The FAQs on Medical Malpractice

We hope you will find the answers to your questions below

Medical malpractice is more common than you might think. It’s estimated that around 1 percent of all patients experience some form of medical malpractice. And yet barely 3 percent of these patients go on to file a claim. Reasons why claims are not filed often have to do with not understanding what medical malpractice is and how to move forward with a claim. If you are wondering whether you or a family member has been the victim of malpractice, we hope you will find the answers to your questions below.

1. What is medical malpractice?
2. How do I prove medical malpractice?
3. If I think I have a medical malpractice case, how soon should I contact an attorney?
4. If I didn’t like the care I received, could this be medical malpractice?
5. What are common reasons for malpractice claims?
6. What is “informed consent”?
7. Can I file a medical malpractice suit against a health care professional other than a doctor?
8. How is my medical malpractice case built?
9. How long will my case take?
10. How many cases of medical malpractice go to trial?
11. How are damages handled, and is there a “cap” on what I can collect in South Carolina?
12. How can I pay for legal help? I’m barely getting by because of my medical bills and not being able to work.

What is medical malpractice?

Medical malpractice is also called medical negligence, and it happens when a health care professional does not uphold the standard of care for the patient’s treatment, resulting in their injury or death. The medical standard of care is often defined as the care and treatment that would be considered reasonable and appropriate for the health care professional to employ while taking care of the patient. Medical standards of care are often based on local criteria, and on what another provider(s) with a similar background might have done in the specific medical situation. Sometimes the “medical standard of care” is called “reasonable care.”

How do I prove medical malpractice?

To bring a medical malpractice case, you need evidence that proves each of the following three points:

• The defendant (health care professional) was negligent, meaning that the care they provided did not meet the standard of care (the care was substandard).
• The medical negligence can be shown to be the cause of the patient’s injury.
• The plaintiff (patient) suffered damages due to the medical negligence.

If I think I have a medical malpractice case, how soon should I contact an attorney?

Generally, in South Carolina, you must file your case within three years of the medical occurrence, or within three years of the date of discovery of harm, which cannot be more than a total of six years from the date of the medical occurrence. If the claim involves a government agency it must be filed within two years.  There are some exceptions.

If I didn’t like the care I received, could this be medical malpractice?

We know it can be upsetting to receive care that didn’t go the way it was supposed to. But unless the outcome involved harm done to you, and you sustained damages, it likely wasn’t medical malpractice.

What are common reasons for malpractice claims?

There are three general categories into which most malpractice claims fall:

• A medical condition is not properly diagnosed. Some examples are cancer, heart attack, or stroke.
• A medical condition that had been properly diagnosed was not treated properly according to the medical standard of care.
• Informed consent was not obtained from the patient before the treatment began.

What is “informed consent”?

“Informed consent” means that you have been given the proper information needed to make a choice about your health care, and that you have the ability to make the decision. A lack of informed consent can be the basis for a medical malpractice case. The patient must demonstrate both of the following conditions:

• The patient did not receive the appropriate information concerning the medical treatment that resulted in their injury.
• If the patient had been given the appropriate information about the treatment, they would have declined it.

Can I file a medical malpractice suit against a health care professional other than a doctor?

The terms “medical professional” or “health care professional” include doctors, but these terms can also mean nurses, physician’s assistants, midwives, chiropractors, physical therapists, dentists, pharmacists, and others. You can also sue the hospital or other medical institution for which they worked if they were an employee.

How is my medical malpractice case built?

Medical malpractice cases hinge on evidence, so much time will be spent gathering and analyzing facts. Items needed for a malpractice case to begin include copies of all relevant medical records for the patient. The records then need to be reviewed by neutral-party medical professionals in order to determine whether the case involved negligence/an avoidable mistake, or whether the medical standard of care was met.

In South Carolina, your attorney is required to obtain an “affidavit of merit,” which is a statement signed by an expert medical witness. The statement must pinpoint at least one act of negligence that caused harm to the patient.

If it is determined that the case involves negligence and should proceed, several more steps will be taken before the suit is filed with the court. These steps are:

• Filing a Notice of Intent to File Suit. This is accompanied by the affidavit of merit.
• Holding a mediation conference (also called an alternative dispute resolution). It must be held within 90 to 120 days after the Notice of Intent is filed. The mediation process is meant to determine whether the case can be settled out of court using a third-party mediator. If the case can’t be resolved, the plaintiff may proceed with filing the suit.
• The suit needs to be filed within 60 days following the failure of the mediation.
• Depositions must be obtained. A deposition is a sworn statement produced as a response to questions by an attorney. Many people may need to be deposed, including the plaintiff.

How long will my case take?

Depending upon factors such as whether your case is settled out of court or goes to trial, it could take a year or more.

How many cases of medical malpractice go to trial?

Almost all malpractice cases are settled before going to trial—over 90 percent of them. You may not have to go to court at all.

How are damages handled, and is there a “cap” on what I can collect in South Carolina?

Many states have some type of cap, or limit on monetary damages, and South Carolina is one of them. The legal cap on what you can collect applies only to non-economic damages, such as pain and suffering and emotional anguish. In a medical malpractice case, $350,000 is the most you can collect against a single institution or provider of care for this type of damages. If a judgment is won against more than one defendant, the total non-economic damages cannot be greater than $1.05 million.

Economic damages include actual money paid for medical care, or money that is expected to be paid for future care, as well as reimbursement for loss of wages, compensation for any loss of ability to earn future wages, and similar financial losses. Economic damages in South Carolina have no cap.

How can I pay for legal help? I’m barely getting by because of my medical bills and not being able to work.

Most medical malpractice attorneys handle cases on contingency, meaning that they take a share of the recovery and don’t ask for money up front. The Louthian Law Firm abides by this practice, meaning that you can concentrate on taking care of yourself and your family, not worrying about how you will pay for your case.

When life goes wrong, we fight for what’s right.

Medical malpractice in South Carolina is a politically charged issue, which has led to an extremely complex set of laws in our state governing malpractice lawsuits. If you or someone you care about has been injured by the negligence of a medical professional, you should speak with an experienced South Carolina medical malpractice attorney like the ones at the Louthian Law Firm as soon as possible.

Our attorneys can help you evaluate your case; protect your legal right to the courts, stand by your side throughout the legal process, and get you the best possible results. For a free consultation, call the injury lawyers at Louthian Law Firm today at 1-803-592-6231, or fill out our confidential online consultation form.