Medical Malpractice

Frequently Asked Questions

1. What is "medical malpractice"?

Medical malpractice is a broad term generally used to describe any treatment, lack of treatment, or other departure from accepted standards of medical care, health care, or safety on the part of a health care provider that causes harm to a patient. Examples of medical malpractice are too numerous to list. Medical malpractice can include, however, misdiagnosis, improper treatment, failure to treat, delay in treatment, failure to perform appropriate follow-up, prescription errors, etc. In many instances, medical malpractice is not obvious to a lay-person or his lawyer and requires the review and analysis by medical experts.

2. What must be shown to prevail in a medical malpractice case?

While there are various types of medical malpractice claims, generally speaking, a claimant must usually show the following:

• The health care provider owed a duty to the patient
• The health care provider breached that duty
• The patient suffered an injury, and
• The patient's injury was a proximate cause of the health care provider's breach
3. What is the first step in pursuing a medical malpractice claim?

The first step in pursuing a medical malpractice case is suspecting that one may have been the victim of medical malpractice. While not every bad result is due to medical malpractice, one who suspects that something was wrong should consult an attorney to review the matter. The attorney often will consult with medical professionals. This process often involves the obtaining and review of medical records and other pertinent information. If it is determined that one has a good case, the next step is usually to give written notice of the claim to the medical provider that is believed to have committed the medical malpractice.

4. Will I have to go through a trial in court before my case is finished?

While some cases do require a formal trial proceeding, most cases are settled before they go to court.

5. Do medical malpractice suits take a long time?

Malpractice cases don’t necessarily take any longer than other cases, but doctors, hospitals, and insurance companies tend to drag them out.

6. I know lawyers can be expensive. How does your firm charge?

I do not charge for a medical malpractice consultation. Generally, by the end of that consultation I have determined whether I think you have a claim worth pursuing further. If I believe you have a case worthy of pursuing further, I will explain my contingency fee agreement and discuss whether you want me to represent you. You are under no obligation to hire me as part of this consultation, even if I determine you have a case worth pursuing. If you wish to retain me, I handle all medical malpractice cases on a contingency fee basis. That means that you do not owe me any legal fee unless I recover money for you. Once I have successfully completed your case, I will take a percentage of the amount recovered.

7. What kinds of damages are typically included in a settlement?

A typical medical malpractice claim will include compensation for pain and suffering, payment of medical expenses for treating the injury caused by the malpractice and reimbursement for any past, present or future financial losses that you have incurred as a result of the malpractice.

8. How long do I have to bring a medical malpractice claim?

In Oregon, a medical malpractice claim must be settled or a lawsuit filed and served within two (2) years of the date you were injured, or had reason to know you were injured. Further, in Oregon, when you are making a claim against a public body (such as OHSU or the VA), you must also send what is called a “TORT CLAIMS NOTICE” or your claim will be barred. This notice must be sent within 180 days in the case of injuries and one year in the event the malpractice caused death. These are technical requirements that must be completed or your case will be barred. An attorney can help fulfill these requirements.

9. Have I waived my rights because I signed a consent form?

No. Before any surgery the doctor should go through a procedure referred to as PARQ, which stands for a discussion of the Procedure, a discussion of the Alternative, a disclosure of the Risks, and an opportunity to ask Questions. At the end of this procedure you may be asked to sign a consent confirming what was discussed and agreeing to proceed. The execution of a typical consent form is not a waiver of your right to make a claim if the treating physician commits malpractice. A consent form that contains a waiver of the right to sue would probably be unenforceable as being against public policy.