MEDICAL MALPRACTICE, TORT REFORM AND ERISA

Press Release: Legal Lines with Locke Meredith

Sean Fagan: Medical Malpractice Claims

Attorneys Locke Meredith and Sean Fagan discuss medical malpractice claims.  This refers to claims against doctors, hospitals, and healthcare providers. They also discuss Worker’s Compensation claims.

Unlike a typical lawsuit, if you want to sue a healthcare provider, you first must go through the Medical Review Panel.  Due to statutes by the Federal Government, the process of medical malpractice law suits limits the amount of damages you can collect from a healthcare provider and the way you can prosecute the suit.  The first step in the process is sending a letter to the doctor called the Patient Compensation Fund.  This notifies the doctor he/she is being sued.  The Medical Review panel is then appointed, made up of three doctors.  The doctor being sued appoints one, the patient appoints one, and they appoint a third.  The process begins by doing research, finding out what happened, and getting medical records.  The evidence is presented to the Medical Review Panel, and then the three doctors make a ruling.  After passing through the Medical Review Panel, a hearing date is set.  The plaintiff will present a position paper that outlines what he believes happened, what the witnesses will say, and attaches the depositions.  The defendants do the same thing.  Then you go in and meet with the three doctors, as well as the attorney chairman, who is an attorney presiding over everything.  Your attorney will present your issues to see if they have any questions, and then you leave and wait for a decision.  Ninety-nine percent of the time, they rule that no malpractice was committed.

After this process, then you have the opportunity to go to the court, let an impartial jury review the same evidence, and the doctors on the Medical Review Panel then may serve as witnesses. You have ninety days to file a suit to go to court after the Medical Review Panel makes their decision.

An important difference in medical malpractice suits is that healthcare providers are not held to the same standard as general torts.  In order for it to be considered malpractice, a doctor must do something that a normal doctor under the same circumstances would not do.  If the mistake the doctor made is one commonly made in the same circumstance, or if it is an outlined risk in the waiver that the patient signs before the procedure begins, the doctors are protected.  The law requires an expert testify that the particular act or omission falls below what all other doctors would normally do.

Another defense against doctors in medical malpractice is that the limited amount of general damages that can be recovered is five hundred thousand dollars.  This covers physical and mental pain, scarring, and suffering, not lost wages or other medical expenses.  Of this five hundred thousand, one hundred thousand comes from the doctor’s insurance company, and the rest comes from the Patient Compensation Fund.  Due to this one hundred thousand dollar cap of liability from the doctor, they often are not interested in settlement.

The Patient Compensation Fund is a fund contributed to by all healthcare providers in the state, if they so choose.  If they pay into the fund, they get the benefit of the five hundred thousand dollar cap.  Doctors who benefit from this protection of the law must be a qualified healthcare provider.  If not, they get no protection, and no cap.  As of late, contributing nursing homes are now under this same protection.

Next Meredith and Fagan turn their attention to Worker’s Compensation.  A Worker’s Compensation claim is one in which an employee is injured in the scope and term of his/her employment.  This is a no fault system, meaning a negligent employee hurting himself on the job still can recover benefits under Worker’s Compensation.  The trade off of this no fault system is limited recovery, even in the case of total negligence of your employer.  Furthermore, recovery is scheduled, with specific amounts given if you lose an arm, leg, finger, ect.

Another form of recovery available to those injured on the job is temporary total disability.  This means that you receive up to two-thirds of your normal income or three hundred and eighty four dollars a week, whichever is lesser. Another type of benefit Worker’s Compensation provides is medical expenses.  Another benefit provided is SAB’s, which is the difference between what you are currently earning, and what you could be earning if you were not disabled.  This benefit lasts for five hundred weeks.  Another aspect of Worker’s Compensation is that if a subcontractor comes into your place of work and signs a contract with your employer, and you get hurt because of your employer’s negligence, you are only entitled to Worker’s Compensation benefits.

Another thing to note about personal injury claims are the rights of healthcare providers to be paid for their services, known as liens.  If Medicare and Medicaid is not paid for, the attorney is going to pay for it.  This can often come from the settlement of judgment money.  This is something a lot of people do not know about.

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