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How do I recover damages sustained due to malpractice in a hospital?

UPDATED: December 15, 2019

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A hospital malpractice case generally involves negligence or a breach of the standard of care by a hospital employee. Contrary to popular belief, most doctors are not directly employed by hospitals. In fact, doctors are, for lack of a better term, subcontractors, whereas nurses, aides, paramedics, medical technicians are common categories of hospital employees. To recover damages in a hospital malpractice case, a hospital employee must either be negligent or breach the standard of care. The standard of care is the level at which the average, prudent provider in a given community would practice.

Types of Damages Available in Hospital Malpractice Cases

The damages available in a hospital malpractice case generally fall into three categories: economic, non-economic, and punitive.

Economic damages encompass such things as medical expenses, loss of wages, loss of earning capacity, and continuing care expenses. Economic damages are quantifiable, and can be assessed for both losses already incurred and losses that will incur in the future. 

Non-economic damages encompass things such as pain and suffering, loss of companionship or loss of consortium (an inability to perform physical aspects of a marital relationship). Non-economic damages are harder to quantify, as the actual value of things like pain and suffering are subjective. Non-economic damages in hospital medical malpractice cases are capped, or limited by law in several states. In states without caps, non-economic damage awards can be up to millions of dollars, depending on the type of case.

Punitive damages are the third and final type of damages, and they are the least common largely because there is an extra layer of negligence required. Punitive damages, awarded for no other reason but to punish the offending hospital or employee, are generally only available in cases of gross negligence. Gross negligence is loosely defined as conduct that is “worse than negligent.” Usually, this means some type of intent to do harm or blatant disregard of the standard of care. Punitive damages may or may not be capped, depending on the jurisdiction. Over forty states allow for punitive damages in malpractice cases.

Understanding the Legal Process

Recovering damages in a hospital malpractice lawsuit has little or nothing to do with how you were treated personally, and everything to do with how you were treated medically. You can’t sue a hospital because you had an unfriendly nurse. But if that unfriendly nurse breached the standard of care, you likely have a case. If you think you’ve been the victim of hospital malpractice, consult a local attorney as soon as possible. There are often time and notice requirements for hospital malpractice suits, and since anyone unfamilar with malpractice is unlikely to know whether or not there is a case, an attorney will hire an expert or consultant to help determine if and how . This takes time, often several months.

If your attorney and experts come to the conclusion that you were very likely a victim of malpractice, litigation will follow. In some states, a suit is filed or pre-suit negotiations are initiated. In other states, your attorney will file a Notice of Intent to Sue (NOI). The NOI puts the hospital and employees on notice that the suit is coming within a certain period of time, and allows for an early exchange of information. This usually includes the defendant hospital turning over any and all records pertaining to your care. Records are the lifeblood of malpractice cases, and the sooner your attorney has your records, the sooner an expert can analyze them to determine where the malpractice occurred. The NOI also details exactly how you’re alleging the hospital breached the standard of care, and is usually accompanied by an affidavit from a medical professional swearing to the case’s merit.

What Happens after the NOI Expires?

Once the Notice of Intent to Sue period has expired (or if one isn’t required) your attorney can file the formal lawsuit. From that point on, it is a matter of investigation and negotiation. Occasionally, hospitals or insurance companies will try to settle cases early in the process. Early resolution isn’t guaranteed, but it is common in the age of expensive court cases. Hospitals, which are often self-insured, would rather avoid the cost of litigation if at all possible. Whether early resolution is right for you depends largely on the extent of your injury and the amount of money you have deemed acceptable to make you whole.

The Discovery Period & What Happens Next

If the case does not resolve in the early stages, a discovery period will take place. This allows all the attorneys to investigate the facts of the case, including interviewing and deposing witnesses, obtaining expert analysis, and collating all of the information. During the discovery period you’ll likely be subjected to some defendant-requested medical testing. The nature and extent of the testing depends on both the injury and the rules governing malpractice suits in your particular jurisdiction.

Once the discovery period has come to a close, and if the case has not settled in the interim, you’ll proceed to trial. At trial, you’ll have the opportunity to present your case, including how the hospital breached the standard of care and how the breach caused your injuries. The hospital will have a chance to refute your claims. Ultimately, a jury will decide whether the hospital is liable or not. In the event you win at trial, the jury will also decide the amount of your damages. Convince a jury that a hospital or its employee violated the standard of care, and that the violations caused your injury, and you’ll likely win your case.

Why It Is So Important to Have an Attorney

More so than in other areas of law, it is essential that you retain a malpractice attorney the minute you start to seriously contemplating a hospital malpractice case. Hospital malpractice attorneys know the ins and outs of the law of your jurisdiction. Without an experienced local hospital malpractice attorney, you could be barred from bringing your claim on technicalities. If you’ve been injured and you believe a hospital is at fault, find a reputable attorney as soon as possible. The recovery of hospital malpractice damages can be difficult even in the best case. Without a knowledgeable attorney, you’ll be fighting an uphill battle.

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