As with any personal injury claim, the discovery phase in a medical malpractice lawsuit is the time for establishing negligence and gathering evidence. Information from documents and testimonies forms the backbone of your claim.
How to Establish Negligence in a Medical Malpractice Lawsuit
The uniqueness of the field requires that you address multiple points when it comes to proving medical negligence:
A Doctor/Patient Relationship Existed
Before your claim can proceed, you and your lawyer must show a relationship existed between you and the defendant. However, this is fairly easy: If the doctor agreed to provide some type of care, treatment, or advice, the law considers this sufficient enough to indicate a relationship.
The Doctor Deviated from the Standard of Care
This is where the claim becomes tricky. Medical records, too, aren’t always accurate: As you request these documents, you’ll find that the doctor and his or her staff may have left out or altered important information.
As a result, a lawyer taking on your case must first establish the “standard of care” and then reveal that your doctor failed to follow it.
Proving at this point often involves extensive research:
- Reviewing medical journals
- Reading through clinical practice guidelines
- Examining the community where the defendant practices
- Speaking with and getting testimony from other similarly experienced experts.
In other instances, this could be determining the physician failed to follow proper procedures, such as getting a patient’s “informed consent.” Before a patient agrees to a procedure, the doctor must have informed him or her about all possible benefits, risks, and alternatives and then gotten his or her written consent.
This Breach of Care Led to the Injury
At this point, you and your lawyer must provide a direct correlation between the lack of care received and your injury.
Although it may appear straightforward, be warned that the defendant frequently attempts to make it seem like your injury occurred from an underlying medical condition. He or she will further provide evidence and testimony that this injury already existed before you went through surgery or a particular treatment program.
The Injury Resulted in Damages
Not only were you injured, but the condition led to increased medical bills, a high degree of pain, and decreased earning capacity.
At this stage, you’ll need to prove the injury:
- Put you in an extreme level of pain and mental anguish.
- Required additional treatment, for which you had to pay.
- Prevented you from working or permanently decreased your income.
Later, these points help determine how much your case should be rewarded.
Understand that medical malpractice cases are often lengthy, complicated affairs that could last several years. If you believe a doctor didn’t maintain a standard of care and that negligence directly resulted in a life-altering injury, bring your claim to Trantolo & Trantolo’s Connecticut medical malpractice lawyers.
What Evidence to Collect in a Medical Malpractice Case
Medical malpractice cases have earned a reputation as being long and complicated and a large part of that assumption comes from the collection of evidence. Occurring during the “discovery” phase, the lawyer and plaintiff work to gather relevant medical records and history, including the identification of witnesses who are knowledgeable about the incident.
During the case, the following evidence may be gathered:
- Deposition Testimony
- Requests for documents
- Written questions, or interrogatories, from one party to another about the evidence presented at the trial
- Research
Medical Records
One of the most crucial pieces of evidence, a patient’s medical records give a more comprehensive picture of his or her condition. As a result, it’s recommended that, early in the case, the plaintiff and lawyer obtain the records as soon as possible.
However, records can sometimes be expensive to procure and a firm may spend thousands of dollars printing out pages.
Additionally, records can indirectly show where something went wrong. Specifically, parts may be lost or omitted – intentionally or not.
Deposition Testimony
Deposition testimony from doctors or nurses may fill in some medical record gaps, but could also contradict what’s in a patient’s medical records.
Medical Journals
In medical malpractice cases, the lawyer needs to prove that the doctor deviated from the accepted standard of care and that their actions were directly responsible for the plaintiff’s injuries. Yet, as it can be difficult to prove what the standard of care is, a lawyer often turns to medical journals and articles as evidence. These documents can reveal how a condition should be treated and may further contradict the doctor’s statements.
Other Evidence
Depending upon the nature of the case, you may be required to have expert testimony showing if and how the defendant breached the accepted standard of care and how that affected the patient. This portion may be complicated, as other medical professionals may not want to testify against one of their peers for fear of retaliation.
Additional evidence could be presented, such as medical bills and insurance records, indicating the expenses related to the resulting injuries.
After everything is gathered, each attorney then asks to see copies of the medical records that may be presented against the other side, along with any medical articles used. As the plaintiff, be prepared for the doctor’s insurance company to dig up information about past car accidents, workers’ compensation, and other injuries to attempt to prove your condition was pre-existing or related to another incident.
What Legal Keypoints You Need to Consider in a Medical Malpractice Claim in Connecticut
Each state has its own set of malpractice laws, establishing caps and limitations that directly influence how your case will play out. Certain states tend to be stricter, while others offer a bit more leniency regarding when you can file and how much you’ll be awarded.
If you or a loved one is facing a medical malpractice case in Connecticut, keep the following points in mind:
Statute of Limitations
In this state, a medical malpractice lawsuit nearly always must be filed within two years from the time the injury first occurred, was discovered, or should have logically been identified.
However, in certain instances, the lawsuit may be initiated within three years from a medical professional’s omission, even if the plaintiff does not and could not have reasonably discovered the injury. This is called the Statute of Repose.
In very select instances, the plaintiff can circumvent these requirements. To do so, he or she needs to prove the physician had a “continuing duty” to warn the patient about malpractice, and not doing so was a breach of standard care. In proving this, the plaintiff’s legal team must present evidence concerning an act of omission or affirmative acts of misconduct.
As well, the deadline may further be extended if the defendant left the state after committing malpractice or concealing the action.
Along with these factors, Connecticut, unlike other states, does not have a separate statute of limitations for minors.
Caps
Connecticut has no cap on the amount that may be awarded from a case.
Shared Fault or Partial Liability
Connecticut, on the other hand, has a modified comparative negligence rule. When the plaintiff in a medical malpractice lawsuit does not follow the doctor’s instructions, the court may decide to reduce or eliminate the reward.
What occurs is, the court decides to lessen the amount proportional to the plaintiff’s fault. For instance, if his or her fault is established as 25 percent, the total amount is cut by a quarter.
As well, if the plaintiff’s fault is equal to or greater than the defendant’s, the plaintiff cannot recover damages, and the case may be dismissed.
Submitting Proof
Connecticut requires the lawyer representing the plaintiff to file a certificate with a good faith belief that negligence occurred. The document must include a letter of opinion from a medical expert, who, because of the frequent backlash resulting from these cases, has the option to remain anonymous.
Collateral Source Rule
With this standard rule, the defendant cannot attempt to lessen its liability by revealing that other sources compensated the plaintiff. In Connecticut, however, the reward is reduced for these factors, although the plaintiff is compensated for any premiums paid.
Expert Witnesses
This state defines who can be an expert witness in a malpractice trial. He or she must be a similar healthcare provider or have equivalent training and experience to the defendant. As well, any expert witness must be licensed and should have practiced for more than five years.
If you suspect and have evidence that a doctor you trusted committed medical malpractice or misdiagnosis, Trantolo & Trantolo’s Connecticut medical malpractice lawyers are here to help. To have a lawyer review your claim, contact any of our Connecticut locations.
What to Do If You Are a Victim of Medical Malpractice
Proving negligence requires clear evidence, expert testimony, and an experienced legal team that understands the complexities of Connecticut malpractice law. Don’t wait until critical evidence disappears or the statute of limitations expires. If you believe you’ve suffered harm due to a medical professional’s negligence and if you’re within the two-year statute of limitations, reach out today for a free consultation with Trantolo & Trantolo’s experienced Connecticut medical malpractice lawyers.
