the treating health care provider who made a medical mistake that caused harm to the patient.

An error in judgment is not necessarily malpractice. The plaintiff (patient) has the burden of proof to show by a preponderance of the evidence that the health care provider failed to meet the acceptable standard of care and as a result, it caused the patient damage. Damages must be sufficient to warrant the substantial costs and effort of pursuing a claim.

At Dykema Law Offices, we are willing to talk to potential medical malpractice clients, (in the hospital, home, nursing home, or our office) to determine whether a potential claim is worth pursuing. The consultation is free.

Does a bad outcome mean that medical malpractice occurred?

No. Just because the patient suffered a bad outcome does not automatically mean that malpractice occurred. Frequently, a bad outcome is caused by a known complication. Complications are not generally considered to be malpractice. In fact, most complications are contained on the consent form that patients are asked to sign. Some common complications are infection and bleeding. At other times, a bad outcome is a result of a disease process that the patient has that complicated recovery. Many potential medical malpractice clients are disappointed to learn they have no legal remedy for a bad outcome.

Do I have a medical malpractice case?

Thinking that you were the victim of medical malpractice and proving it are two very separate things. It does not matter how passionate a patient feels about the medical errors committed upon them if it cannot be proven in a court of law.

Proving a medical malpractice case in a court of law can be a very challenging and complex task. First, it requires the experience and help of a highly qualified medical malpractice attorney. Next, it requires documentation of the events surrounding the malpractice as they occurred. Third, it requires a complete and accurate medical record which specifically demonstrates the malpractice. Fourth, it requires that the claim is not beyond the statute of limitations. Finally, it requires the retention of top consulting and testifying medical expert witnesses.

The rules of evidence require that proof of a medical malpractice claim must be offered in a certain form. Generally, hearsay and other forms of unreliable proof are not allowed. For instance, prior lawsuits against a physician are generally not admissible evidence unless the prior acts are virtually the same as the act complained of in the instant case.

Moreover, the admissible evidence must be compelling. When a fact is disputed between the patient and the physician, each party will swear to their version of the fact. The physicians usually win this “swearing contest” because jurors give doctors the benefit of the doubt. Thus, a case involving a swearing match is not a good case because the evidence is not compelling.

Jurors need to see irrefutable written evidence in the medical chart or on x-ray film that an error was committed. They also need to see convincing evidence that the error caused substantial damage. Any doubt about the nature of a claim is usually resolved in favor of the physician. Thus, it is imperative that a case be readily provable.

What do I do if I suspect that malpractice has occurred?

When malpractice is suspected, do not accuse or insult the treating health care providers. Quietly request the records in order to have them reviewed by an expert. Seek a second opinion from a similarly qualified health care provider.

If the care by the physician is ongoing, you may want to request a transfer of the patient’s care to another hospital or health care provider. Remember to document the events as they unfold. Buy a spiral notebook and take not of events as they happen. Keep all documentation and records in a folder and bring that with you to each appointment. Write down your questions and the answers for each appointment or phone call. Keep track of how you feel and what you do to make symptoms improve or get worse. Do not trust your memory – write it down. A notebook is especially helpful if many family members are involved in giving care to the patient.
Most importantly, consult an experienced medical malpractice attorney. Dykema Law Offices have attorneys who are also Registered Nurses (RN). They are part of a team that has extensive experience in litigation of medical malpractice cases and in medical/legal knowledge.

What is the time limit for filing a claim of medical malpractice?

You must consult with a medical malpractice attorney as soon as you suspect that medical malpractice happened to you. The time in which one can file a claim of medical malpractice is known as the statute of limitations. Generally, a medical malpractice lawsuit must be filed within two years after the medical malpractice occurred. There are some complicated exceptions to the Statute of Limitations which are very fact specific. Medical malpractice cases are very complicated and require a great deal of investigation even before a lawsuit begins. It is imperative that you consult with a medical malpractice attorney right away. If you do not call us at Dykema Law Offices soon enough, we may decline representation merely due to inadequate time to investigate your case prior to the statute of limitations expiration.

Can any lawyer effectively review and handle a medical malpractice case?

No. These cases are extremely complex, expensive and time consuming. The attorney who reviews these cases should be experienced in handling medical malpractice claims and have sufficient resources to have the case reviewed by top experts.

What fees do most medical malpractice lawyers charge?

Compensation of attorneys is left to the agreement between the Attorney and the Client, subject to Michigan Court Rules. Contingency fee agreements are common in medical malpractice cases. A contingency fee agreement is a written agreement. The client agrees to pay fees to the attorney, for the work performed, in the amount of 1/3rd (33.3%) the net recovery. For example, if your case resulted in a recovery of $10,000.00 and the costs were $1,000.00, the net recovery would be $9,000.00. Then you would receive $6,000.00 and the attorney would receive $3,000.00.

The client is responsible to pay the costs involved in pursuing the case. Needless to say, the costs in Medical Malpractice cases add up substantially. An example of costs are: filing fees, expert witness fees, deposition fees, and medical records fees. Medical expert witness fees are generally in the range of $500.00 to $750.00 per hour. These fees are separate from the fees paid to the attorney.

Do most medical malpractice cases settle?

Yes, though most medical malpractice insurance policies give the physician the right to decide if the case will settle. Reaching a settlement that is acceptable to both parties can avoid an expensive and time-consuming trial.

Do most medical malpractice cases result in a verdict in favor of the patient?

Nationwide statistics tell us that only about 30% of all medical malpractice cases that proceed to trial result in a verdict in favor of the patient. That means that physicians win about 70% of the cases tried in court.

Are Physician expert witnesses easy to find and are they usually willing to testify against another physician?

No. Good physician expert witnesses are not easy to find. However, experienced medical malpractice lawyers usually have resources to find the best witnesses. Many, but not all, medical experts are found out of the state. As a result, the costs in bringing a medical malpractice case rise.

Should I obtain my own medical records or should I get an attorney to get them for me

You should sign a release and obtain your own medical records. At times, when doctors and hospitals see requests from lawyers, such requests put them on notice of a potential claim. Records can be lost or even changed in some instances after a request from an attorney is received.


Are most medical malpractice awards subject to a cap on damages, if so, which damages are capped?

In medical malpractice actions there are two types of damages: economic and non-economic. Economic damages include: lost wages, lost earning capacity, medical bills, future medical bills, and costs associated with medical care that would not have been necessary had it not been for the malpractice of the health care provider. Non-economic damages include: pain and suffering, physical impairment, and physical disfigurement. In Michigan, there is a limit on the amount recoverable for non-economic damages. The maximum for non-economic damages was set at $280,000 in 1993, except in cases of paralysis due to brain or spinal cord injury, impairment of cognitive capacity, or loss of reproductive ability, in which case the limit was $500,000. These amounts increase annually with the cost of living, and are $366,000 and $653,500 in 2005. Any jury award in excess of these amounts must be reduced by the court.


How do I get more information?

If you would like more information, please contact our office to set up a free consultation with one of our experienced medical malpractice attorneys.

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