By: Jonathan J. Wade

Medical Malpractice Practice Area

More people are injured or killed each year by medical errors, more commonly known as medical malpractice, than in car wrecks. Despite this fact, most potential medical malpractice claims are never made. Initiating and prosecuting a case of medical malpractice in Georgia is a an intricate and complicated endeavor. The following is an overview of a medical malpractice claim in Georgia with an emphasis on potential pitfalls for an unsuspecting injured patient or practitioner.

ELEMENTS OF A CLAIM

Medical malpractice liability in Georgia consists of three essential elements. First, there must have been a medical error made (deviation from the standard of care). In other words, the medical provider(s) must have done, or failed to do, something contrary to what any reasonable medical provider should have done in that situation. Second, there must be significant damages to the patient due to the error. Third, as implied above, there must be a direct relationship (proximate causation) between the alleged negligence and the significant damages.

SECURING A CLAIM

These elements require an expert opinion. Specifically, a medical provider from the same specialty must testify that the treatment was substandard, and that the failure caused the patient's injury. Absent virtually non-existent circumstances, the expert's affidavit must be attached to any lawsuit filed. The absence of such an affidavit is generally grounds for dismissal of the lawsuit.

As a result, a significant amount of time and energy needs to be devoted at the very onset of a case. The lawyer should have medical staff available to analyze and advise whether the medical records show the existence of all of the elements liability. Experienced medical malpractice attorneys should have medical professionals on staff or readily available to review such records.

Extensive medical research is also often needed by the attorney. There are countless databases and sources of medical information and legal case law that are not commonly known by attorneys who do not perform a good deal of medical malpractice work. Law firms that are versed and knowledgeable in the field will be able to provide answers much more quickly. These types of firms will also have a vast database of experts who are qualified to give opinions on the particular medical error suffered. Identifying the claim and securing the most qualified and respected medical expert to support the claim is the most important aspect of any claim. Without achieving this initial goal the case will never get to court.

Medical malpractice cases are extraordinarily expensive and time consuming. It is not unusual for a case to conclude with several years of work and tens of thousands of dollars in expenses. Expert opinions and affidavits, cost a great deal of money. In addition, there are often multiple sources of medical records and research that must be analyzed word by word. A single symbol or a single letter can be critical. As such, all of the medical records must be obtained and carefully reviewed. This oftentimes includes obtaining medical records going back many years.

A medical record has sometimes been altered or changed after the fact. This can dramatically change the case, but is often extraordinarily difficult to determine. It again requires a close eye and experienced familiarity with how the various parts of the medical records overlap and rely upon each other.

FILING THE COMPLAINT

Lawsuits must be filed within certain time periods or the case can never be brought at all. These are commonly referred to as statutes of limitation. There are multiple significant rules pertaining to statutes of limitation in medical malpractice cases. The type of case, the age of the injured patient, the type of medical provider involved, where the case happened, the type of injury, and many other factors can affect which statute of limitation is applied. This again requires an experienced lawyer who is familiar with the intricacies of medical malpractice law. Because medical malpractice claims are against the medical provider's professional work, they are vigorously contested. A lawyer must be prepared for this, and must have a reputation for being willing and able to try a case, as the defense will neither settle nor deal in good faith with the inexperienced lawyer.

WORKING OF THE SUIT

Once a lawsuit has been filed, there is typically a period of what is referred to as legal discovery. This can take many months to do properly. Discovery consists of sending out written questions (interrogatories), requests for documents (requests for production of documents), and requests between the parties that they admit or deny certain facts (requests for admissions). Additionally, the discovery period is when the parties are permitted to take the sworn statements (depositions) of people having relevant knowledge. This virtually always includes the injured patient and their family, the medical provider or providers, and the parties? experts. The discovery process can be critical to the ultimate outcome. Not having an attorney who knows what to look for to best present the claim can lead to a dismal result for the patient.

Successfully prosecuting a claim for medical malpractice is a complicated area of the law. It requires excellent knowledge of general medical principles, close analysis of documents and their significance medically and legally, a keen understanding of human nature, and a significant expenditure of professional, staff time, and expense. It further requires that a lawyer be highly competent in the law of evidence, civil procedure, and excellence in trial practice technique.

Before you hire an attorney to present a claim for medical malpractice, make sure he or she is qualified to take the case through all of the phases outlined here and has the necessary resources and experience to provide you the best representation possible.

The information for this article was received from independent research on the part of the author. All information is based solely upon the law of the State of Georgia and does not apply to any matter outside of Georgia. This article is not intended to create, and receipt of it does not constitute, an attorney-client relationship. The law is constantly changing, additional facts or future developments may affect subjects contained herein and no guarantee is given that the information provided is correct, complete, or up-to-date. Seek the advice of professional counsel before acting or relying upon any article, form or information in this web site.