Medical Malpractice: Do's and Don'ts of Proving Your Case

Johns Hopkins made a shocking discovery this year: Medical errors are now the third-leading cause of death in the United States, after heart disease and cancer. Preventable medical errors have greater public awareness than ever before. As a result, more people may be seeking compensation for their suffering and wondering how they can prepare the best possible medical malpractice case they can.

There are many common misconceptions surrounding medical malpractice. While most people associate medical errors with a disastrous mistake made during surgery, most medical malpractice suits involve some form of miscommunication, whether it is an improper dosage of medication or key patient information lost during a patient transfer or shift handoff. In fact, in the past five years, 30 percent of medical malpractice cases contain miscommunication as a factor, according to a medical malpractice study.

The onus of proof is on the plaintiff to prove injury, and it can be difficult to show the clear distinction between bad outcome and negligent care, or prove instances of miscommunication between medical professionals. Here are some things to do, and not to do, in order to prove your claims that the treatment you received was inadequate or negligent.

Do Document Everything

Keeping careful records of the medical error incident is key. “Pictures, pictures, pictures. A picture is worth a trillion words,” explained Morgan & Morgan attorney David V. Dufour, Jr. “Record names if you think something has gone wrong. Record your impression of what is going on.”

Extensive photographic evidence goes far in improving the chances of a case, whereas a case that relies solely on clinical language of medical records has a harder time swaying the jury. An accurate timeline of events and treatment is also very helpful for patients to record.

Don’t Overshare

If you are thinking of pursuing a medical malpractice case, do not disclose this information to your medical professionals, unless prompted to by your lawyer. Also, be sure not to overshare details of your case to friends or on platforms such as Facebook or Twitter. A photo or statement posted on social media, even if intended to be shared privately, could end up damaging your claim, so be cautious.

Do Get Your Medical Records

While photographic evidence is one of the strongest forms of evidence a patient can bring to court, it is still important to hold on to documented medical instruction for post-treatment care, prescriptions, and any other medical records that could show negligence or a failure to provide proper instructions after a procedure.

Be sure to obtain all medical records from your treatment. A hospital is legally required to keep all patients’ records for at least a few years after treatment.

Don't Sign Any Waivers

When you pick up your medical records, be sure not to sign away your rights. Even if you are not to disclose your suspicions of malpractice with your medical professionals, there is still a risk of being ask to sign a waiver of a right to sue. Do not sign anything without consulting with your medical malpractice attorney.

Do Act Quickly

Contact an attorney as soon as you suspect something has gone wrong.

“People view medical professionals as unquestionable,” Dufour says. However, you should trust your instincts if something does not feel right. Medical professionals are people too, and even the best doctor could make a mistake that might cost someone dearly, so it is important not to second guess your decision to contact an attorney if you think something is wrong.

Expediency is especially important in the case of photographic evidence, as you want to record any instances of bodily harm as quickly as possible. Also, depending on the state you reside in, the statute of limitations could severely impact your timeline of pursuing a medical malpractice suit. Most states fall in statute of limitation range of one to three years, so time is of the essence for patients considering medical malpractice.

Don't Choose Just Any Attorney

In their haste to find a professional and pursue a medical malpractice case, patients might be tempted to just hire any personal injury attorney. While many attorneys have some experience with medical malpractice cases, it is a deeply complex legal field that requires the attention of a lawyer with extensive experience litigating such cases.

“The best thing you can do is to speak with a trained medical malpractice attorney.” said Morgan & Morgan attorney Ty Smith. “Get the right lawyer. There are a select few that are the right experts for the case.”

If you or someone you love has been hurt or killed by a medical error, you can seek compensation for your suffering. Our medical malpractice attorneys can help. Read more to learn about the types of medical malpractice and the damages you can seek.