Medical Malpractice

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by Futeral & Nelson, LLC | Personal Injury Claims in Charleston, South Carolina

Medical Malpractice ▪ Charleston Injury Attorneys

What is medical malpractice in South Carolina?

Medical malpractice occurs when a doctor or other health care provider does not treat a medical condition properly and, as a result, causes a new or aggravated injury to the patient.

What types of medical malpractice cases are there?

Medical malpractice happens in a variety of situations such as:

Delay or failure in diagnosing a disease
Surgical or anesthesia related mishap during an operation
Failure to gain the “informed consent” of the patient for an operation or surgical procedure, i.e., failing to disclose to the patient the risks associated with the procedure
Failing to properly treat the disease process after making a correct diagnosis
Misuse of prescription drugs or a medical device or implant

What is “informed consent”?

Physicians are required to inform their patients of the projected effectiveness of any proposed treatment and the possibility of negative side effects or other adverse outcomes. Thus, before a doctor can perform a procedure, prescribe a drug, or take any significant action, he must get the “informed consent” of the patient.

How do I know if I have a medical malpractice claim?

To determine if there is “medical malpractice,” it is necessary that a medical expert be retained to consult with the plaintiff’s attorney. This expert should be well qualified to give a medical opinion, and is therefore frequently board certified in the relevant field of medicine. If, after a thorough review of the pertinent medical records, the medical expert concludes “with reasonable medical certainty that the action or inaction of the defendant physician was the cause of damage to the plaintiff,” it may then is appropriate to file suit against the health care provider.

How long do I have to bring a lawsuit for malpractice in South Carolina?

South Carolina typically has a three-year statute of limitations in medical negligence cases. However, if the claim is against a governmental facility, then the period is shorter. Generally, this means that the lawsuit must be brought within three years from the date of the conduct that the patient claims caused their injury.

Because patients sometimes cannot know when they have become a victim of medical negligence, some states recognize a “discovery rule” which gives the patient additional time to file suit. South Carolina has a “modified discovery rule.” Under this rule, if a patient discovers the malpractice within three years, they may have only to the end of the three-year period (calculated from the time the negligent act occurred) within which to file suit. If the patient discovers the malpractice more than three years after the negligence occurred, the patient has a “reasonable time” within which to sue. However, this is not to exceed six years. There are some exceptions to this rule, so please confer with your attorney regarding any legal question.

Is a medical malpractice claims are very expensive?

Most medical malpractice attorneys take their cases on a “contingency” basis, where the attorney fee is a percentage of the amount recovered from the defendant through judgment or settlement (usually 33.33% to 40% of the judgment, after costs and fees are deducted). In other words, the client does not pay any attorney fees unless there is a recovery in the case.

Largely due to the cost of hiring medical experts, medical malpractice cases are extremely expensive cases to bring. By the time a case reaches trial, costs alone oftentimes exceed $100,000.00. Therefore, sometimes, even when there is a clear case of medical negligence, a suit may not be appropriate because the cost of litigation will likely exceed the amount of any damages award.

How common are malpractice cases?

Despite insurance propaganda to the contrary, very few patients who are injured by physician negligence actually sue. A 1991 article in the New England Journal of Medicine documented that only about 2% of patients who were injured by physician negligence ever seek compensation through a lawsuit.

What type of results can I expect in my case?

Each case must be evaluated on its merits. Many factors go into case evaluation. These include:

How clear is the defendant’s negligence?
How difficult it is to prove the defendant’s negligence?
What is the nature of the damages?
What kind of witnesses will the plaintiff and health care providers make?
What is the caliber of the attorneys representing the parties?
Where is the venue? (the county in which the case must be filed and tried)
What are the legal issues presented?

What must I prove in my case?

A plaintiff in a negligence case brought against a health care professional must introduce evidence which the court finds sufficient to establish all three of the following:

Negligence
Proximate Cause
Damages

The failure to prove any one of these elements is fatal to the successful prosecution of the case.

“Negligence” is defined as the failure to use ordinary care. Professional negligence is the failure of a health care provider to do something that should have been done in keeping with good and accepted medical or nursing practice or the failure to do something that should have been done in keeping with good and accepted medical or nursing practice.
“Proximate cause” is a legal concept which essentially means a legal cause. The health care provider’s negligence must be such that it did in fact cause the plaintiff’s injuries and that the injury suffered by the patient (or some similar injury) was reasonably foreseeable beforehand as a result of the health care provider’s failure to render appropriate care.
“Damage” is the harm done to the patient that proximately results from the health care provider’s negligence. It is the physical, emotional and financial harm that the plaintiff experienced as a result of the incident.

How do I go about proving these elements?

South Carolina, in virtually all instances, requires proof of medical negligence by way of expert testimony. A jury is not permitted to infer negligence from a bad result. Thus, a physician who is licensed, practicing now or at the time in question, and who is familiar with the standards of good and accepted medical practice for the care in question must testify that the professional standards were not met. Further, the expert physician must testify that the plaintiff’s injuries probably would not have occurred if proper medical practices had been followed and that the defendant health care provider should have reasonably foreseen this or some similar result.

Some damage elements are proved by the testimony of the plaintiff, their family and friends. For example, the presence of physical pain or mental anguish normally comes from lay witnesses. Proof of lost earnings is made by the plaintiff’s testimony and income tax returns or wage records. Past medical expenses are established by the bills and testimony of a medical expert that the charges were reasonable and necessary to treat the condition. Some elements of damage, such as future disability and medical expense, may require the testimony of an expert witness.

What kinds of things can I recover damages for?

In a malpractice injury case there are two broad categories of damage. “Tangible” damages are those that can be established by records, documentation and mathematical calculation. Recovery for the costs of past medical treatment, loss of past earnings, cost of future medical care, and loss of future earning capacity are in this category. “Intangible” damages are those which do not depend on, and cannot be determined from, financial records. Recovery for pain and suffering, mental anguish, physical disfigurement and physical incapacity would be in this category.

In a wrongful death action, “tangible” damages would be the loss of financial support that the deceased family member would have provided to the surviving spouse, children or parents if the deceased would have lived. The plaintiffs may also recover for loss of comfort, aid, and society — the intangible results of the death of the family member.

Effective July, 2005, our state legislature set a $350,000 cap on noneconomic damages (such as pain and suffering) awarded against a single doctor or institution or up to $1.05 million if additional doctors or hospitals are involved. If a defendant is proved grossly negligent, the damages cap does not apply.

How long will my case take?

Normally it takes 1 to 3 years to bring a case to conclusion. The time required varies because of factors such as the number of parties involved, the number of depositions and investigation needed, and the schedules and commitments of experts, the judge, etc. If the case is tried and a favorable verdict obtained, a defendant in South Carolina has an absolute right to appeal. Appeal from a plaintiff’s verdict usually prolongs the conclusion of the case an additional 2 to 4 years.

Will I have to attend court hearings?

As your case is developed and prosecuted, there will be various court hearings on legal matters. These hearings normally involve discovery issues such as the Court determining what documents must be produced when one side has objected. These types of hearings do not require your attendance or participation. If any court hearing does require you to attend, you will be notified.

Will the doctor loss his or her license to practice medicine?

Only the South Carolina Board of Medical Examiners is empowered to strip a doctor of his/her license. That rarely occurs as a result of a single malpractice case. We know that a small percentage of doctors are responsible for a large percentage of medical malpractice cases. One 1987 study reported that less than 2% of all physicians practicing in Cook County, Illinois were defendants in 36% of the medical negligence litigation filed in the preceding 15 years. Another study in Florida demonstrated that less than 4% of the physicians were responsible for approximately 45% of the paid claims to injured victims.

State medical boards have been criticized for their lack of aggressive action against dangerous doctors. Sidney Wolf’s book 10,289 Questionable Doctors documents that only 1,974 doctors out of 623,000 doctors nationwide were disciplined as a result of their actions. Compare this figure with the study reported in the New England Journal of Medicine in 1987 that there were approximately 20,000 physicians in American who were impaired by alcohol abuse, drug addiction, or simple incompetence.

Although no lawyer has the power to take away a doctor’s license, some cases can bring about significant changes in hospital practice and the way physicians approach their patients.

Will the defendant offer to settle my case?

In South Carolina, many cases are mediated before they are called to trial. Mediation is a procedure whereby all parties come together with someone, usually a lawyer or former judge, trained in the mediation process. A mediator has no authority to impose a settlement on either side. You are under no requirement or obligation to settle your case for any figure at any time. However, sometimes mediation of a case will lead to a settlement offer by the defendant.

If the defendant makes a settlement offer, how will I know if it is fair?

The determination to settle your case is always yours. Often, the defendant may extend more than one settlement offer before the case goes to trial. Each significant settlement offer will be conveyed to you along with our analysis of potential risks and benefits.

Will we have to go to trial?

Malpractice cases are unique in that many insurance policies require the consent of the doctor before any settlement negotiations can take place. Sometimes the physician refuses to give his or her consent. Sometimes the insurance company does not view the case the way we do. When there is significant disagreement over what a jury’s verdict is likely to be, the only alternative may be a trial.

What is a deposition?

A deposition is a legal proceeding provided by the South Carolina Rules of Civil Procedure under which any party or witness may be asked questions under oath. The witness’ sworn testimony is taken down by a court reporter. Sometimes the deposition may be videotaped. The deposition may then be used at trial basically two ways. First, the deposition may be read or the videotape played in lieu of the witness’ appearance. Secondly, the deposition may be used to “impeach” the witness — to show that he or she said something differently under oath than what they’re presently testifying.

Will I have to give a deposition?

In virtually every case the plaintiff in a malpractice action will be required to give their oral deposition. People with knowledge of relevant facts may also be required to appear. This may include family members or co-workers.

Are there any documents you will need from me?

We will need all of the written materials which might assist us in the development of your case. Some of the more common documents that are needed are:

Medical and health care bills relating to the injuries
Income tax returns for the past 5 years
Copies of medical records
Pertinent photographs and videotapes
Wills and probate documents (in wrongful death actions)
Brochures and advertisements obtained from the health care professionals or facilities
Medical instructions received from the health care provider
Information on past/present prescriptions and medications the client/patient might have been or is currently taking

Any documents delivered to us may be copied. This includes photographs. We urge our clients to retain copies in their personal files of all documents that are delivered to us for safekeeping.