|
1. What is medical malpractice?
In New Hampshire, medical
malpractice is defined by
statute as “any action
against a medical provider
to recover damages or account
of medical injury” (RSA
507-E:1(I)). Medical injury
is defined as “any adverse,
untoward, or undesired consequence
arising out of or sustained
in the course of professional
services provided by a medical
care provider…”
(RSA 507-E:1(III)). Thus,
malpractice occurs when a
medical care provider causes
injury. However, that injury
must also have been caused
by substandard or negligent
care.
2. What is standard of
care?
Standard of care is the minimal
acceptable care required of
a medical care provider under
the circumstances. In order
for a patient to successfully
pursue a medical malpractice
claim he or she must prove
that the defendant provider
failed to meet that standard
of care. Another statute (RSA
508:13) specifies that whether
a medical care provider has
met the applicable standard
of care is to be determined
by the “standards and
recommended practices and
procedures of his profession,
and the training, experience,
and professed degree of skill
and care of the average practitioner
of such profession…”
That statute further explains
that the standard of care
to be applied shall not be
bound by the standards exhibited
within any particular geographical
area.
3. What is causation?
Causation is one of the burdens
a patient must bear in successfully
pursuing a medical malpractice
claim. This requirement is
also governed by a statute
which compels a Plaintiff
in a medical malpractice action
to prove that as a result
of the breach of the standard
of care the “…injured
person suffered injuries which
would not otherwise have occurred”
(RSA 507-E:2 (I) (C)). Thus,
a patient can recover damages
in a malpractice case only
for those injuries directly
arising from a medical care
provider’s negligence.
4. Are experts required?
Yes. Again, a statute mandates
this by requiring expert testimonial
regarding the standard of
care, its breach, and causation
(RSA 507-E:2 (II) (a)). This
often means that multiple
experts may be required in
medical malpractice cases
to adhere to various issues
presented and specialties
of medicine involved.
5. How are Attorneys fees
paid?
Although clients have the
option to pay for our representation
on an hourly basis as their
cases progress, most cannot
afford to do so and instead
elect to hire us on a contingent
fee basis. A contingent fee
is paid only if the contingency
of a financial recovery is
achieved. When that occurs,
a percentage of the total
recovery is charged.
6. How are costs paid?
In addition to Attorney’s
fees, costs are incurred in
pursuing malpractice and personal
injury cases. These can include
the costs of gathering medical
records, investigation, expert
fees, court fees, deposition
expenses, travel, and more.
For those clients who cannot
afford to pay for those costs
as the case progresses, we
will pay for them and take
repayment from the recovery
at the conclusion of the case.
7. Do most cases settle?
If we carefully screen the
cases on which we are asked
to provide representation,
we properly prepare them,
our clients provide accurate
information and testimony,
and the other variables that
make a strong Plaintiff’s
case are achieved, there is
a likelihood that it will
settle. We will advise our
clients during settlement
negotiations; however, the
decision as to whether to
settle is ultimately that
of the client’s.
8. What is the Statute
of Limitation?
A statute of limitation is
the time period within which a suit may be brought. Ordinarily,
a patient has 3 years from
the date of negligence within
which to file suit (RSA-508:4).
The “discovery rule”
can extend that time period
under some circumstances if
the injury and its relationship
to the negligence could not
reasonably have been discovered
at the time of the negligence.
Also, minors usually have
until their 20th birthday
to commence a claim for personal
injuries (RSA 508: 8). However,
the medical and extraordinary
bills incurred in the care
of a minor are the responsibility
of the minor’s parent
or guardian; consequently,
the three year Statute of
Limitations applies to such
expenses. Generally, it is
best to contact a lawyer promptly
to allow sufficient time to
properly investigate a case
and to avoid the potential
catastrophe of missing a statute
of limitations.
9. Why do attorneys turn
down malpractice cases?
There can be a number of reasons
why an attorney will not take
a case, including:
| • |
A
credible expert will not
confirm that there has
been malpractice or that
malpractice was the cause
of injury or death |
| • |
The
damages are insufficient
to justify the cost of
bringing a case to court.
It is very expensive to
pursue a medical malpractice
case to conclusion. Therefore,
even if medical malpractice
clearly occurred, the
harm that was caused must
be serious enough to allow
for a recovery that would
warrant such a costly
and difficult undertaking.
|
10. If I signed a medical
consent form, have I waived
my right to bring a case?
No. A consent form does not
give the health care provider
the right to provide negligent
care. While a consent form
indicates an acknowledgement
of stated risks and complications
associated with a given treatment
or procedure, it does not
relieve the physician from
his or her duty of meeting
the standard of care associated
with such treatment.
11. How do I obtain my
medical records?
A patient, or his/her legal
representative, has the right
to obtain copies of medical
records at a reasonable cost.
The patient, representative,
or a lawyer (who has obtained
signed authorizations) can
request these records. It
often takes time to request
and obtain those records,
including follow up requests
that may be necessary. Therefore,
it is advisable to begin to
the process early.
12. What damages are recoverable?
In medical malpractice and
other personal injury activities,
the damages recoverable are
variable depending on the
types of injuries incurred.
Common areas of damage include:
| • |
Medical
bills |
| • |
Lost
wages and lost earning
capacity |
| • |
Physical
incapacity and suffering |
| • |
Emotional
Suffering |
| • |
Extraordinary
life care costs such as
nursing care, therapy,
,and specialized medical
and other equipment |
Reis Law
66 Hanover St. Suite 203
Manchester, NH 03101
Ph: 603-792-0800
|
Medical Literature 
