Frequently Asked Questions about Medical Malpractice
The Malpractice Law Firm Jack H. Olender & Associates, PC in Washington, D.C. helps medical malpractice victims in many types of cases. Below we provide answers to commonly asked medical malpractice questions. Please contact us for additional information.
- What is medical malpractice?
- Can I sue for medical malpractice?
- Who is liable for medical malpractice?
- How long do I have to bring suit?
- Is medical negligence common?
- Do your firm's successes mean you will win my case?
- How do I prove my case?
- How long will my case take?
- Will I have to go to court?
- How will I pay for your time and expenses?
- What expenses are involved?
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At Jack H. Olender & Associates, PC, every case is approached as a team. Our attorneys’ combined 200 years of malpractice and injury law experience produce an indomitable resource for victims of avoidable medical tragedies.
Contact us to see the difference our exceptional medical malpractice and catastrophic personal injury attorneys can make in your case and in your life.
The firm generally works on a contingent (percentage) fee arrangement, so no legal fees are paid if money is not recovered on your behalf. We advance the costs of prosecuting your case. We practice in District of Columbia and Maryland courts.
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Medical malpractice or professional negligence is the failure of a doctor, hospital, nurse, technician, pharmacist or other health care provider to uphold good and accepted medical techniques or principles. In other words, they provide substandard care. Failure to provide at least average, standard care is substandard care, and if it results in injury or death to the patient, it is malpractice.
A patient injured due to medical negligence—or a family member if the victim is unable—can file suit. When someone dies as a result of medical negligence, the patient's family may sue for wrongful death.
Any medical/healthcare provider—physician, nurse, therapist, etc.—who has caused injury to a patient because of professional negligence or substandard care may be named as a defendant.
Also, their employer—hospital, HMO, professional corporation, etc.—can be sued.
We will give you the general rules, which have many exceptions. An experienced malpractice lawyer must carefully analyze all the facts of the case to determine when the time will most likely run out in any given case. Here are the general rules:
District of Columbia:
Three years, generally, from the date of the malpractice and damage where the patient is alive. Or, three years from the date when the patient, parent or guardian knew or should have known of the malpractice and damage where the patient is alive.
Two years from the date of death, where the patient has died, for some elements of damages. In summary, some damages will be under the two year rule, and some damages will be under the three year rule when the patient has died.
Where a minor (child) is the patient and is alive, the child’s claims can be made until the 21st birthday. However, there are some elements of damages, which would be claims of the parents, and would be under the adult’s three-year rule.
In addition, there may be shorter time limits if the defendant is a government agency. Proper claims against the U.S. government or its agencies must be filed within a two-year limit and notice of claim or claims against the District of Columbia and its agencies must generally be served within six months.
The statute of limitations or time limits in Maryland are generally the same as the District of Columbia’s with two exceptions:
- The two-year time limit where death occurs is not applicable in Maryland.
- The “discovery” rule (three years from the date when the malpractice and damage was first reasonably discoverable) has a cap of five years from the malpractice date.
These are complicated rules and laws and amateurs should not guess what they mean.
The State of Maryland and various subdivisions and agencies have varying notice and claim requirements.
All of this may be confusing. We don’t want to simplify it because it’s not simple. Experienced malpractice lawyers sometimes need to re-check the rules and the case law in light of the specific facts of the case to decide just when the time runs out.
Because it often takes time to obtain all the pertinent medical records and it takes time to have expert physicians review the records and give their opinions, it is always wise to consult experienced malpractice counsel as soon as possible.
Yes, more than you know. If official estimates of 98,000 deaths a year from malpractice in hospitals alone, plus the hundreds of thousands of malpractice deaths outside hospitals, when added to the many hundreds of thousands, or even millions of injuries from malpractice per year indicate malpractice is common, then the answer is yes, medical and hospital negligence is common.
But only a tiny percentage of malpractice victims or their survivors ever make a claim or file a lawsuit for the injuries or deaths.
Nothing is guaranteed in life or in malpractice litigation. To assure as best we can that the case will be successful for our client and the law firm, we investigate the case thoroughly before agreeing to proceed with it to claim and suit. We never, ever knowingly take so-called “frivolous” cases or “junk” cases. The case has to be solid and substantial if the client is to receive a financial recovery and the law firm is to be compensated for our expenditure of work and expenses we need to advance to prepare and prosecute the case. The bottom line is we do everything we can to make the case successful.
A plaintiff in a medical negligence case must establish through evidence that:
- The defendant was negligent (rendered substandard care)
- The negligence was a proximate cause of injuries
- The plaintiff suffered damages as a result.
All three elements must be proven.
Expert testimony is almost always required to prove negligence and causation of damages. Licensed physicians who are familiar with the standard of accepted medical care for the medical specialty involved are required as witnesses to prove the case. The experts must establish what the standards were and how the defendant violated them and what damage was caused by the substandard care.
It depends. The time is generally about the same in D.C. and Maryland. Usually it takes several months to gather all the necessary medical records and obtain expert opinions from specialists willing to testify under oath. Then, if the extent of the injuries is fairly obvious, at that point, notice of claim must be given. In Maryland, an expert’s report and certificate must also be filed. Once the notice is filed in D.C., a lawsuit cannot be filed until 90 days has expired. In Maryland, suit can be filed once the expert’s reports(s) and certificate(s) have been filed. In the very rare case where the malpractice is very clear, settlement may occur before the suit proceeds very far; usually, mediation with an impartial mediator acceptable to both sides is used.
If there is no prompt settlement, the court gives a scheduling order and “discovery” begins. This means the parties provide documents to one another, answer written interrogatories under oath and take “depositions”– oral questioning under oath of parties, fact witnesses and expert witnesses by the lawyers before a “court reporter” who produces a written (and usually electronic) transcript, plus video may be used. Then, under D.C. rules, a compulsory mediation is held to try to settle the case. In Maryland, a mediation is usually held, but usually not compulsory. If not settled, a pretrial hearing before the judge is held and then the trial. Either side can file post-trial motions to seek a different result than the jury’s verdict, and either side can file an appeal to a higher court.
So how much time does this take? Our experience is that if the case is not settled before suit, it will take about 18 months to two years to go from the time suit is filed until trial. The time can be a little more or a little less. Our experience is that most of our cases usually settle somewhere along the way to trial. We believe the reasons we are able to settle—which eliminates the considerable gamble of a jury trial—are that we evaluate and select our cases carefully and we work them up and prepare them carefully so the defendants are willing to pay to eliminate their gamble.
You will have to attend your own deposition, usually in a lawyer’s office or a court reporter’s office. Your lawyer will always be with you. Sometimes your lawyer will want you to attend a defendant’s deposition, also.
You will have to attend any mediation(s).
You will have to attend the pretrial.
You will have to attend the trial.
Of course if the case is settled along the way, that will end your requirement to appear.
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Most malpractice cases are handled on a contingency fee agreement. Our firm receives a percentage of the financial recovery made by the client as a result of the prosecution of the case. We generally do not expect the client to pay any of the expenses of developing the case until a recovery is made. Expenses are reimbursed from the settlement. In the event no recovery is realized, we do not expect the client to repay the out-of-pocket costs for developing the case in the District of Columbia, and in Maryland, we can tell you we never have and never intend to sue the client for costs in such circumstances.
The prosecution of a malpractice case is expensive. Our attorneys must obtain all the medical records and hire experts. They must conduct depositions, usually across the country, with substantial court reporter fees required. Time must be dedicated with our paid experts to creating strategies and preparing for court. The investment also includes costs for exhibits and technology to fully demonstrate our clients’ devastating injuries. These are the major expenses.
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