Medical malpractice cases almost always require medical experts to testify about the proper standard of care that should have been provided under the circumstances. These are often physicians who practice within the same type of medicine that the physician defendant practices in. These individuals are usually tasked with the responsibility of explaining that the defendant deviated from the standard of care and that this deviation resulted in the patient suffering the harm alleged in the complaint.
In a malpractice (medical negligence) case, you first must establish that the medical professional(s) acted below the standard of care. That can usually only be established through expert testimony willing to say that the doctor who treated you was negligent by falling below the standard of care. Secondly, you must establish that the negligence was the cause of harm. (This is called "causation.") In other words, if the condition is something that he would have had to deal with anyway, or if the condition is something that you and the medical staff could have reasonably expected, the defense will say that the negligence, if any, didn't cause the future issues. The third point is the issue of damages. If the negligence caused you to incur expenses, those would be your "special damages" and for any loss of income your mom contributed to your household. You are also generally entitled to recover for the loss of "care, comfort and society" of the departed.
While most people may immediately think of a formal lawsuit when they consider seeking compensation for injuries caused by medical negligence, the fact is that in some situations, avoiding the expense and potential uncertainty of a formal lawsuit may result in a more favorable outcome. Others simply want to avoid "suing their doctor", but want to get compensation for their injuries. Read on to learn more about the options for resolving your medical malpractice case outside of the traditional court setting.
This is probably the number one reason why you don’t want to sue your doctor. While it is true that most lawsuits can take some time to become resolved, it is well worth the wait. However, there are ways to speed up the process: file your lawsuit as soon as it is determined that the case has merit and make sure that the court imposes deadlines for every step of the lawsuit, such as specific dates for depositions, defense medical examinations, and the exchange of discovery responses. This will prevent the lawsuit from the inevitable delays presented by defense attorneys and their insurers and keep the case on the proverbial “fast track” to trial.
Under NO circumstances is your doctor allowed to leak, alter, or otherwise use your medical information against you in retaliation for filing a malpractice lawsuit. There are severe criminal, civil, and judicial penalties for taking such illegal actions. For engaging in an act such as altering your medical records, your doctor could face anywhere from criminal fraud charges to the loss of his medical license.
Putting a dollar amount on suffering is difficult for every party involved in a lawsuit. Some attorneys estimate pain and suffering damages using a formula based on the total of the other compensatory damages: compensatory damages x (a number from 3 - 10) – compensatory damages. The number you multiply by depends on the severity of the injury. For example, a minor injury would be a “3,” paralysis would be a “10.”
When a person is on the verge of suing someone for medical misdiagnosis, he or she needs to get the opinions from other doctors about the standard procedures and find out where the doctor, who is being sued, failed to conduct before giving the patient’s diagnosis. If the court will see that there was an occurrence of a medical misdiagnosis, then you can recover a considerable sum for going through the effects of a misdiagnosis.
Medical malpractice cases can be timely and costly, which is why most such cases are settled out of court. In addition, because medical malpractice insurance companies reject a significantly large portion of medical malpractice claims, it may be in your best interest to settle out-of-court or risk having no case at all. Keep in mind, however, that if you believe you have a strong case, then you should seek a larger settlement.
For example, a man goes to the hospital for a routine hernia repair but still has pain and a burning sensation at the the incision site, long after it has healed. He’s unable to eat and suffers from severe abdominal pain, but no amount of medicine or antibiotics helps. A year later, the man is in such pain that he goes to the emergency room, he tells the emergency room doctor about the pain, the futility of the antibiotics, and how this all occurred shortly after his hernia surgery. The doctor orders an x-ray which shows that a piece of surgical gauze was left in the man’s abdomen from his hernia surgery. When it was removed, it was black with mold, which is why the antibiotics didn’t work.
You can file a complaint with the College of Physicians and Surgeons of BC. There is no time limit for complaining to the College. And you can do this at the same time as you sue for malpractice and contact the police if you think you were assaulted. But the College cannot order a doctor to pay you money—only a court can do that. Script 423, called “Making a Complaint against Your Doctor” explains how to file a complaint. Contact the College through its website or call it at 604.733.7758 in Vancouver and 1.800.461.3008 elsewhere in BC.
Suing a hospital for misdiagnosis is dependent on whether the doctor is an employee of the hospital. A hospital is liable for all damage committed by their employees once the employee is performing his/her duties. The principle of employer’s liability states that any act or omission by the employee in the course of their employment which causes loss, damage or suffering can be attributed to the employer. Therefore, once the doctor was an employee of the hospital then all his/her acts or omissions are attributed to the hospital. However, if the doctor was an independent contractor of the hospital that is where the hospital does not have any control in how the doctor carries out his functions but the doctor’s only responsibility is that he ought to perform the duties under his contract at the standard required; then the hospital is not liable. Where the doctor sets his own fees and work hours then he is not an employee.
We have had multiple lawyers look at the case. All of them have told us that while they believe mistakes were made, it would cost too much to prosecute the case to be worth it. Since he was 25, single and childless, there are no financial losses; no one who was depending on his paycheck. All we really want is answers and assurances that something has been done within the hospital to prevent similar mistakes from occurring again.
In my experience, many problems that spiral out of control could have been tackled sooner. You may have been kept waiting a long time for your hospital appointment, or a member of staff was rude to you. Perhaps you felt an elderly relative wasn’t getting adequate pain relief, or even enough to drink. In these circumstances, do as you would in any restaurant when you aren’t happy: ask to speak to a manager.
“There are no easy answers, but there are a number of practical steps that can bring stability to an ailing industry,” he says. “In my view, mediation is one of the best options we have available to us and it should be promoted and embraced (by plaintiffs and defendants) more widely. Mediation is inherently a process of reconciliation as opposed to litigation, which is adversarial (and unpleasant).
If you don't have a record of your physical symptoms that relate to your emotional distress, you may still have a case. It will be a lot tougher to prove that your issues are directly connected to the incident in question. Severe emotional distress like prolonged extreme social anxiety or paranoia may be enough to collect damages.  If you don't have proof of related physical symptoms, talk to a lawyer. You can ask if you have a case. 
In conclusion, my answer to your question would be, you can approach the Consumer Forum, where you don’t have to pay any Court Fee on your claim, and you may win the case with substantial evidence on your side. For the degree of evidence that is required to win a claim of Medical Negligence see the explanation above. Whether you have winning stuff in your case or not, can be best diagnosed by a independent, equally qualified Doctor, and not a lawyer. Approach a doctor first, and then with his opinion, approach a lawyer or directly the Consumer Forum of your district.
The standard of care—this varies with the level of specialty of the doctor—the standard may be higher for specialists. And it varies with time—today’s standard may not be good enough next year. You can’t always expect the best care available at the most sophisticated research hospital. The standard of care may be affected by the level of hospital that treats you.
“I was very fortunate to have Richard Jaffe of Law Office of Cohen & Jaffe, LLP, represent me in my case. Throughout the entire process, Rich was professional, always explaining every detail of my case. He was available whether it was through a phone call, text or email. Not only was Rich an extreme professional but he also kept it personal, not making me feel like a case number. I would highly recommend Richard Jaffe, his firm and all of his staff to anyone seeking diligent and professional results.”
Indeed, even the standard jury instruction does not provide the jurors with guidance in determining a figure. Abstract concepts, ambiguity and confusion are all defense tactics utilized by defense attorneys to dismantle your viable personal injury claim. This is why it becomes critical to open up to your attorney about the extent of your injuries and the complete impact that your injuries have had on your life.
Medical malpractice insurance carriers generally require very large deductibles from their insured doctors. Furthermore, most states have laws that require doctors to report any claims of medical malpractice to a state-run board, which can result in higher insurance rates. Doctors may be willing to settle for an amount at or around the amount of their deductible, as it will abrogate the need for them to report the case. They are simply choosing to pay you the amount of the deductible instead of paying the insurance company. Seek counsel before accepting this type of settlement, as you need to be sure your future medical needs will be provided for.
The doctor's negligence caused the injury. Because many malpractice cases involve patients that were already sick or injured, there is often a question of whether what the doctor did, negligent or not, actually caused the harm. For example, if a patient dies after treatment for lung cancer, and the doctor did do something negligent, it could be hard to prove that the doctor's negligence caused the death rather than the cancer. The patient must show that it is "more likely than not" that the doctor's incompetence directly caused the injury. Usually, the patient must have a medical expert testify that the doctor's negligence caused the injury.