Medical Malpractice Q&A
We have prepared a list of questions we most frequently hear from clients regarding medical malpractice cases.
- What is a contingency fee?
A Contingency Fee is an attorney fee that you will only pay if we recover compensation on your behalf either through settling your case or winning the case at trial. In other words, “no win, no fee.”
The fee is calculated as a percentage of the gross recovery. Our standard Contingency Fee in medical malpractice cases is 40% of the total amount recovered for you by way of compensation.
For example, if we recover $100,000 on your behalf either through settlement or at trial, our fee will be $40,000. If, however, we do not recover any money for you, you will not owe us a fee for the work we have done on your behalf. The only money you will owe us in that situation is reimbursement of the costs and expenses of the case, which are described below.
- What are the costs or expenses associated with the case and who is responsible for paying those?
There are costs or expenses that we have to pay on your behalf to investigate and pursue your case. They include expenses for obtaining medical records, fees paid to expert witnesses to evaluate your case, court fees, court reporter fees, deposition expenses, and other litigation expenses. These fees will remain your responsibility regardless of whether we win or lose the case. After our initial evaluation of your case, we may ask you for a retainer to pay for the expenses of the case.
Our office will keep you informed as to the amount of these expenses as the case proceeds. We offer payment plans to spread out the costs for you and, in some situations, we may be able to advance the costs on your behalf so that you do not have to pay them upfront. We will discuss all options with you at the outset of the case.
- Can I pay for representation in my case on an hourly basis?
Yes. If you prefer that we represent you on an hourly rather than a contingency basis, we will charge an hourly fee for the work we do on your behalf and bill you for our time at regular intervals.
- What do I have to prove in Medical Malpractice Claim?
Burden of Proof: In a medical malpractice case, the Plaintiff has the “burden of proof.” This means that it is up to the Plaintiff (or the injured person) to prove that the defendant was negligent. Unlike a criminal case, where the prosecution must prove the case “beyond a reasonable doubt,” in a civil case, the Plaintiff must prove all elements of the case only on a “more probable than not” basis.
Standard of Care: The Plaintiff (injured person) must prove that the healthcare provider (defendant) failed to meet the “standard of care” for the specialty or profession to which he or she belongs. The standard that the courts apply is that of a reasonably careful or prudent healthcare provider acting in the same or similar circumstances. For example, if the alleged negligent care was provided by an orthopedic surgeon, the standard of care is that of a reasonably careful orthopedic doctor treating a patient in the same or a similar situation.
Medical negligence cases, other than in exceptional circumstances, can only be proved through the testimony of an expert witness, who practices in the same field of medicine as the defendant. For example, if the care in question was provided by an Emergency Room physician, we will generally need to hire an expert who is an Emergency Room physician to provide an opinion as to whether the care provided was outside the applicable standard of care. A “violation of the standard of care” is the same as saying, “the doctor was negligent.”
Causation: In addition to proving that the care was negligent, the Plaintiff must also prove, on a more probable than not basis, that the negligent care caused the harm complained of. This is known as causation. There are some situations where the care provided was negligent, but it did not cause any harm. For example, a radiologist may negligently miss a fracture on an x-ray, resulting in a delay in diagnosis for one week. If the treatment is the same one week later with the same outcome in terms of recovery, the negligent failure to diagnose the fracture did not “cause” any injury. In that situation there would be no case to pursue because no harm or damage was caused by the negligent care.
We will evaluate the causation aspects of your case with the assistance of experts in relevant medical fields.
We will only recommend that you proceed with a case if we believe that we can prove both negligence and causation.
Damages: A Plaintiff has to prove that he or she has suffered damage caused by the defendant’s negligent care.
If damage can be proved, there are two types of “compensation” that a Plaintiff may be entitled to recover. The first is known as “special damages” or “economic damages,” and these are the expenses or economic losses that result from the alleged negligent care. Such expenses will often include medical expenses, lost wages and, in cases involving more serious injury, the cost of ongoing care, assistance around the home, adaptations to the home, and specialist therapies.
The second type of compensation is known as “general damages” or “noneconomic damages.” This is compensation for the Plaintiff’s pain and suffering, disability, emotional suffering and loss of enjoyment of life. If it is a medical malpractice case involving a death, damages may include compensation for the deceased person’s pre-death pain and suffering. Wrongful death damages may also include compensation to close family members such as the spouse and children of the deceased, for the loss of the love, support and companionship of the person who has died.
If the injured person was married, their spouse may also have a claim for the losses they have suffered. This is known as a “loss of consortium” claim.
We will work with you and with experts to evaluate your damages claims.
- Do I have to repay my healthcare insurer for the medical bills they paid?
Yes. If some of your medical treatment was required because of the negligent care (rather than the underlying medical condition that took you to the healthcare provider in the first place), and if that care was paid for by Medicare, Medicaid or a health insurance company, they will be entitled to repayment. This is known as a lien or subrogation claim. You will only have to repay the medical expenses if you recover compensation. We will include the medical expenses as part of your claim.
We will work with you and your health insurer or Medicare/Medicaid to reach an agreement as to the appropriate amount to be repaid out of any compensation you receive.
- What are the steps in evaluating and pursuing a case?
Evaluating the Case: The first step we take in evaluating a medical malpractice case is to speak with you and find out what happened. If, based on that history, we feel that the case should be investigated further, the second stage is for us to request the medical records that will allow us to start to evaluate whether the care was negligent and, if so, whether the negligent care caused damage or injury.
If, after reviewing the medical records, we still conclude that your case has potential merit, we will have you sign a contingency agreement with our firm and will then usually send the records to experts in appropriate medical fields to provide an opinion as to whether the care was negligent and, if so, whether it caused the injury or damage complained of. If those experts support the case and you have suffered significant damages or injury as a result of the negligent care, we will usually recommend that you proceed with a claim. Typically, we will recommend that an attempt be made to settle the case before filing the lawsuit.
Filing a Lawsuit: If we are unable to settle the case and if pursuing the case appears to make economic sense, we will file a lawsuit on your behalf. Medical negligence cases are very expensive to litigate because the costs are high – in particular, the expenses associated with retaining and paying for medical experts to review and provide opinions on the case. Filing a lawsuit involves filing with the court a document called a “Complaint,” which names the defendants whose care is alleged to be negligent and includes allegations of negligence, causation, and damages.
The Discovery Stage: After we have filed and served the lawsuit on your behalf, we enter what is known as the “discovery” stage of the case. The discovery stage involves the exchange of information relevant to the case with the opposing party or parties.
The court rules allow for the parties to submit written discovery requests to each other. These are questions and/or requests for information or documents relevant to the case.
The rules also allow the parties to take the deposition of the opposing party and other potential witnesses in the case, including family members, treating healthcare providers and, for cases that are proceeding in Washington State, expert witnesses who will testify in the case. There are no expert depositions in Oregon.
During this phase of the case, we will continue to work with our expert witnesses to develop the various parts of your case. We will also work with the defense attorney to find out if they are interested in discussing a settlement of the case.
Settlement Negotiations: Many cases settle before trial, although of course there are no guarantees. Although cases can settle at any time, the majority of cases that settle do so after the discovery stage of the case and before trial.
We will work with the defense lawyers throughout your case to explore whether the defendant has an interest in settlement. We will work with you to put together a settlement demand. Sometimes we will negotiate directly with the defense attorney on your behalf and sometimes we will work with a mediator to assist in settling the case.
Mediation involves the parties hiring a mediator, who helps the parties negotiate a settlement. Oftentimes, the mediator will be a retired judge or highly experienced trial attorney. Mediation is a voluntary process and all the parties have to agree in order for it to occur. The mediator will consider the evidence on both sides and help the parties to try and negotiate a settlement. It should be noted that the defendants will decide for themselves how much they will offer for a settlement based on their own evaluation of the case. The mediator does not make any decisions regarding the amount of settlement, rather the mediator will encourage the parties to arrive at a mutually agreeable number based on their evaluation of the evidence. The ultimate settlement amount will be decided by the parties and involve compromising.
It will be your decision whether to accept any money offered by way of settlement. We will advise and assist you throughout this process. We will also help you to understand what net amount you will receive in the event you consider accepting an offer.
Trial: If the case does not settle, we will prepare the case for trial. This will involve compiling the medical records and other documents we will want to refer to at trial, working with the experts who will testify and helping you to understand what to expect at trial. We likely will also want to meet with family members and other friends and coworkers who will testify as witnesses at trial.
As a general rule, the Plaintiff should be present in court throughout the trial. The length of the trial will depend on the complexity of the issues and the number of witnesses who will testify on both sides. The Plaintiff will almost always have to testify in court.
The costs associated with a case will generally increase significantly as we prepare for and proceed to trial. This is because expert witness fees are expensive. Experts charge by the hour with typical hourly rates ranging from $500 to $800 an hour. Expert fees increase as our experts review the depositions and discovery, prepare to testify, and travel to court and testify in the courtroom.
At trial, the parties first select a jury. Next, the parties make opening statements explaining what the case is about and what the evidence in the case will show. The Plaintiff then presents their case by calling witnesses to testify. The defense attorney will have the right to cross examine Plaintiff’s witnesses.
The defense will then present their case after which the plaintiff will have the opportunity to cross examine the defense witnesses. Finally the plaintiff may present any rebuttal evidence.
At the conclusion of all the evidence, both sides make closing arguments. The jury will then deliberate and decide which party will prevail.
Throughout the case, the Judge presides over and controls the proceedings. The Judge rules on issues involving the admissibility of evidence and other legal questions that a jury cannot answer.
- Who is entitled to bring a Wrongful Death claim?
A Wrongful Death claim is brought by the Personal Representative of the estate of the person who has died. Usually, the next of kin will apply and be appointed by the court as the Personal Representative. The Personal Representative will bring the claim on behalf of the deceased’s estate and on behalf of the “statutory beneficiaries” identified in state statutes. Typically, the “statutory beneficiaries” will include the spouse and any children (including adult children) of the deceased. However, the rules surrounding wrongful death claims are complicated. They also differ in Oregon and Washington. It is important to contact an attorney right away if you believe your spouse or loved one died due to negligent medical care.
- What are the time limits for bringing a claim?
The time limits for filing a lawsuit are complicated and there are different rules in different states.
Medical Malpractice in Washington: As a general rule in Washington, a medical malpractice case must be commenced by filing a lawsuit with the appropriate court within three years of the alleged negligent treatment or, if later, within one year from the date the injured person discovered or reasonably should have discovered the facts that give rise to the medical malpractice claim. There are exceptions to this rule and we will advise you as to when the time limit will likely expire based on the specific facts of your case.
If the negligent medical care has caused the death, the wrongful death statute in Washington gives the victim’s family, represented by the Personal Representative of the estate, three years from the date of the victim’s death within which to file a lawsuit. If, however, a person has a potential medical negligence claim and then dies from an unrelated cause, the Personal Representative and family may still be able to file a medical malpractice case on behalf of the deceased’s estate but the time limits for doing so may be less than 3 years from the date of death, depending on the facts and circumstances of the case.
Given that there are time limits, if you believe that you may have a case, you should proceed with an evaluation sooner rather than later so that you do not run out of time.
Medical Malpractice in Oregon: In Oregon, a medical malpractice claim must be brought within two years of the date that the injured person discovered or reasonably should have discovered the facts that give rise to the claim. There are exceptions to this rule, and we will advise you as to when the time limit will likely expire based on the specific facts of your case. Given that there are time limits, if you believe that you may have a case, you should proceed with an evaluation sooner rather than later, so that you do not run out of time.
Most Oregon wrongful death actions must be filed within three years from the date the injury occurred that resulted in the person’s death, as opposed to three years from the date of death. There are however exceptions to this and we will advise you as to the likely statute of limitations on your case based on the specific facts.
Given that there are time limits for filing a lawsuit in all medical malpractice cases,, you should consult with an attorney and proceed with a case evaluation sooner rather than later so that you do not run out of time.