Medical malpractice can cause significant consequences for both patient and provider. When a provider fails to deliver proper care, such acts or negligence may lead to detrimental health issues for the patient, up to and including fatality. When this happens, a patient or their family may consider hiring an attorney to pursue legal action against the provider.
Brian Eisen, president at The Eisen Law Firm in Cleveland and Beachwood, Jay Kelley, managing partner at Elk Co., Ltd. in Cleveland, and Howard Mishkind, attorney at Mishkind Kulwicki Co., L.P.A. in Beachwood, offered advice on when to pursue legal action for malpractice and what to look for in an attorney.
“Medical malpractice is when a healthn care provider fails to act reasonably in diagnosing or treating a patient’s condition and, as a result, the patient is harmed,” Eisen explained.
He mentioned that malpractice lawsuits can be very costly and time-consuming, so legal action is usually taken only when the patient has suffered a very significant, permanent injury.
Eisen advised that people seeking an attorney to assist them in legal proceedings look for one that handles malpractice suits regularly, and be aware of people who advertise having expertise in this area, but can not actually handle such cases.
“Sadly, some of the biggest advertisers are phonies who mislead people into thinking they are real malpractice attorneys,” he cautioned.
He pointed out that many people misunderstand the intentions behind malpractice suits, believing patients pursue action in order to gain significant funds.
“Nothing could be further from the truth,” Eisen noted. “These lawsuits are difficult and expensive to pursue, and there are many built-in safeguards to ensure that frivolous suits do not succeed.”
In most cases, patients simply want to hold providers accountable and be restored to the position they would have been in had no medical negligence occurred. Patients may also seek legal action to prevent such events from happening to future patients, Eisen said.
“Medical malpractice is when either an action or a failure to act causes harm resulting in damages,” Kelley said. “The action or failure to act has to have been unreasonable, given a patient’s presentation.”
Kelley explained that most people, when something unexpected or unfortunate happens and they don’t understand it, typically reach out to an attorney for an answer as to what occurred and to find out what remedies are available. He added that they are typically seeking either medical care to correct the action or wage replacement.
He noted that malpractice cases are some of the most difficult ones and have one of the shortest statutes of limitations.
Kelley recommended that people searching for an attorney to represent them look for someone who has experience with cases related to the specific field of medicine in which the malpractice occurred. He said some of these fields may be surgical issues, delays in cancer diagnoses or birth injuries.
“I think the most important thing to look for is a firm or individual who has handled this area of law, that would be medical malpractice, and particularly the case type or medical area that you are seeking to pursue,” Kelley advised. “You want to make certain that the lawyer or lawyers that you’re going to utilize have experience and familiarity with that medical topic.”
In pursuit of such action, Mishkind explained that patients must prove to the court that the provider was negligent to the patient and such negligence resulted in injury or death.
“Many people think that if a doctor did not intend to cause injury, or if the doctor did the best he could and a bad result occurred, that the doctor should not be held accountable for the injury,” Mishkind stated.
He explained that each act or omission by the doctor that resulted in an injury will be evaluated in terms of whether it was preventable. Such a case also requires testimony from another doctor, in which they explain what should have been done to meet the standard of care and what injury resulted from that failure.
Mishkind noted the importance of medical providers being transparent with their patients with explanations as to why something went wrong.
“Frequently, the medical professional does not adequately explain why a medical injury occurred and why it may or may not have been avoidable,” he said.
When this happens, Mishkind advised that a patient or family consult with an attorney who specializes in malpractice cases.
He highlighted the importance of seeking an attorney who displays honesty and candor in terms of the process. Qualified attorneys should also have experience in the area of concern and be able to explain the process to the client without making any unrealistic promises.
Some people believe that malpractice means the doctor intended to cause the injury, which is not true, Mishkind noted.
“If a doctor was negligent and his negligence caused injury, the law does not require proof of guilty or proof that the doctor intended to harm the patient,” he explained.
Mishkind stated that some people believe these suits are done for frivolous reasons, which is false.
“It is very expensive and difficult to win and most cases that wind up in litigation have been thoroughly investigated and have merit,” he said.
Cases that are not of merit rarely get filed, Mishkind said
“Consulting with an experienced lawyer is always the best option because you don’t want to proceed with a lawsuit if it is only going to cause you or your family more pain and suffering,” Mishkind stated.