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Frequently Asked Questions
- What is malpractice?
- What is the professional “standard of care?”
- What is a “breach” of the applicable standard of care?
- How does someone prove a breach of the accepted standard of care by a professional?
- Is proving a breach of the standard of care sufficient to prove malpractice?
- Does a bad result necessarily mean that malpractice occurred?
- What damages are recoverable in a malpractice case?
- What is tort reform?
- What is wrong with tort reform?
- In light of tort reform, will there be a limit on how much I can recover?
- What are the fees and costs associated with a medical malpractice action?
- How much will it cost me to pursue?
- When must a claim be filed?
- How long will my case take?
- What types of professional malpractice cases does Zoll, Kranz and Borgess, LLC, handle?
- Can any attorney efficiently handle a malpractice case?
- What factors will an attorney consider in reviewing my case?
- Why would an attorney decline to take a malpractice claim?
- What if I am told that I do not have a case or claim?
- Where can I get information about my physician?
- What is malpractice?
Malpractice refers to “professional misconduct” or “unreasonable lack of skill” by a professional, such as doctors, dentists, pharmacists, chiropractors, other health care providers, lawyers, accountants, architects, engineers, surveyors, and real estate brokers.
- What is the professional “standard of care?”
Professionals aren’t expected to be perfect. They are expected, however, to exercise the same degree or level of care that is exercised by other members of that profession in the same or similar circumstances. This is referred to as a duty to comply with the applicable standard of care. What standard of care applies depends on the profession or specialty of the negligent professional, as well as the fact as the case. For example, a cardiologist must exercise the same degree or level of care as that exercised by other cardiologists in the same or similar circumstances.
- What is a “breach” of the applicable standard of care?
A “breach” of the applicable standard of care, refers simply to the failure of the professional to comply with that standard.
- How does someone prove a breach of the accepted standard of care by a professional?
Usually a breach of the applicable standard of care must be proven through an expert with specialized knowledge and experience in that field or profession. For example, in a malpractice claim against orthopedic surgeon, an expert in the field of orthopedic surgery will be needed to testify that the surgeon deviated from the accepted standard of care for orthopedic surgeons.
- Is proving a breach of the standard of care sufficient to prove malpractice?
No. A plaintiff (i.e. the person asserting the malpractice claim) must also show that the professional’s negligent conduct caused harm or injury. For example, if an attorney misses a deadline or a nurse forgets to give a patient medication, but no harm results, no claim exists. Likewise, if an emergency room physician negligently fails to undertake a required step in trying to resuscitate patient, but this extra step unfortunately would not have made any impact or increased the patient’s chance of survival, no claim exists because there would be no “causation,” despite the negligence of the physician.
- Does a bad result necessarily mean that malpractice occurred?
No. Even with the best care, bad result can, and do, occur. This is why it is essential to have an expert onboard who is able to distinguish those unfortunate, but known, complications or results, from those which are a result of professional negligence.
- What damages are recoverable in a malpractice case?
In a civil lawsuit, victims seek a sum or sums of money for their loss or injury caused by the negligence of another as restitution. This sum is called “damages.” There are multiple types of damages which may be sought depending on the type of the malpractice claim and the facts of the case. Generally, in malpractice cases, both economic and non-economic damages are sought. Economic damages are quantifiable and may include out-of-pocket losses, past and future wage loss, past and future medical bills, and damage to property. Non-economic damages, on the other hand, are non-quantifiable, and may include pain, suffering, emotional distress, loss of the affection and companionship of a loved one. In certain cases, punitive damages, which seek to punish for certain egregious behavior, may also be requested.
- What is tort reform?
Tort reform refers to changes or “reform” to our civil justice system, which those who stand to profit from such changes, including large insurance companies, contend are needed. These proposed changes, many of which have now been enacted into law, seek to take rights away from innocent victims in order to financially benefit the insurance industry and big business, and protect negligent professionals. Such proposed changes include shortening the time in which a victim can file a lawsuit and reduction in the amount of money that a victim can collect, even if the jury determines that such sum is warranted.
- What is wrong with tort reform?
First and foremost, tort reform is wrong because it puts profits over people, and undermines the constitutional right to a trial by jury. Secondly, tort reform is based on unproven allegations and scare tactics purported by those who stand to benefit financially. These unproven allegations and scare tactics include claims that doctors are leaving their practices because they can’t afford insurance, that frivolous lawsuits are causing malpractice insurance rates to skyrockets, that limiting the lawsuits by injured patients will solve the problem of skyrocketing malpractice insurance rates, that jury awards are out of control, and that limits malpractice lawsuits will make health care more affordable for patients. For easy to read commentary exposing the falsity of these claims and the harm of tort reform, we recommend the Center for Justice and Democracy website and the “People Over Profits” website.
- In light of tort reform, will there be a limit on how much I can recover?
Depending on the facts and type of claim, caps may be imposed on certain categories of damages, such as non-economic damages. An attorney who practices in this area should be able to determine whether caps are applicable to your case.
- What are the fees and costs associated with a medical malpractice action?
Malpractice cases are not only complex and time consuming, but they are extremely expensive. The defense vigorously defends these cases. As such, top-notch expert testimony of various professionals is required. These experts are usually located out-of-state, as local professionals are understandably reluctant to testify against their local colleagues. These cases also require filing various documents, ordering and copying a number of records, conducting multiple depositions across the country, and engaging in a great deal of trial preparation. For example, it is not uncommon for an attorney who is properly preparing a medical malpractice case for trial to spend $25,000 to $100,000 just to get the case to trial.
- How much will it cost me to pursue?
Our initial consultation is free. As with most malpractice attorneys, we take malpractice claims on a forty percent contingency fee. This means we do not request any out-of-pocket money from our clients in order to purse the case. If no recovery is obtained, the client pays nothing and we bear all of the costs incurred in pursuing the case. If a recovery is obtained, costs are reimbursed and the contingency paid.
- When must a claim be filed?
The law requires that claims must be filed within a certain period of time. If the claim is not filed within that timeframe, the claim is forever barred. This is referred to as the “statute of limitations.” The statute of limitations depends on the type of malpractice claim and the facts of the case. Because there are many nuances, exceptions, and various statues governing the statue of limitations for a particular claim, (which can often run as quickly as one year from the date of the malpractice), an experienced attorney should be consulted at the first suspicion of
malpractice to ensure that the claim is timely filed.
- How long will my case take?
Because most malpractice cases are vigorously defended, they often take years after any appeals are exhausted.
- What types of professional malpractice cases does Zoll, Kranz and Borgess, LLC, handle?
We have experience litigating all types of professional malpractice cases.
- Can any attorney efficiently handle a malpractice case?
No. A client is best served by hiring an aggressive civil litigation attorney who has experience in this complex area of law.
- What factors will an attorney consider in reviewing my case?
An appropriate review includes first understanding and assessing the relevant facts and history from the potential client. Based on this information, an attorney may or may not be able to give an opinion as to whether the facts state a claim for malpractice, whether the claim is financially justifiable, and/or the degree of risk or likelihood of recovery. An attorney may then choose to obtain and review the medical records and send them for review by an expert.
- Why would an attorney decline to take a malpractice claim?
An attorney may choose not to pursue a malpractice claim for various reasons, the most obvious being that the facts do not state a claim for malpractice. However, because an attorney will often spend years of his or her time pursuing a malpractice case and tens of thousands of dollars, an attorney may also believe that the chance for recovery is too small or remote and as such, is not financially justifiable.
- What if my case is declined?
You are free to contact another attorney for a second opinion. This is particularly important as attorneys often have varying perspectives as the degree of risk they are willing to assume in any certain case.
- Where can I get information about the professional providing services to me?
Regardless of whether or not you believe you have a claim for malpractice, it is always appropriate to be informed as to the education, qualifications, complaints, and/or disciplinary actions, if applicable, of the professional providing services to you or your loved ones. There are a multitude of Internet resources which allow you to obtain this and other relevant information concerning various professionals, many which are listed on this website under relevant links. For example, a good starting point is conducting a license search at:
https://license.ohio.gov/lookup/default.asp.
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