Question 1

What is medical malpractice?

Accepted Answer

Medical malpractice is negligence by a healthcare provider. A healthcare provider either did something incorrectly or didn’t do something that should have been done. This is referred to as a “breach of the standard of care.” The standard of care is what a “reasonable” provider would have done under similar circumstances. This breach - negligence, that is - must also have caused you to be worse off than you otherwise would have been had there been no negligence.

Question 2

How is a medical malpractice case different from a regular negligence case?

Accepted Answer

In medical malpractice cases, proving a breach of the standard of care (the negligence) almost always requires expert testimony. Showing that the negligence caused a harm or death also usually requires expert testimony. In addition, it’s important to note that the healthcare provider did not cause the underlying medical condition, so the issue is not what harm the original disease or injury caused. The issue is how the negative outcome was made worse by what a healthcare provider did or did not do. If the malpractice did not result in the patient having a worse outcome, he or she may not have a viable claim.

Question 3

How does your firm determine whether you will take a case?

Accepted Answer

After you contact us, and if we decide that we would like additional information, we will ask you to send us records relating to your medical care. You will likely have to get these from the hospital or clinic, but we can provide information about how to do this. Once we have reviewed the medical records and have talked with you, we will decide whether we can pursue a case. Sometimes we will need to have a doctor review the material and give us his or her opinions about the case. If we decide to take the case, we will send you a retainer agreement. You will never owe us a fee for reviewing a case, even if we decide not to take it.

Question 4

What kind of fees does your firm charge?

Accepted Answer

We almost always charge a contingent fee, meaning we get no fee unless we obtain a recovery. The contingent fee we charge does vary from case to case depending on a number of factors, but it is usually a percentage of the total amount of any recovery.

Question 5

If a case is settled or you win at trial, how much money will I get?"

Accepted Answer

You will get the net portion of the recovery amount after the contingent fee and costs are subtracted. If there are medical or other liens, such as those owed to Medicare or Medicaid, those may also have to be subtracted.

Question 6

What kind of situations make for successful medical malpractice cases?

Accepted Answer

It is almost impossible to answer this question simply. We look for situations where there is a compelling argument that the conduct of a healthcare provider was negligent, and the damages are significant. Frequently, we see situations where the care was very poor, and a disastrous outcome could have occurred, but it did not. The fact that bad medical care “almost” killed someone does not typically make for a strong medical malpractice case.

Question 7

What if medical malpractice has caused the death of a family member?

Accepted Answer

In Virginia, a case for wrongful death must be brought by the “personal representative” of the estate of the person who died. This means that an administrator of the estate must be appointed by the court. We can provide information about how to do this if an administrator has not already been appointed.

Question 8

Why are expert witnesses needed?

Accepted Answer

Quite simply, medical issues are often incredibly complex. Courts and juries need the assistance of experts who can explain these matters. The law requires that to support a claim of medical malpractice, a plaintiff must have appropriate expert testimony to support his or her case.

Question 9

Are there time limits for filing suits?

Accepted Answer

Yes, and if a case is not brought within the applicable limit, it will almost certainly be dismissed. The limits vary depending on the particular circumstances of a case. Determining what limit applies and when the clock started running is not simple. This is why it is critical that you consult a lawyer as soon as you think you might have a medical malpractice case.

Question 10

Where do you file a lawsuit?

Accepted Answer

Usually, a suit is filed where the treatment took place or where the defendant works or resides.

Question 11

What will I have to do if a lawsuit is filed on my behalf?

Accepted Answer

Both before and after a lawsuit is filed, the most important thing you can do is to be available and cooperate with us in assembling and prosecuting your case. You will likely have your deposition taken. A deposition is when the lawyer for the defendant has the chance to question you under oath. Of course, we will prepare you for your deposition and we will be there with you. If a case goes to trial, you will need to be there with us in court for each day of the trial.

Question 12

Do most cases settle out of court?

Accepted Answer

The short answer is yes. However, especially at the start, it is hard to predict which cases will be settled and which are likely to go to trial. It’s important that all cases get worked up as if they will go to trial. In fact, cases prosecuted from the start with a focus on being ready for trial generally result in better settlements.

Question 13

What happens if a case goes to trial?

Accepted Answer

Trials often take four or five days. They are intense with many moving parts. The central focus will be to persuade the jury. A jury is seven people chosen at random from the community. Among other things, juries are instructed to use their common sense. Common sense is why most juries most of the time come to the right conclusion.

Question 14

If a case is lost at trial, can it be appealed?"

Accepted Answer

In theory, yes. However, an appeal only considers narrow questions of whether the judge made incorrect rulings. An appeal does not reconsider the facts of a case. As a practical matter, if a case is lost at trial, the odds of reversing that loss on appeal are not high.

Question 15

What are litigation costs and how does your firm handle them?

Accepted Answer

Litigation costs are the costs associated with taking the case to trial. Generally, these include filing fees, expert reviews, expert witness testimony, court reporter fees, and other costs associated with the litigation process. We almost always pay these costs as the case progresses. This is often referred to as “advancing” costs. When a case is settled or a judgment is paid, those costs are paid back to us when the funds are received.

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