If you have been harmed by medical malpractice and want to hold the doctor or nurse legally accountable for the injuries you have sustained, then this blog post is for you. This blog post is to serve as a general guide for a patient or family member who is a victim of medical malpractice under the laws, customs, and practices in South Carolina. In situations of medical malpractice, there are usually many questions, but no answers or resources or places or people to turn to for help, assistance, and guidance in the aftermath of medical error or malpractice. I am writing this article based upon my experience in representing people in South Carolina courts for claims of medical malpractice under South Carolina law. So if you are reading this to find out about medical malpractice in states other than South Carolina, then please read no further.
To begin with, there are plenty of questions for an injured patient and his or her family. In fact, sometimes it is a mystery as to what happened. Doctors and nurses usually do not admit to their patients that there has been medical malpractice. In fact, doctors and nurses usually do not believe they did anything wrong even when the patient has been injured. So an investigation needs to be performed. The investigation, usually done by a medical malpractice lawyer who you have retained, involves gathering and reading medical records, performing medical literature searches, and consulting with medical experts.
Some common patient questions in medical malpractice cases are: Was I a victim of medical malpractice? Do I have a case? How expensive is a medical malpractice case to bring? How much are attorney’s fees? How do I find out or determine if my doctor committed medical malpractice against me? How long will my case take? Will I go to court or will my case get settled? Will I have to pay out of pocket for anything in my medical malpractice case?
It’s difficult for a patient to know whether the patient is a victim of medical malpractice. If you believe, even in the slightest, that you have been harmed because of a careless doctor, nurse, or other medical professional, then trust your gut or your instinct and reach out to a medical malpractice attorney who can help you. An attorney can help you answer your questions and help you understand if you have a good case against the medical professional.
To begin with, let’s consider this question: what is “medical malpractice”? What is “medical negligence”? Medical malpractice and medical negligence mean the same thing; they are two terms to describe the same thing: a doctor, nurse or other medical professional has failed to act like a reasonable medical professional and caused patient harm.
The next important question is: what is the medical “standard of care”? The standard of care is a rule that a reasonable, competent medical provider must follow in a given medical situation. If the medical provider has violated the standard of care, or has fallen below the standard of care, then that is evidence that the medical professional has committed medical malpractice/negligence.
Some examples of common injuries or occurrences that may result from medical malpractice:
Injury during surgery
Wrong site surgery
Wrong medication or dosage
Failure to diagnose an illness
Failure to treat or prevent a stroke or
Misdiagnosis of an illness or condition
Birth injury – hypoxic ischemic encephalopathy
Leaving behind a sponge or surgical instrument in a patient
Failure to treat a condition
Failure to recognize a condition, sickness, or illness in a patient
Injury to the bowel or intestine during surgery
Failure to recognize or diagnose a blood clot in the lung or elsewhere
Failure to recognize or diagnose appendicitis
Sudden death occurring at a hospital
Failure to treat compartment syndrome
So your lawyer will begin your case by asking and trying to answer the question did the medical professional violate the medical standard of care and was therefore guilty of medical malpractice.
What should I do if I am a victim of a medical malpractice?
First set up a free consultation with a medical malpractice attorney. You should reach out to a medical malpractice attorney quickly. Your lawyer will conduct an investigation into your case. But an investigation takes time. If you wait, you may not leave your lawyer enough time to investigate your potential case!
What should I do before I meet with a medical malpractice lawyer?
Before you meet with the medical malpractice lawyer, you may want to obtain at least some of your medical records. Any records from the doctor’s office would be helpful. Also, you should ask the hospital for your medical records. You will want to obtain records such as: operative reports, triage or Emergency Room Records, lab tests results, Consultation Notes, Admission records, diagnostic tests such as CT Scan, MRI, or Xray reports, and hospital Discharge report. These records will help your attorney understand your case quicker and will help the attorney give you a quicker idea of whether you have a medical malpractice case that needs to be looked into further. Your attorney, if he decides to take your medical malpractice case, will order a complete set of your medical records.
Next steps. At your meeting with the medical malpractice attorney, you will discuss with the attorney whether the attorney feels like you have a case, or whether the case needs to be investigated further. You and the lawyer can agree on what steps to take next. Your lawyer may begin a full investigation or he may ask you to obtain some more records before the attorney agrees to undertake formal representation.
Some considerations in deciding whether you have a case:
What were your injuries and what is the nature, extent, and duration of those injuries? Are your injuries permanent or only temporary? Were your injuries serious or minimal?
How difficult will it be to prove your case? Your lawyer will help you answer that question.
Will the expenses of the case outweigh any potential recovery? Your lawyer will advise you about that issue as well.
Attorney Fees. Most medical malpractice lawyers will take your case on a contingency fee, meaning that the lawyer is paid a percentage of the total recovery, whether by settlement or verdict from a jury. If there is no recovery, then you owe your lawyer nothing. The lawyer’s fee is “contingent” upon there being a recovery on your behalf. The percentage can range from 33.3% on the low end to 50% on the high end.
Case expenses. Investigating and bringing a medical malpractice case is not free. In fact medical malpractice cases are very expensive. There are many costs associated with your medical malpractice case such as, medical records, reports, expert witness fees, deposition costs, travel costs, and court costs. Your lawyer may request for you to advance some of the costs or your lawyer may agree to advance all of the costs. Many medical malpractice lawyers will agree to advance all of the costs of the case and then will be reimbursed out of the recovery, if any, for the costs advanced or incurred. So in addition to paying your lawyer his fee, you will also have to repay your lawyer out of the recovery for the costs that the lawyer incurred or advanced in pursuing your case. So its usually a fee plus costs arrangement.
Expert Witnesses. Almost all medical malpractice cases require expert witnesses to testify. In South Carolina, to begin a medical malpractice case, the plaintiff must file an affidavit from an expert stating at least one instance of negligence by a medical provider. From there, almost all medical malpractice cases will require testimony from an expert witness to state and establish the standard of care and that the medical provider in your case in fact violated the standard of care. Also, a medical expert witness is usually called upon to opine on whether the injuries sustained were caused by medical malpractice. Expert witnesses are costly and are part of the case costs.
Will your case settle or go to trial? The answer to that question varies in each case. Some cases settle and some cases go to trial. You lawyer can give you more tailored, specific advice about whether your case is one that will settle or whether it will have to go to trial.
What is the value of my medical malpractice case? Again, this question is unique to each case. Some medical malpractice cases are worth more than others, depending upon the nature, extent, and duration of the injuries coupled with the ease or difficulty of establishing liability.
What damages am I allowed to claim? In short, all the damages the law allows, including, compensation for a second do over surgery, lost wages, pain, suffering, permanent impairment, loss of enjoyment of life, inconvenience, disability, scarring, and future medical costs, if any. Each case is different in this regard, and the damages allowed to be claimed depend upon the evidence in each case.
How long will my case take? Again it varies-it can be a few months or it can be years. Once your case is filed with the court, in South Carolina it usually takes anywhere from ten months to eighteen months for it to be resolved either through a settlement or through trial. Some medical malpractice cases do not have to be filed with the court and can be resolved without formal litigation.
Who pays the settlement or verdict? If you successfully settle your medical malpractice case or win at trial, the recovery is usually paid for by the doctor’s or hospital’s insurance company. Some hospitals are big enough that they set aside money in a fund to pay claims, settlements, or verdicts they lose and do not require insurance.
Are there limitations or caps on monetary damages that a jury can award in South Carolina medical malpractice cases? Yes. Under South Carolina law, there is a limit to amount for non-economic damages, such as pain and suffering. Also, if the hospital is a public or governmental hospital, the South Carolina Torts Claims Act places limits on the amounts that can be recovered. Furthermore, there are limits on how much a charitable hospital has to pay as well.
What is mediation? Mediation is a process that the parties go through to try and settle the case. In Greenville County, mediation is required in all cases, including medical malpractice cases. The parties usually agree on a mediator, who most times is a lawyer, who is wholly independent. Mediation is usually held at the mediator’s office in conference rooms there. The role of the mediator is to facilitate settlement discussions. The mediator does not decide the case. If a case is not settled at mediation, then it can go to trial after mediation.
What is Pre-suit mediation? In medical malpractice cases, the parties are required by South Carolina law to go through a pre-suit mediation process. The plaintiff will file a notice with the Court and once the defendants are notified, the parties set pre-suit mediation. If the case is resolved in pre-suit mediation, then the case is over and a formal lawsuit is never filed. If the case is not settled in pre-suit mediation, then the plaintiffs can file a formal lawsuit.