Your Washington, D.C. Medical Malpractice Case: The Basics
You signed a release form before your appendectomy, but there's no excuse for forgetting about the surgical sponge in your abdomen. Now you lay in a D.C. hospital cot while busybody nurses keep you under 24-hour supervision. Your family is worried sick, you can't even walk without assistance and no one can answer a simple question, "who is going to pay for this?" Medical malpractice law is more complicated than you'd think, which is why FindLaw has created this outline of how Washington D.C. medical malpractice cases work.
Every lawsuit has a ticking clock counting down the time until your claim becomes stale. This is called the statute of limitations, and once time has expired you will forever be barred from bringing a claim regardless of its strength. The time period varies by state and by claim type, but the Washington D.C. statute of limitations provides three years from the date the patient discovered, or should have discovered through reasonable inquiry, the injury. However, for minors, the limitations period won't start running until the patient's 18th birthday. Finally, wrongful death cases must be filed within two years from the date of death.
Notice of Intent
A plaintiff who wants to bring a medical malpractice action must notify the defendant within 90 days prior to filing the action. Notice may be delivered at the last known address registered to the defendant. The court may forgive a failure to give notice on time if a plaintiff shows they made a good faith effort to provide the required notice. The notice should include information about the legal basis for the claim, the type and extent of the loss suffered, and include information about the injury.
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Technical rules like the statute of limitations or the required notice of intent highlight some of the value an experienced medical malpractice lawyer may bring to a case. Many personal injury lawyers work on a contingency fee basis, which means they are paid a portion of the injured party's recovery. Yes, that means they don't get paid until they win or settle a case.
Medical malpractice cases are essentially negligence cases where the defendant is a medical professional. Medical malpractice liability can come from the doctor's failure to diagnose the patient correctly, an unreasonable delay in treatment, or improperly treating the patient. To find a medical professional negligent, it must be shown that his or her conduct fell below a generally accepted standard of medical care, and that this failure caused the injuries at issue.
While everyone is held to a reasonable standard of care as they go about their daily business, doctors are expected to meet a much higher standard than the average person. In general, doctors must recommend and perform treatment as a reasonably competent and skilled health care professional, with a similar background and in the same medical community, would have provided under the circumstances that led to the alleged malpractice.
The key to a successful case often comes down to proving to the judge or jury exactly what the expected standard of care was under the circumstances, and how a defendant failed to live up to that standard. This means the testimony of an expert witness in the specific medical field is often required to win a case. Topics they touch upon include:
- the applicable standard of care;
- how the defendant failed to meet that standard of care; and
- the relationship between that failure and your injury.
Just as you cannot go around sticking knives in other people, a doctor must receive consent from his patients before performing any potentially harmful surgery or treatment options, or else risk a lawsuit for battery.
Specifically, a physician must tell a patient all of the potential benefits, risks, and alternatives involved in any surgical procedure, medical procedure, or other course of treatment, and must obtain the patient's "informed consent" to proceed. There are three general components to informed consent:
- a disclosure informing the patient all the risks, benefits and alternatives of the treatment;
- understanding of the disclosure by the patient, and;
- a voluntary (non-coerced) waiver or "release," executed by the patient.
You can bring a lawsuit against the negligent heath care professional, of course, but you can also bring an action against the professional's employer under the vicarious liability rule known by the term "respondeat superior." This generally means that an employer is responsible for the careless (negligent) action of an employee acting within the scope of his or her employment.
A hospital can also be sued independently under the "corporate negligence" doctrine. For example, the hospital may fail to maintain sanitary conditions, fail to screen employees for proper credentials, or improperly discharge a patient.
One may also have a product liability lawsuit against a pharmaceutical company that created a medicine with unreasonably dangerous side effects that they were not made aware of, or against a company that designed or manufactured a defective medical device.
Your recovery in medical malpractice cases will include economic and non-economic damages. Economic damages are easily quantifiable financial burdens associated with the injury, such as medical bills or loss of income from inability to work. There is no upper limit to the amount of economic damages you may recover.
Non-economic damages are sometimes called "pain and suffering" damages because they are designed to compensate you for the mental and physical distress you suffer as a result of your injury. They include compensation for your pain and suffering, lost enjoyment of life, anxiety, disfigurement, and other effects of the defendant's medical negligence. Significantly, Washington D.C. is one of the few places in the United States that has no upper limit, or damages cap, for non-economic damages in medical malpractice cases.
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