ERNST & YOUNG
My Loved One Died From Medical Negligence! Now What?
There's nothing more painful than losing the person you loved most, especially when it was preventable. If someone you loved died because a doctor or hospital made a fatal mistake, you might be angry on top of being heartbroken.
Nothing will bring your loved one back, but you might be entitled to compensation for the pain and suffering the doctor caused. Sometimes people feel guilty about doing this, but remember: getting compensation isn't just about money. It's about getting justice for your loved one.
What is Medical Negligence?
Medical negligence is the foundation of any medical malpractice claim. If a doctor doesn't follow the protocols the medical profession has for treating certain illnesses and injuries, he or she may be held legally responsible for any injuries the patient sustained.
In order to get compensation for a loved one's death, you need to be able to prove there was negligence. If the doctor did everything by the book and your loved one died anyway, these sad circumstances are nobody's fault.
See an Attorney As Soon as Possible
If you think you might have a medical negligence claim, you need to see an attorney as soon as possible. Some cities and states have shorter statutes of limitations than others for filing a medical negligence lawsuit, and if you wait too long, you might miss the chance to file on behalf of your loved one.
Find Out If You Are Eligible to File
The executor of the estate is the only person who has the power to file a lawsuit on behalf of your loved one. In addition, under federal law, medical records are considered private for 50 years following a person's death and only the executor of the estate can access them or grant permission for an attorney to access them.
Obviously, if you're the executor of the estate this won't be a problem. If you're not, however, you'll need to get that person on board or you will not be able to file a lawsuit.
In addition, some states have strict laws about who can file this type of lawsuit. Florida, for example, only allows surviving spouses or children under the age of 25 to sue for damages in a wrongful death lawsuit. Your attorney can go over the applicable laws with you.
Get Medical Records to Your Attorney
Your attorney will examine medical records as soon as he gets them and investigate the circumstances of your loved one's death to determine if you have a case. As part of the investigation, he or she may interview you about the illness or injury that led to your loved one's death or about their medical history.
After determining that you have a case, your attorney's next order of business is to find and hire a medical expert to testify during the lawsuit. It's mandatory to have an expert witness who practiced in the same field as the defendant to explain the medical issues and why the doctor's actions constitute negligence. The expert witness will also need access to your loved one's medical records so that he or she can form a valid opinion of the case.
Timeline After Filing
It takes somewhere between 18 months and three years to get to trial after the lawsuit is filed. During this time, your lawyer has to take care of many pre-trial obligations:
- Filing a Certificate of Merit. Some states require an affidavit from a licensed physician that there is reason to suspect malpractice, while other states merely require a statement from your attorney stating that he's talked to a physician who supports the case.
- Discovery. This is the longest part of the process, often taking a year or more. During discovery, lawyers meet with witnesses for the other side to ask questions and review key documents that the other side plans to present as evidence. Often, disputes arise during discovery and the attorneys have to go to court to ask a judge to compel a witness to respond appropriately.
- Meditation. Many cases are settled out of court via mediation. In this process, both sides sit down with a mediator who helps them negotiate a settlement that is agreeable to everyone.
- Trial. If mediation fails, the case is scheduled for trial. Trial dates are often rescheduled if a judge has a conflict; rescheduling means nothing more than a judge being unavailable on a given date. Once the trial begins, it usually takes a week or more for both sides to present their case. Many cases are presented for half a day at a time to free the judge and attorneys to work on other cases in the afternoons. Only about 7% of cases make it to trial; most cases are settled during mediation.
What Happens During Trial?
The trial process itself is similar to a criminal trial. A jury is selected, after which both sides present opening arguments to the jury. Then witnesses testify on the stand and are cross-examined by the opposing counsel.
When all witnesses have been called and both sides have rested, the jury deliberates about whether the defendant is liable and what damages he or she caused you and your loved one. The jury will return with a verdict and a dollar amount of compensation.
In some cases, the losing side will appeal, which means it will ask a higher court to reverse the decision. In this case, you won't get compensation until the appeals are settled.
If your loved one died as the result of medical negligence, it may not be easy to get compensation for your pain and suffering. However, going through this process can force a doctor or hospital to admit publicly that they caused your loved one's death as well as get you compensation for what happened.
If you're struggling to deal with a loved one's death from medical negligence, contact an attorney right away to find out your options and see if filing a lawsuit is the best choice for you.