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When You Think You Have a Malpractice Claim

Admin • Feb 08, 2018
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Recovering from a serious injury or illness can be tough on its own, but this process becomes even harder when you suspect your injury has been caused (or at least exacerbated) by a medical provider's negligent or reckless behavior.

From improper disinfection procedures to a slip of the hand during surgery, doctors and nurses can and do make mistakes, and these mistakes can often have dire consequences. Read on to learn more about how to determine whether your injury may justify a medical malpractice lawsuit and what you'll need to do before you proceed.

How Do You Know Whether Your Injury Constitutes Malpractice?

Medical malpractice is a type of personal injury lawsuit. Like other personal injury claims litigated under Michigan law, it involves three elements:

  1. A duty owed by the medical provider to the patient
  2. A breach of that duty
  3. Damages
While malpractice does not need to be deliberate or intentional to be actionable, a plaintiff will need to show that the doctor, nurse, or other medical provider actively breached his or her duty to the patient.

For example, a post-surgical infection that was due to a nurse's failure to properly sterilize his or her hands before applying a bandage may constitute malpractice, as the nurse had an affirmative duty to take steps to prevent the spread of pathogens. On the other hand, a post-surgical infection that is relatively common after a certain type of surgery may make litigating a malpractice claim much more difficult.

Note that the standard of care can vary based on the patient's age, condition, and overall health. A young, generally healthy patient may require less hands-on care or post-surgical monitoring than an elderly patient with a weakened immune system. Actions or inaction that could constitute malpractice for the elderly patient may not be considered a breach of the duty of care for the younger patient.

How Should You Proceed If You Suspect Medical Malpractice?

Like other personal injury lawsuits, medical malpractice claims are generally subject to a two-year statute of limitations. This time clock generally begins running from the date of your injury. In situations where an injury may not be reasonably apparent, the clock starts on the date you discovered or should have discovered the injury.

While the statue of limitations may be extended in some situations, either because of the physician's alleged fraud or because the injury involved the reproductive organs, in most cases, waiting more than 2 years to file a medical malpractice claim will result in its dismissal. Even if you have a clear-cut case of negligence, you'll be unable to recover any financial damages from the doctor or hospital.

Michigan law also requires medical malpractice plaintiffs to notify the medical provider(s) of the plaintiff's intent to sue for malpractice at least 182 days , or around 6 months, before the claim is filed.

Because of this, you need to consult an attorney as soon as possible. In many cases, you need months to gather the records and documents your attorney will need to make an informed decision whether, when, and where to file. You may not give your attorney enough time if you wait until the statute of limitations is about to expire.

Once you've contacted an attorney to get the ball rolling on your claim, analyze the damages you'd like to seek. Michigan law permits medical malpractice plaintiffs to recover an unlimited amount of compensatory and punitive damages from the medical provider.

This means that whether your actual out-of-pocket costs total $1,000, $10,000, or $1,000,000, you should be entitled to a full award of these damages to be made whole by the person, people, or medical entity that caused your injuries.

If you suspect you are the victim of medical malpractice, contact Marienfeld Law PLLC for help with your case.

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