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Message #703 Medical and legal malpractice

mp3 #703 What is Medical and Legal Malpractice (mp3 file)



Malpractice is an error or omission, that is, the failure of a professional person -- a doctor or a lawyer for instance -- to give you the kind of professional care or service other doctors or lawyers would ordinarily give you in the same circumstances and consistent with generally accepted professional standards.


You may not know if a doctor or lawyer has given you proper professional care or service, but there are ways to find out. The first step is to obtain and assemble all records of the patient or client –all charts, reports or files together with all other data on the case. These are all available to the person for whom the care or services was actually performed. You will need a medical or legal expert to review and study the records and files more fully to determine if there is some reasonable belief that a malpractice -- error or omission -- has in fact occurred.
There is a statute of limitations -- or a time limit -- within "which any lawsuit for malpractice must be filed. In the case of medical malpractice the limitation is one year from the date of the injury or one year after plaintiff discovers, or through the use of reasonable diligence should have discovered the injury, whichever occurs first.

In no event shall the time for commencement of a medical malpractice action exceed three years unless tolled by any of any of the following:

(1) upon proof of fraud;

(2) intentional concealment, or

(3) the presence of a foreign body, which has no therapeutic or diagnostic purpose or effect, in the person of the injured person.

A minor under the age of six years may have until his or her eighth birthday under certain circumstances. In the case of a legal error or omission, the limitation is one year from the date of the error or omission, or within one year from the date plaintiff discovers, or should have discovered, the error or omission, but in no event longer than four years from the date of the error or omission.


Your next step is to consult an attorney who will handle your case and proceed with proper guidance. Attorneys will represent you in lawsuits against other attorneys or doctors as well as any other professional person who has committed an error or omission. The attorney's fee may be based on the time spent or may be contingent -- that is, a contingent fee will be payable to the attorney only if the case is won and will be based on a percentage of the damages collected. You may be required to advance sums to cover court costs and costs to prepare the suit even though the fee is contingent. The attorney may also require you to advance the cost of an expert review of the case if this has not already been done. These are things you will have to work out in advance with your attorney and your agreement must be in writing.


The defense of malpractice cases is generally excellent and well prepared. Therefore, you should seek the best legal help you can get. Remember, malpractice complaints should never be used in a way to try to make some easy money. They are strongly defended. You should also remember that a bad result in the case or service performed for you does not necessarily mean or imply that the professional has committed an error or omission--that malpractice has occurred. You may have received the best result under all of the facts and circumstances, but if you really believe you've been treated improperly or unfairly, you should investigate immediately. Remember the statute of limitations.

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