Frequently Asked Questions About Medical Malpractice Law
What is medical malpractice?
The phrase “medical malpractice” developed from the phrase “practice of medicine.” The prefix “mal-” means bad. So, we add “mal-” to the start of the word “practice”, flip things around a bit, and we end up with a phrase that essentially means the bad practice of medicine. You will sometimes hear the phrase shortened to “med-mal.”
Legally, medical malpractice describes a negligence claim asserted against a medical professional or facility. The medical professional is often a doctor, but a medical malpractice claim can also be asserted against a nurse, a physician assistant (“PA”) or another medical professional. A medical malpractice claim can also be filed against a medical facility, such as a clinic or hospital.
All medical professionals are required to meet the “standard of care.” This is another phrase that can be confusing. It simply refers to the level of care medical professionals and facilities must provide to their patients.
Medical professionals have a duty to act with such reasonable care and skill as is exercised by an ordinary physician of good standing under like circumstances. If a medical professional fails to act with reasonable care and skill, then they are said to have “breached” the standard of care.
The doctor made a mistake and breached the standard of care – is this enough to file a medical malpractice case?
No, it is not enough. Proving the standard of care, and proving the defendant (e.g. doctor) breached the standard of care, are only the first two steps in proving a medical malpractice claim. In order to be successful, a person bringing a medical malpractice claim – the “plaintiff” – must prove all of the following:
- The applicable standard of care
- A violation of the standard of care
- A causal relationship between the violation and the harm allegedly suffered by the plaintiff
It can often be difficult to prove the “causal connection” element. For example, imagine a doctor failed to timely diagnose cancer and ultimately reached a diagnosis four months late. We may be able to prove a breach in the standard of care, but it can be difficult to prove a diagnosis received four months sooner would have changed the outcome for the patient. This illustrates how a breach in the standard of care does not always equal a successful medical malpractice case.
What damages can I claim in a medical malpractice case?
The answer is both simple and complex. Generally, a person can seek compensation for the following damages caused by the medical malpractice:
- Past and future pain and suffering
- Past and future lost use of full body and mind
- Past lost wages or time from a business
- Future loss of earning capacity
- Certain medical expenses
However, this simple generalization can quickly become complex. The facts of your case will affect what damages are recoverable.
Additionally, Iowa has several rules and statutes applicable to medical malpractice cases which will affect what damages are recoverable in a case. For example, a plaintiff’s damages may be limited by Iowa Code §147.136. This code section limits recovery of economic damages (medical expenses, lost wages, etc.) that have been replaced by certain “collateral sources.”
The classic example is health insurance. If your health insurance plan pays for medical expenses caused by medical negligence, you may not be able to recover those medical expenses in your lawsuit.
When talking about recoverable damages, family members may be entitled to assert loss of consortium claims.
What is loss of consortium?
The term “consortium” generally refers to a family member’s (e.g., spouse, child, parent) rights to:
- Intangible benefits of companionship, comfort, guidance, affection and aid
- Tangible benefits of usefulness, industry and attention within the home and family
If an injury diminishes or ends a family member’s ability to provide these benefits, the non-injured or surviving family member is said to have suffered a loss of consortium which can be compensable depending on the facts of the case.
What happens if the medical negligence resulted in death?
Iowa law allows wrongful death actions premised on medical negligence. The case will need to be brought by the personal representative of the estate of the deceased.
In general, it is sufficient to say the estate will assert all claims arising from the death. The estate will be entitled to claim certain damages, including lost accumulation of the decedent’s estate caused by the premature death and funeral expenses. The estate will also assert damage claims that could have been asserted by the decedent had he or she lived. For example, pre-death pain and suffering can be claimed.
Finally, the estate will usually be responsible for asserting the loss of consortium claims held by surviving family members. such as a spouse, child or parent.
What are my first steps if I think I have a medical malpractice case?
The first step is to reach out to an experienced medical malpractice attorney. This should be done sooner rather than later due to the statute of limitations (see more below).
Our office offers free consultations. With a phone call and a basic understanding of the facts, we can often quickly determine whether you have a meritorious medical malpractice case. However, we usually cannot say “Yes, you have a case.” As discussed below, that indication must come from an expert qualified to criticize a medical professional.
If we think there may be a valid medical malpractice case, the next step is usually to review the relevant medical records. The records can usually be collected by the patient or surviving family, but sometimes our office will need to assist, particularly when a death is involved. Our attorneys will then review the records to assess the likely merit of the case.
If we still think there is a case, the next step will be to have the matter reviewed by medical experts. This can definitively state whether there is a valid medical malpractice case or not. With proper expert support, the case can then proceed to litigation.
Do I have to hire experts to help with my case?
Expert testimony is almost always necessary to prove each element of a medical malpractice case. The standard of care, whether a doctor breached the standard of care, and how that breach injured a patient, is usually beyond the knowledge of anyone without the proper training and credentials, according to the courts.
Put simply, we need a doctor to testify how another doctor made an unreasonable mistake. As a result, medical negligence cases almost always require us to hire an expert – and often numerous experts – to help prove your case.
Two narrow exceptions exist where the plaintiff may prove a physician’s negligence without expert testimony. The first is through evidence showing the physician’s lack of care is so obvious to be within the understanding of a lay person. The second, an extension of the first, is through evidence the physician injured a body part not involved in the treatment. These cases are definitely the exception to the rule, though.
How should I select a medical malpractice attorney?
There is not a right or wrong way to select a medical malpractice attorney. However, you should choose an attorney and firm that you trust. Throughout the litigation process, there will be many difficult conversations and decisions. You need to be comfortable relying on your attorney for guidance and direction.
You should also choose an attorney and firm with extensive experience handling medical negligence claims. Medical malpractice cases are extremely difficult given the complexity of the topic.
Furthermore, Iowans generally trust the medical profession. People on the jury are likely to start with a healthy skepticism of any injured person.
Moreover, you want an experienced attorney familiar with handling medical malpractice cases because the process is full of procedural traps for the inexperienced. Iowa’s laws are generally favorable to doctors and set up hurdles that plaintiffs must cross along the way. Failure to clear a procedural hurdle (e.g., timely naming your experts) usually results in a plaintiffs’ case being dismissed with prejudice. This means the case is gone and cannot be refiled.
How long does it take to complete a medical malpractice case?
It will likely take 2-3 years to get from the start of a medical malpractice lawsuit all the way to trial. This is consistent with the case processing time standards set by the Iowa Supreme Court.
However, you may be working with your attorney much longer or less than 2-3 years. The case may take longer if a pre-lawsuit case review is considered. The case may also take longer if the court grants a continuance for some unforeseen reason, or if the matter is appealed.
The case may be less than 2-3 years if a fair settlement can be reached early in the process.
Are there time limits with filing a medical malpractice case? Is it ever too late to sue a doctor or hospital?
Yes, there are time limits to filing a medical malpractice case. It is possible to wait too long to take legal action.
If you are an adult, you generally must file a medical malpractice lawsuit within two years of the date you knew, or through the use of reasonable diligence should have known, of your injury and its cause. This time limitation is known as the statute of limitations.
In many cases, the statute of limitations is a simple calculation. However, in other cases, applying the statute of limitations can be a difficult task. When did you know of your injury? When should you have known? Did you learn of the cause at the same time you learned of the injury? Many of these questions may need to be resolved by a judge or jury.
The statute of limitations is different for minors under the age of eight when the medical negligence occurred. For these individuals, medical negligence claims generally must be filed no later than the minor’s tenth birthday.
In addition to the statute of limitations, there is a law known as the statute of repose. That law generally states that you cannot sue a doctor more than six years after the alleged negligence. There are exceptions (e.g., a foreign object left in the body), but it is not easy to avoid this six-year limit.
These rules have nuance and exceptions, but for the most part, timely prosecution of your medical malpractice claim is mandatory. For this reason, you should not delay in contacting an experienced medical malpractice attorney if you think you have a case.
Schedule A Free Consultation To Get All Of Your Questions Answered
If you have further questions about medical malpractice law, or if you believe you have a case, we invite you to call 515-644-6133 or send our team an email to schedule your free consultation in our West Des Moines office.