The standard of care—this varies with the level of specialty of the doctor—the standard may be higher for specialists. And it varies with time—today’s standard may not be good enough next year. You can’t always expect the best care available at the most sophisticated research hospital. The standard of care may be affected by the level of hospital that treats you.
A doctor-patient relationship existed. You must show that you had a physician-patient relationship with the doctor you are suing -- this means you hired the doctor and the doctor agreed to be hired. For example, you can't sue a doctor you overheard giving advice at a cocktail party. If a doctor began seeing you and treating you, it is easy to prove a physician-patient relationship existed. Questions of whether or not the relationship exists most frequently arise where a consulting physician did not treat you directly.
Medical malpractice cases almost always require medical experts to testify about the proper standard of care that should have been provided under the circumstances. These are often physicians who practice within the same type of medicine that the physician defendant practices in. These individuals are usually tasked with the responsibility of explaining that the defendant deviated from the standard of care and that this deviation resulted in the patient suffering the harm alleged in the complaint.
The manner in which medical malpractice is addressed in countries around the world varies widely. For example, many countries do not permit jury trials. In these locations, judges or administrators may make the final decision. Moreover, malpractice awards, even when they are given, are often much lower than amounts received in the United States, giving rise to the argument that injured patients may not be fully compensated for their losses in overseas jurisdictions. Plus, there are logistical difficulties. A foreign lawsuit necessitates retention of a foreign attorney and physical presence in the foreign country for legal proceedings. Importantly, many foreign countries do not permit attorneys to take cases on a contingency fee basis.
A physical impact is not necessary for an emotional distress claim when there is a breach of fiduciary duty, the superior court said. Doctors have a legal and ethical responsibility to care for patients' well-being and, under the circumstances, it was reasonably foreseeable that Toney would endure emotional distress during the birth of her son, the court said.

In another case, the Appellate Division of the Supreme Court of the State of New York allowed a couple to sue a fertility clinic for emotional distress after the clinic implanted the female plaintiff's embryo in another woman. Although neither plaintiff was physically injured by the implantation, both suffered emotional injury due to the defendants' breach of their duty of care, the court said.
One number represents the most the insurer will pay for one claimant, and the other number represents the maximum the insurer will pay in total, regardless of the number of claimants involved. This second number would come into play if there were injured passengers involved. You probably have seen split limits before, they most often look like: 50/100 or $50,000/$100,000.

As this article has made clear, it’s not easy to come up with a clear number that accurately accommodates for pain and suffering. How inconvenient or awful one person may consider a life-long back injury is not the same as another person. Likewise, how you determine a dollar amount is even trickier since both pain and how it affects someone is extremely subjective.
Notify the professional's malpractice insurance company of your claim. Although the professional should take this step on his own, you better protect your interests by making such a notification on your own. In most states professionals legally are required to provide a client with the name of their malpractice insurance carrier. If you fail in getting this information directly, the state licensing authority for a particular professional should have a record of her malpractice insurance carrier.

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Plaintiffs can also sue for the negligent infliction of severe emotional distress that they experienced because of someone else’s injury. This types of suit occur sometimes when a person has to witness the injury or death of a loved one caused by another person’s negligence. However, to succeed on such a claim one must be able to prove that their distress was an immediate and foreseeable result of the defendant’s behavior. In addition, the plaintiff generally must physically witness the accident in order to be able to recover for this type of claim.

Car insurance policies that extend beyond personal injury protection (PIP) generally provide coverage for most types of damages, including pain and suffering claims. The two most common types of auto insurance coverage are bodily injury (BI) and uninsured/under-insured (UM) motorist coverage. Both BI and UM can be used to cover pain and suffering, but only up to the amount of the policy limits. Bodily injury coverage most commonly has two policy limits, or split limits.


When suing a hospital or a doctor, you usually seek to recover past and future medical bills, lost wages, and other financial losses. But you can also seek compensation for pain and suffering. Generally, a person can pursue a claim for pain and suffering when they are injured due to negligence and experience either pain or suffering, individually or combined.
Significantly, your attorney can only use these examples of loss to illustrate your injuries if you provide it to him or her. If your case is in litigation you will most likely sit for a deposition (your testimony given under oath before a court reporter who is taking down questions directed to you by the defense attorney and your responses). In preparing for your deposition, your attorney may ask you to explain how this accident has affected your life. Be ready to give real life examples so that your attorney can best advocate on your behalf.
VI. The medical professional is often called upon to adopt a procedure which involves higher element of risk, but which he honestly believes as providing greater chances of success for the patient rather than a procedure involving lesser risk but higher chances of failure. Just because a professional looking to the gravity of illness has taken higher element of risk to redeem the patient out of his/her suffering which did not yield the desired result may not amount to negligence.
Not every mistake or bad result means there was negligence—doctors and healthcare providers are not liable for every mistake. The law realizes that doctors often have to make quick decisions without the best information. The key question is this: did the doctor make a reasonable decision that other reasonable doctors would have made in the same situation—even if later it turns out to be the wrong decision that caused a bad result. For example, you complain to your doctor of severe head pain. They pay attention and examine you. They carefully take your medical history, listen to you describe your symptoms, and order the right tests. Using the results of this examination, they decide that you have an ordinary tension headache that will go away. Later, it turns out that your doctor was wrong, and the pain was not caused by a tension headache. The doctor’s diagnosis was wrong. But your doctor still provided the proper standard of care, the same care that other doctors would have provided in this case. The doctor was not negligent and you probably won’t win if you sue the doctor for malpractice.

As there is no way to accurately quantify the value of a plaintiff's pain and suffering, juries are asked to use their best judgment in coming up with the amount of a pain and suffering award. Keep in mind, however, that some states have instituted damage caps that place an upper limit on the amount of pain and suffering damages that may be awarded.
A physical impact is not necessary for an emotional distress claim when there is a breach of fiduciary duty, the superior court said. Doctors have a legal and ethical responsibility to care for patients' well-being and, under the circumstances, it was reasonably foreseeable that Toney would endure emotional distress during the birth of her son, the court said.
Your lawyer will decide whether or not to pursue your case against the hospital.  If the lawyer takes the case, he will then need to retain an expert medical doctor to submit an affidavit detailing how the treatment was below the standard of care, and how that departure from the standard of care led to an injury.   The case will then go through the pre suit process, which is a 90 day period during which the hospital investigates the claim.  At the conclusion of the presuit period the hospital can deny the claim, or accept responsibility.  Often times the parties will agree to mediate the case during the presuit period, and this often results in a settlement.  If the case does not settle during presuit, the lawyer will then file a complaint of medical negligence against the hospital. This is where the work really begins.

While such an idea once sounded like pure science fiction, it would present enormous opportunities in business, leisure, and medicine. Imagine, someone with a rare disease or medical condition could quickly travel anywhere in the world to obtain the best treatment option. In fact, this is already occurring, as people travel to numerous places for both medical and dental treatment. But, as we all know, sometimes medical treatment goes wrong, and this raises an interesting question. Can you sue doctors in other countries for medical malpractice?

Most people know that if a hospital makes a mistake that hurts them, they can sue the doctor or nurse or hospital in state court under state medical malpractice/ negligence laws. What most people, including many lawyers and doctors do not know is that you can also sue hospitals for failure to evaluate and/ or stabilize a medical condition that causes harm to the patient under a federal statute. The statute is commonly referred to as the Emergency Medical Treatment & Labor Act (EMTALA).

You can also recover damages for physical pain and suffering, mental and emotional suffering, inconvenience, disfigurement, loss of enjoyment of life and "loss of consortium" (the loss of company/love/relations with your spouse). Many states have set limits on the amount of damages available to injured patients in medical malpractice cases. So, pain and suffering for the same injury may be in the millions in Illinois, but will be $250,000 or less in a state that limits pain and suffering damages to $250,000.
Search for disciplinary sanctions. Visit your state’s disciplinary board to see if the attorney has been sanctioned in the past. Attorneys are sanctioned for ethics violations, such as disclosing client confidences or failing to respond to client emails. They are not sanctioned for failing to win cases, unless their performance was so low as to be negligent.
Doctor's surgeries also have a legal duty to provide an acceptable level of care to their patients. This will take into consideration issues such as waiting times, diagnoses and administration. If the surgery fails to reach the standards reasonably expected of the medical profession, and this directly harms their patients, the doctor's surgery will have been negligent.
Medical malpractice cases can be complex. It can sometimes take a medical expert to understand what really happened. Yet it is a jury of non-medical people who will decide whether you win or lose your malpractice case. Your lawyer and your medical expert witness must be able to present difficult medical issues to the jury in a way that is easily understandable and that makes common sense.

In the state of North Carolina, an individual is held accountable for the intentional infliction of emotional distress if the victim or plaintiff can prove that the defendant’s conduct was outrageous and extreme, that the conduct was intended to cause severe emotional distress, and that the defendant’s conduct did in fact cause severe emotional distress. Although the definition of outrageous conduct can be subjective, it should be more than just threats, annoyances, insults, and petty oppressions.


Medical malpractice insurance carriers generally require very large deductibles from their insured doctors. Furthermore, most states have laws that require doctors to report any claims of medical malpractice to a state-run board, which can result in higher insurance rates. Doctors may be willing to settle for an amount at or around the amount of their deductible, as it will abrogate the need for them to report the case. They are simply choosing to pay you the amount of the deductible instead of paying the insurance company. Seek counsel before accepting this type of settlement, as you need to be sure your future medical needs will be provided for.

Expert witnesses, copies of medical records, deposition and witness fees, medical exams -- all of these things cost money. And if you lose your case, you could very well be on the hook for thousands or tens of thousands of dollars in expenses - depending on your legal fee agreement. Is your case important enough to you that you feel the potential financial benefit outweighs the risk?
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