In the civil law arena, one of the most complex and challenging types of claims is a case involving malpractice. Attorneys that represent clients in malpractice cases tend to be specialists with a significant amount of experience. With that said, perhaps you made the decision to pursue a malpractice claim with no lawyer. If that is the case, you must understand the basics of how to process a malpractice claim without legal assistance.
Most people are able to get to at least second base with a failure to warn claim.  Fewer are able to prove that the doctor simply did not talk to them about that particular risk, although there are cases where a patient’s word has been accepted over a doctor’s insistence that a warning was given.  Getting copies of the doctor’s medical notes can help with this element.
There are no guidelines for determining the value of a malpractice victim’s pain and suffering. A jury cannot look at a chart to figure out how much to award for pain and suffering. In most states, judges simply instruct juries to use their good sense, background, and experience in determining what would be a fair and reasonable figure to compensate for the plaintiff’s pain and suffering. Because juries are given so little guidance about how to calculate damages for pain and suffering, awards of pain and suffering damages can vary widely among plaintiffs with similar injuries.
Jury awards for pain and suffering may vary depending upon socio-economic and political factors within the community from which the jury is drawn.[2] In most states the maximum monetary amount awarded for pain and suffering is capped at what is listed in the particular suit or written complaint. In some jurisdictions there are maximum amounts set in law which a jury may not exceed in awarding damages.
Draft what is known as a "demand letter" to the doctor or other professional you believe is guilty of malpractice. In the demand letter you set forth the general nature of your claim, including the damages you suffered. Set forth the amount of money and other conditions you are willing to accept to settle the case. Set a specific deadline for the professional to satisfy the demand made in your letter. Advise that if the deadline is not met, you will take further legal action.
I was told that I had asthma and was put on inhalers for my asthma I continue to get weak and tired and shortness of breath and decided to go back to the Doctor Who then gave me a chest x-ray and put me on more inhalers and told me that he sure it's just I have asthma, I continue taking the inhaler but never getting any better for about a month and there was no improvements, I decided to give Dr. one more chance and hopefully he would see something different because now I was experiencing gurgling in my chest he shored me that there was nothing wrong and that I didn't have pneumonia it was asthma , that same night I woke up where I could not breathe and had to be rushed to the emergency room where they are I found out I had fluid on my heart as well as in my lungs and was rushed to a hospital that specialize in congestive heart failure. I was then told by the doctors at the hospital that not only did I have congestive heart failure the left side of my heart is very weak and is only pumping at 10% and should be 60% . I know that if I had gone a couple more days using a inhaler for asthma then I did not have I would not be alive today is this a case of misdiagnos
For example, the Court of Appeals of Texas said in 2006 that the parents of a stillborn baby could sue the Harris County Medical Examiner's Office for causing mental anguish after the office allegedly lost the baby's body during an autopsy. The court said the county's relationship with the parents constituted a "special relationship" under which mental anguish damages were allowable in the absence of physical injury.
More often that not, however, a claim will fail on the fourth element, because Judges have a hard time believing that someone who has gone to a doctor with a problem would not accept the doctor’s recommended solution.  People take risks every day – risks involving being in a car, crossing the street, taking pain killers, agreeing to medical procedures. A savvy doctor who is being sued for failing to warn will trawl through your past and look for behaviour that evidences your particular tendency to take risks and will try to use it against you to defeat your claim.  A good medical negligence lawyer Sydney would have taken you through all that before you decide to sue so that you know whether or not you are likely to win a failure to warn claim.

For minor to moderate injuries, you’ll place a multiple of 1 – 5x on the total of your special damages. The number depends on the seriousness of your injuries, and whether they were soft tissue or hard injuries. The more serious the injuries, the higher the multiple. For very serious injuries, you’ll need an attorney to calculate the proper demand.
Malpractice lawyers decline cases because potential compensation doesn’t justify legal costs, Knutsen says. It only makes sense to accept “high-value cases,” meaning those with potentially big claims. The decision rests on the “entirely distasteful” exercise of calculating the value of a life. “It’s cheaper to kill someone than to maim them. In our legal system, as long as you are alive, you have a claim for income loss and pain and suffering. If you’re dead, those claims expire,” Knutsen says.
The doctor acted negligently. The doctor acted negligently if the doctor failed to ask you certain questions, forgot to send the blood test to the proper lab, gave a fake name for your illness and other practices which a similar doctor with the same experience would never have done. To prove this, you will have to show that a reasonable doctor would have recognized your medical problem from your symptoms and diagnosed you appropriately.
Establish that Medical Negligence Occurred – Medical negligence occurs when a healthcare provider violates the medical standard of care, or the professionally-accepted method for diagnosing or treating a specific condition. The standard of care may vary depending on factors individual to each patient, such as age, geographic location, overall health, and the specific condition.
In 2015, a Michigan doctor pleaded guilty to purposefully misdiagnosing patients with cancer and treating patients with strong cancer drugs they did not need. He also pleaded guilty to Medicare fraud, receiving kickbacks, and money laundering. The doctor is currently serving a 45-year prison sentence. A misdiagnosis that leads a healthy person to believe he or she is sick is a nightmare. This extreme example does showcase patient vulnerability and the trust they put in attending physicians.
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.
For example, insurance companies will most likely consider injuries treated by a doctor or specialist to be more serious than injuries treated by a chiropractor. Insurance companies will also do their own reasoning to negate some of the most concrete concepts, like the length of treatment. If they think you didn’t need to your doctor for that last appointment, they will not include that time in the pain and suffering calculation.
“Twenty years ago there was little that could be done to make the life of a disabled person better, save for making them more comfortable, which a kindly, unqualified person could do. Now, we have teams of allied professionals, such as speech therapists and physiotherapists, all of whom have to visit regularly to have any effect on the progress of the patient. These services, while essential for the patient, have contributed to higher compensation awards. In some ways, the high awards are a victory for the many successes in medicine, so much more can be done to improve the lives of people disabled in one way or another,” Irish said.
If you wish to discuss a negligence claim against a medical professional in Ontario, please contact us. The consultation meeting or telephone discussion will not cost you anything. A bit of free advice – any claim you intend to pursue must commence sooner than the two year anniversary of the treatment that you received from your medical health professional. There are exceptions. Don’t rely upon them.
Medical malpractice is the most common legal claim lodges against doctors. A medical malpractice claim arises when a doctor failed to treat the patient in conformance with the accepted medical standard of care and the patient suffered some injury as a result. The medical standard of care is the type of care that another physician in a similar community practicing in the same type of medicine would have provided within the same circumstances.
Non-economic damages cover certain type of injuries that are not out-of-pocket losses, including pain and suffering, disability, disfigurement, humiliation, mental anguish, loss of consortium (companionship) as well as emotional distress. Because these damages are often difficult to calculate and, juries may overcompensate and non-economic damages can exceed actual economic damages. There is no standard formula to calculate these non-economic damages; therefore they vary on a case by case basis and are referred to as subjective damages because they differ according to a plaintiff's personal or subjective experience.
It is very common for an injured person to consult a lawyer saying ‘if Dr Smith had told me I would end up like this I would never have agreed to the procedure’.  While the saying ‘hindsight is always 20/20’ is often appropriate, there are situations where an injured person could and should sue their doctor or other professional for failing to warn them of significant risks of a procedure.
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.
If you or a loved one have suffered from the negligent infliction of emotional distress, it is important to speak with a skilled personal injury attorney. Contact Arnold & Smith, PLLC today for a free consultation with one of our experienced personal injury attorneys about the merits of your case. Personal injury claims must be made within certain time periods of the injury or you lose the right to bring your claim, so time is of the essence in this area of law.
On the other hand, you may have a great case if the treatment made your condition worse. For example, imagine that your doctor diagnoses you with high blood pressure when you're really just showing a temporarily high reading due to stress and pain. The blood pressure medication causes your blood pressure to fall too low and you end up in the intensive care unit for a week at the hospital.
In the context of the doctor-patient relationship, proving the necessary elements of an emotional distress claim can be difficult. Plaintiffs may need medical evidence, from psychologists or orthopedists, of emotional or physical injuries -- the more intense the mental anguish and the longer the suffering, the more likely you'll be able to prove emotional distress. And the more extreme or outrageous the underlying conduct, the more likely you'll be able to link your distress to that conduct.
A woman went on a cruise, where the cruise photographer took a photo of her even after she told him not to. The cruise photographer then photoshopped a gorilla head onto her photo, where it was displayed in a gallery with other passengers. For the duration of the cruise, the crew harassed her, even using a gorilla suit and making lewd comments to her, causing her to stay in her cabin. The Court held that the woman could sue for IIED because she had “good reason to be emotionally perturbed, humiliated, and embarrassed” by the conduct.[8]
In the early stages of the process, the most important thing is finding out who to contact at the insurance company. A claim will not be processed right away because it's important to learn about all the medical expenses before attempting any calculations. Injured parties don't typically wish to risk anything uncovered in their eventual settlements.
I believe that minor children should have as much right to call a lawyer (a free service provided by the government) to help them when they're being emotionally abused, physically abused, emotionally or physically neglected, sexually exploited, and otherwise maltreated... the very same rights as an adult would have. Children are human beings, they're people, and so they SHOULD have the same rights as adults to bring suit for maltreatment, neglect and exploitation against the people that our society/culture trusts to provide adequate care, aka "parents".
Another potential cause of action is intentional infliction of emotional distress. This is based on a doctor’s outrageous conduct that intentionally or recklessly causes a patient to suffer severe emotional distress. This must be beyond a mere slight as it must be something that would outrage society. The common law tort required a physical manifestation of injury, but most jurisdictions no longer require this element. This cause of action has been successful in some cases in which patients recorded their doctors performing medical treatment while mocking and ridiculing the patient to a serious degree.
Because emotional distress cannot be seen or objectively quantified, it may be harder to get money for this type of injury compared to, for example, a broken arm. In many cases, emotional distress is part of a harassment case, such as sexual harassment or another form of workplace harassment. A medical misdiagnosis may cause emotional distress, as well.

There are two general types of pain and suffering: physical pain and suffering and mental pain and suffering. Physical pain and suffering has to do with a medical malpractice victim’s actual physical injuries, i.e., his/her bodily injuries. It also includes conditions like scarring, disfigurement, and permanency of the malpractice victim’s injuries.


Like any profession or job doctors and other medical professionals can make errors of judgement or neglect to carry out their duties to the required standard. Usually this is not the case and the vast majority of medical practitioners do excellent work every day in our hospitals and clinics. When they do occur, however, incidents of hospital negligence and medical errors are often due to the pressure (and fatigue) of working long hours in what is undoubtedly a stressful environment.
If you suffer mental anguish arising from a case of personal injury or medical malpractice, you may recover non-economic damages. However, in some jurisdictions, you may only be allowed to recover a specified maximum. Also, you will have to prove your injuries by a preponderance of the evidence. Talk with an experienced attorney to discuss the details of your case.
This article is for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this blog or any of the email links contained within the site do not create an attorney-client relationship between the author and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of any law firm or Psychology Today.

Another reason that misdiagnosis happens is a faulty lab result or test. Errors in test results can happen because of flawed equipment or human error. In some cases, a technician who administers the test inappropriately, or a secondary doctor who misreads a scan, resulting in a doctor making an incorrect diagnosis, can be held liable. If the hospital staff makes a mistake, the hospital can be held directly liable.
Most people are uncomfortable talking about their injuries. No one likes to be thought of as a whiner or complainer. I find that even my most severely injured clients are wary to openly discuss the full weight and burden that their injuries take on them. It’s understandable that if you have a scar from a surgery or accident that you may not like to discuss the fact that it makes you uncomfortable when strangers stare at it or friends or colleagues ask you what happened. Victims of injury do not often desire to sit and truly reflect on the extent that their injuries have had on their lives. Even so, little vignettes or stories illustrating how someone’s life was like before and then after an accident is crucial in demonstrating to the jury the magnitude of your loss.
When most people think about medical malpractice lawsuits, they imagine that the plaintiff is suing to recoup medical bill costs, lost wages, and economic damages but do not think about emotional distress. While the law has historically limited the ability of plaintiffs to receive compensation for emotional distress, settlements for this type of case have become more commonplace in recent years. It is most common for physical damage to also occur in these cases but this is not always necessary.
Very severe mental pain and suffering can qualify as acute stress disorder or even post-traumatic stress disorder (PTSD). You may have thought that PTSD only affects soldiers or crime victims, but it can affect medical malpractice victims as well. Some people keep replaying all of the bad things that happened to them over and over in their head, and it can become very debilitating.
My ex husband and I have been divorced for 5 years now. He has primary physical care during the school year and I have primart during the Summer. Ever sense the divorce he has made my life a living nightmare if he doesnt like something or if its not what he wants. In results to all of this through out the year made me have suffer from depression. What can I do?
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.
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.
Mental anguish is an element of non-economic damages usually sought in personal injury cases, medical malpractice and sometimes defamation cases. Generally, "mental anguish"  translates to certain types of suffering that may include distress, anxiety, fright, depression, grief, or trauma. In many jurisdictions, plaintiffs may recover for mental anguish; however, some states set compensation caps on non-economic damages.
While most people may immediately think of a formal lawsuit when they consider seeking compensation for injuries caused by medical negligence, the fact is that in some situations, avoiding the expense and potential uncertainty of a formal lawsuit may result in a more favorable outcome. Others simply want to avoid "suing their doctor", but want to get compensation for their injuries. Read on to learn more about the options for resolving your medical malpractice case outside of the traditional court setting.
The doctor was negligent. Just because you are unhappy with your treatment or results does not mean the doctor is liable for medical malpractice. The doctor must have been negligent in connection with your diagnosis or treatment. To sue for malpractice, you must be able to show that the doctor caused you harm in a way that a competent doctor, under the same circumstances, would not have. The doctor's care is not required to be the best possible, but simply "reasonably skillful and careful." Whether the doctor was reasonably skillful and careful is often at the heart of a medical malpractice claim. Almost all states require that the patient present a medical expert to discuss the appropriate medical standard of care and show how the defendant deviated from that standard.
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