Medical malpractice occurs when a patient suffers injury or harm as a result of the negligence of a health care professional. Negligence occurs when a health care professional falls below the standard of care expected of a reasonable practitioner of that profession in similar circumstances, and that failure causes the patient's injury or harm.
A patient can sue any health care provider for their negligent medical care (or lack there of) which has caused an injury or harm. Common areas that give rise to medical malpractice actions include:
- birth trauma and obstetrical negligence;
- misdiagnosis and delay in diagnosis (including cancer and stroke);
- inappropriate or unindicated surgery;
- surgical negligence;
- inappropriate or inadequate treatment and management;
- medication (pharmaceutical) and prescription issues;
- medical equipment and device issues;
- failure to properly monitor and respond;
- lack of informed consent;
- wrongful death;
- chiropractic negligence;
- optometrist negligence;
- hospital negligence
- nursing home negligence.
Medical negligence actions usually involve complex medical and legal issues and are often vigorously defended by health care providers. Therefore, it is important to choose the right lawyer to represent you in these matters. Below we will discuss five considerations to consider when choosing which medical malpractice lawyer will represent you in your case.
Experience and track record in medical malpractice actions
As noted above, medical malpractice actions are complex and hard fought. As such, retaining an experienced lawyer who can guide you through each step of the action can make the difference between a positive outcome and a negative one.
Lawyers who are experienced in medical negligence litigation often have valuable relationships which can facilitate their ability to properly investigate, litigate, and resolve a medical malpractice case. Relationships with other lawyers and independent experts (physicians, nurses, accountants, etc.) are essential to effectively assessing and advancing medical negligence cases.
At Siskinds, our team is led by senior partner, André Michael, who has 35 years of litigation experience. Our medical negligence team, comprised of four lawyers, has combined experience of over 60 years litigating medical malpractice and health law actions, from initial consultation, to investigation, to trial, and all the way through to appeal.
Scientific and medical knowledge
Medical malpractice actions usually involve issues of complicated medical and scientific evidence. Having an experienced lawyer who understands the medical concepts and scientific literature is essential to properly investigating and presenting your case. It is also a necessary foundation to conduct an effective examination of a defendant medical expert. A lawyer who is comfortable discussing the science with independent experts is an invaluable advantage for you in your case.
At Siskinds, our medical malpractice team has a well-established science background and routinely liaises with independent experts to better understand your case and better serve your interests.
Ability to take the case through to trial
Some lawyers may be willing to take on a potential medical negligence case for only the investigation and settlement negotiation stages. If your case has a reasonable chance of success at a trial, but a settlement is not able to be negotiated, they may be unwilling to proceed to trial and will recommend you find a different lawyer to be your trial counsel.
It is vital for you to have a lawyer that can represent you throughout every step of the action, including at trial.
At Siskinds, our medical malpractice team has considerable trial experience with the confidence and skill to advance cases to trial, should a trial be recommended. In fact, our counsel is comfortable and experienced going forward all the way to appeal, if necessary.
Many medical malpractice lawyers may require an initial financial retainer to offset some of the costs of investigating the merits of case, primarily the cost of obtaining expert opinion reports.
After the investigation has been completed, if it is recommended that you proceed with the case, the matter will usually proceed on a contingency fee basis (i.e. you would not pay anything to your lawyer above the initial retainer fee unless you were successful at trial or there was a settlement).
At Siskinds, our contingency fee operates under a graduated fee structure, where the earlier the case is settled, the lower the fee to you. You can read more about our contingency fees and frequently asked questions here.
The lawyer client relationship
Even in the best of hands, medical malpractice actions are complicated, expensive, and can take years to reach a resolution. The lawyer you pick to represent you could be a part of your life for half a decade or longer. Choosing a lawyer with experience, knowledge of the issues, the ability to represent you through the whole case, and with a fee structure you can live with is invaluable. To successfully manage your case, you need a trusting and respectful relationship with a lawyer whose values align with you and your family.
At Siskinds, we strive to do the best for our clients, and do everything in our power to ensure your case is expertly handled in a manner such that you and your loved ones feel heard and supported throughout the litigation process.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.