Should You File a Malpractice Lawsuit?

If you feel you’ve suffered because of a doctor’s professional negligence or lawyer’s professional negligence, then you may want to consider filing a malpractice lawsuit.

 

Legal and Medical Malpractice 

Legal malpractice is actually a form of negligence in which a lawyer breaches his contract or fiduciary relationship and causes harm to a client. That said, the majority of malpractice lawsuits take the form of medical malpractice.

Medical malpractice occurs when a doctor or nurse fails to exercise the level of care that a doctor or nurse of the same medical specialty would be expected to exercise under similar circumstances.

Medical Malpractice and Medical Error 

In other words, a doctor was supposed to do one thing, failed his professional duties and did another, which resulted in the patient’s harm or suffering. The majority of cases of medical malpractice involve a medical error, or a preventable adverse outcome of medical care.

An example of a medical malpractice lawsuit involving medical error would be a patient who received a wrong or partial diagnosis and subsequently went on to experience an injury and unnecessary suffering.

Although doctors frequently have professional liability insurance to protect against medical malpractice lawsuits should a medical error occur, you can still bring a medical malpractice lawsuit against a doctor if you feel professional negligence caused your suffering.

Misdiagnosis and Medical Malpractice 

A large percentage of successful malpractice lawsuits started with partial or belated diagnoses or plain misdiagnoses. Just consider that when a physician makes the wrong call and either fails to provide the right diagnosis or does so too late the patient unnecessarily suffers.

Going back to the definition of medical malpractice, a successful malpractice lawsuit will depend on proving that a more competent physician with the same medical expertise operating under similar circumstances would have made the correct diagnosis.

Statistics on Medical Malpractice Lawsuits 

Very few doctors are totally immune from the threat of a medical malpractice lawsuit. In fact, the New England Journal of Medicine found that three-fifths of low-risk doctors will combat a medical malpractice lawsuit during their practicing lifetime while nearly all doctors in high-risk professions will combat a medical malpractice claim.

Further, in 2012 nearly four billion dollars was awarded to clients in medical malpractice payouts. California was one of the highest states in terms of medical malpractice payouts – nearly a quarter billion dollars annually goes towards medical malpractice payouts in California.

Fives states – California, Florida, New Jersey, Pennsylvania and New York – account for 48% of all medical malpractice payouts. That said, the vast majority of payouts related to medical malpractice relate to settlements (93%) rather than judgments.

Causes for Medical Malpractice Lawsuits 

One-third of medical malpractice claims are related to a misdiagnosis, which makes misdiagnosis the most common reason for filing a medical malpractice lawsuit.

When a doctor fails to provide a correct and complete diagnosis to his patient and subsequently faces a malpractice lawsuit, the doctor failed to act as competently as another doctor of the same medical speciality operating under similar circumstances.

Surgery and treatment, respectively, were the next most frequent reasons behind medical malpractice lawsuits. Also, in most medical malpractice lawsuits the most severe injury is significant permanent injury or death.

When to File a Medical Malpractice Lawsuit 

If you feel you have suffered due to the professional negligence of a doctor, then you may want to consider a medical malpractice lawsuit.

Although misdiagnosis is the number one cause behind medical malpractice lawsuits, medical errors (e.g., incorrect prescriptions) as well as surgical mistakes account for a large share of medical malpractice lawsuits.

What to do When Your Attorney Fails You

Imagine calling your lawyer to find out the status of your legal case only to find out the court dismissed your case without a hearing. You ask more questions and discover that your attorney failed to file your claim within the time required by law. The first question that comes to your mind is, “Can I sue my lawyer?” The answer is “Yes.” 

You can sue your lawyer for legal malpractice, but there are some big hurdles to get over in order for your lawsuit to be successful. There are four elements you must prove in order to prevail. 

Elements of a legal malpractice case.

1) You must prove you actually had an attorney/client relationship. If you only spoke to a lawyer informally at a party and got vague legal advice, that will not count. You must have evidence that you secured the services of the attorney to work on your behalf and obtained legal advice you relied on. 

2) The next step is to prove that your lawyer was negligent, or that he or she acted below the standard of care practiced by other lawyers in your community. Examples of negligence are: 

• Failure to file a complaint within the statute of limitations – or before the legally established time has run out. This presumes you consulted the attorney prior to the running of the statute, but he or she failed to file within the deadline. 

• Missing other court deadlines, resulting in the dismissal of your case. 

• Abandoning you by failing to return your phone calls or answer your letters.

• Failing to comply with court orders. 

• Commingling the attorney’s personal funds with the trust account that contained the money you paid your attorney to work on your case. 

• Settling your case without telling you and keeping the money. 

3) Even if you prove you had an attorney/client relationship, and your lawyer was negligent, you still have to prove that the negligence act was the proximate cause of your injury. This means that the outcome would have been different if the attorney had not been negligent. This is the hardest part. It is often referred to as presenting “a case within a case” since, in order to win your legal malpractice case, you have to prove you would have won the underlying case if the attorney had not been negligent. 

4) Finally, you must prove the amount of money you lost due to the attorney’s negligence. 

Important considerations before pursuing a legal malpractice claim. 

• If you sue your attorney for legal malpractice, you will give up the attorney/client privilege with that attorney. Anything and everything you ever told that lawyer in confidence can now be revealed in court. 

• Just because you lost your case does not mean your attorney was negligent. Even if another attorney would have done better does not mean your attorney was negligent. 

• Errors in judgment do not amount to malpractice. For example, your lawyer may have had a very good reason not to call a certain witness at trial. After the trial is over, hindsight may make it clear that was a poor decision and the witness should have been called to testify. That type of honest belief that the decision was correct at the time does not open the door for a legal malpractice action. 

• If you decide to sue your lawyer, you must do so within the statute of limitations established by the California Code of Civil Procedure. There are some complex aspects to the statute. Consult an experienced legal malpractice attorney for more information.