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Do I Have a Medical Malpractice Case?

This article seeks to educate its reader about medical malpractice cases, including the applicable statute of limitations, the standard of care and damages.

What is Medical Malpractice?

Medical Malpractice is also known as medical negligence. It is a type of lawsuit, filed in civil court, where a person seeks to be compensated for personal injury or death caused by the act of a medical professional in the course of treating a patient. A medical professional can be a doctor, surgeon, nurse, or other professional who cares for patients in a medical setting. (This list is not all-inclusive.) The case can be brought by, or on behalf of the injured person, or on behalf of a deceased person's estate. The person or entity who files a civil lawsuit in court is called a plaintiff.

When Should a Medical Negligence Case be Filed?

With limited exception, a lawsuit based upon medical negligence must be filed with the court within two years of the date of the negligent act. see 18 Del. C. §6856. For children, age 6 and under, the time period is extended, and the lawsuit must be filed within 2 years, or by the time the child is 6 years old, whichever is later. Id. This period of time is called the Statute of Limitations. Once the Statute of Limitations has passed, or the time period designated by statute is over, a lawsuit cannot be brought by, or on behalf of, the injured or deceased person.

What is an Affidavit of Merit?

An Affidavit of Merit is required by statute in medical negligence cases. see 18 Del. C. §6853. It is a notarized statement signed by a medical professional whose qualifications meet the standards identified in the statute and who is considered to be an expert in his/her field. The expert must have the same, or similar, qualifications as the defendant medical professional. That expert must state that "there are reasonable grounds to believe that there has been health-care medical negligence committed by each named defendant." Id. With limited exceptions, the Affidavit of Merit must be filed with the Complaint, which is the first document filed in a lawsuit. Id. If the Affidavit of Merit is not filed, or does not comply with the statute, the case may be dismissed by the court.

What is the Standard of Care?

To prove a medical negligence case, the plaintiff must prove by a preponderance of the evidence that the medical professional deviated from the standard of care and the plaintiff was injured as a result of that deviation. The standard of care is a fact intensive standard imposed upon the medical professional that depends upon the type of procedure being performed, the environment in which it is being performed, and the professional's training and credentials, among other factors. Medical experts testify to help a jury understand what the standard of care is, and whether there was a deviation from that standard.

What are Damages?

"Damages" is a broad legal term that includes all bodily, economic and emotional injuries that would not have occurred but for the medical professional's deviation from the standard of care.

For example, in a case where a patient was supposed to have his left leg amputated, but instead the surgeon accidentally removed the right leg, the loss of use of his right leg would be bodily injury that resulted from the surgeon's deviation from the standard of care which, in this fictitious example, required the surgeon to confirm that he was removing the correct leg before performing the amputation. The plaintiff may also be permitted to present evidence of medical bills incurred as a result of the wrongful amputation, the monetary cost of time out of work (lost wages), the cost of medical devices (such as prosthetics), the cost of anticipated future medical care related to the wrongful amputation, and any other costs incurred that are causally related to the deviation. The plaintiff may also be permitted to present evidence of the human consequences he faced as a result of the wrongful amputation, including his experience in undergoing an unnecessary amputation surgery and its emotional effects.

Evidence of damages is presented to and taken into consideration by a jury when its members decide whether to, and what amount of money, to award to a plaintiff at the end of the trial. 

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