How Medical Malpractice Claims Work & What You Should Expect

When facing a possible medical malpractice claim, you may feel overwhelmed. By educating yourself on the basics of medical malpractice, you can be better prepared to ask the right questions and find out whether making a claim is the right choice for you. 

What is Medical Malpractice?

Medical malpractice is the legal term for situations in which a healthcare professional has caused injury or death to a patient by not following the standard of care. 

Not every injury or harm to a patient gives rise to a medical malpractice claim. Even when a doctor does everything correctly, sometimes a treatment or procedure can fail or have complications. A medical malpractice claim is only possible when the healthcare professional fails to take any action that was required under the standard of care or takes an action that was not allowed under the standard of care.

What is the Standard of Care?

The standard of care is the treatment or treatments that are commonly used and accepted as appropriate for a specific condition or disease by the average doctor or medical professional.

Healthcare professionals include doctors, nurses, dentists, physical therapists, and anyone else trained to work in a health-related field.

3 Things to Know Before Pursuing a Medical Malpractice Claim in South Carolina

Medical malpractice is a complicated area of law, and professional legal help should be consulted. There are specific legal requirements and limitations on these kinds of claims that you should be aware of.

  1. Statute of Limitations for Medical Malpractice

A statute of limitations is the time limit in which you must file a lawsuit after the incident that led to the lawsuit taking place. If you fail to file your lawsuit within this time, it will be barred, and you will be unable to pursue any kind of claim.

The statute of limitations for medical malpractice claims in South Carolina can be as short as two years against a government entity and up to  three years against a private physician or provider. That may sound like plenty of time to file a lawsuit, but it can be very limiting. It’s not unusual for it to take a considerable amount of time to discover that a health procedure has gone wrong. You may then spend time receiving treatment and recovering. 

Then, after you decide to pursue a claim, it can take some time to find a lawyer and put the case together. Because of this, if you think you may have a medical malpractice claim, you must talk to a lawyer sooner rather than later. You don’t want to miss your chance to be  compensated for your injuries simply because too much time went by.

     2. Procedural Requirements 

In South Carolina, there are a few legally required procedural steps that your attorney must take before you are allowed to move forward with your medical malpractice case. These steps are strictly required, and if handled incorrectly, your claim could be barred.

Before filing a lawsuit, you must send a “Notice of Intent to File Suit” to every healthcare provider you might consider including in the lawsuit. There are specific legal requirements for the notice, including a list of all involved healthcare providers and a description of the basis for your claims.

You are also required to have a medical expert witness, usually another doctor, prepare an expert affidavit to be filed with the court. This affidavit must state that your healthcare provider was negligent in at least one action or inaction.

Finally, within four months of the Notice of Intent and of filing the expert affidavit, you are required to go through a mediation conference with the named medical providers. This is intended to help you resolve the dispute before a lawsuit is filed.

    3. Damages Cap

South Carolina, like many other states, has a cap on the damages you can be awarded in a medical malpractice lawsuit. Generally speaking, you are entitled to be compensated for your direct expenses from the injury as well as your “non-economic” damages. Direct expenses, or economic damages, include past and future medical expenses and lost earnings. Non-economic damages include pain and suffering and loss of enjoyment of life. In South Carolina, your non-economic damages are capped per healthcare provider or facility and in aggregate total against all healthcare providers or facilities. A lawyer can explain these damage “caps” to you. 

How Can a Medical Malpractice Lawyer Help You?

Medical malpractice lawsuits are complicated to pursue. A medical malpractice attorney can help you pursue your claim and give you the best chance of success by:

  • Gathering all the required evidence
  • Figuring out how to properly calculate your damages
  • Finding the right expert witness
  • Ensuring all notices and other legal hurdles are taken care of
  • Negotiating with insurance
  • Representing you in court

With a good medical malpractice attorney on your side, you can gain peace of mind and focus on healing from your injuries, while the details of your claim are handled for you.

If you or someone you love has been injured or killed due to medical malpractice, KD Trial Lawyers may be able to help.

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