We trust our doctors and other medical staff to put our best interests first, tending to our needs in a professional manner. While the vast majority of them do this, it’s not always the case. When a medical professional fails to adhere to a certain standard of care, he or she is being negligent. A breach of duty is the basis for a medical malpractice claim. Victims of medical malpractice are entitled to compensation, but they must adhere to certain procedures and file the appropriate documentation.
The Basics of a Medical Malpractice Claim
In general, to win a medical malpractice claim, you must prove three things:
- That a relationship existed between you and the doctor. The distinction here is that you and the doctor had a professional relationship – in other words, he or she had to agree to render medical services to you. You can’t sue someone for advice you overheard at a party.
- The doctor was negligent. There’s a difference between being dissatisfied with your care and true negligence. Negligence occurs when a medical professional fails to exercise reasonable care in the course of diagnosis or treatment. In legal terms, another doctor would have acted differently, given the same or similar circumstances.
- The negligence directly led to your injury. Being “almost” injured isn’t proper legal grounds for a claim. Since doctors treat the sick to begin with, you must prove it was your doctor, and not your illness, that led to your injuries.
Medical malpractice claims have certain deadlines. Most important is the statute of limitations, which is two years from the incident that led to injury. Another important consideration is the Affidavit of Merit, a statement you must file along with your personal injury claim.
What is an Affidavit of Merit?
In legal terms, an affidavit is a sworn statement that essentially assures the “merit” of your claim – in other words, the extent of the defendant’s wrongdoing and the strength of your allegations. The affidavit of merit is a product of tort reform that most states enacted to reduce the number of frivolous lawsuits.
Language requirements for an affidavit vary by state, even municipality. But all affidavits of merit have three things in common:
- An expert witness must sign off on it, and they must be in the same field of practice as the defendant. For example, a cardiologist could not be a medical expert in a case involving your obstetrician.
- That expert reviewed your case personally, and;
- That expert believes your case has merit. In other words, he or she would have acted differently from your doctor in similar circumstances.
The professional signing your affidavit of merit need not be an expert witness testifying in court. While some doctors may feel comfortable stating they would have acted differently, they may feel uncomfortable testifying against a colleague.
Additionally, your attorney may think that the expert who signed your affidavit might not be an effective testifying witness. Reasons for this can differ, but one possible reason might be that the doctor is very technical or not approachable.
Do I Need an Affidavit of Merit to Win?
All states require an affidavit of merit, but the time to file it varies. In Texas, you must file your affidavit of merit with your initial complaint, unless the statute of limitations for your case is within 10 days. In those cases, you have 30 days to file an affidavit of merit.
Failure to comply with these regulations could result in the courts dismissing your case. For the best outcome, get in touch with a personal injury attorney soon after suspected medical malpractice; he or she can help ensure a timely filing of all documentation.