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If you followed our earlier blog posts, you should know what constitutes medical malpractice and whether you were a victim. If you think you have a legitimate complaint, the next blog posts will tell you how to assert your legal rights and obtain compensation for medical malpractice.

Compensatory Damages

If you have been injured by someone’s negligence, the law gives you the right to compensation. Bringing a medical malpractice lawsuit against a doctor or a hospital is not being vindictive but simply seeking what is legally and rightfully yours for the injury you have suffered. In fact, the law calls awards for malpractice Compensatory Damages, which means just what it says. They are meant to compensate you for the losses you suffered through a doctor’s or hospital’s negligence.

Loss Allocation

Before 1949 many workers, who were injured on the job, received nothing to compensate them for their injuries. If a worker suffered an injury that made it impossible to work, his or her family was reduced to poverty. After 1949 all states had workers’ compensation laws. Employers in each state paid into a fund that took care of injured workers. It paid their medical expenses, rehabilitated them, and paid a pension if they were permanently disabled. The employer pays contributions, as a cost of doing business, whether his employees are injured or not. It is a way to help people, who have been injured through no fault of their own. It is what lawmakers and lawyers call Loss Allocation.

Today, medical malpractice insurance is considered a Loss Allocation like workers’ compensation. It is no more an insult to ask a doctor for compensation for medical malpractice than to ask your employer’s workers’ compensation to compensate you for injuries you receive on the job. A doctors’ textbook on medical malpractice defense advises them to carry adequate malpractice insurance because: “Accidents do happen, and patients do get injured. So it is only humane that funds be available to compensate the victim of your mistake.”

Thousands of patients suffer, due to malpractice, and do not get the compensation they deserve. If you are malpractice victim, or your client is a malpractice victim, contact JD.MD, Inc., today at 800-225-5363. We can provide you with a Comprehensive Screening Report, an initial case evaluation, by a qualified medical reviewer.

The courts in each state decide how much probability you have to show in order for the judge to let the jury decide your medical malpractice or dental malpractice case. In some states, you have to show that it was more likely than not (better than a 50% chance) that you would have gotten a different result. Other states only require you to show the malpractice was a substantial factor in producing the bad result and leave it up to the judge to decide what a substantial factor is in each case. In some states, you only have to show there was a remote possibility of a better result in order to get to the jury. A Texas lady won a case when she showed that she suffered anxiety because of a remote possibility of cancer resulting from a burn, and a Virginia man won a verdict for failure to diagnose his cancer of the esophagus, even though his chance of survival with the best treatment was only 9%.

The Rule Is: Your medical expert witness or dental expert witness should be able to testify that it is more likely than not (better than 50%)  you would have received a better result, if you had not been the victim of malpractice. But, the Loss-of-Chance Theory only applies to the effects of malpractice and does not relieve you of the obligation of showing that the doctor committed a departure from good and accepted practice.

How Does This Affect Your Award?

While the possibility

that your injury was due to other factors probably cannot be used as a defense by the doctor, it can be used in determining the amount of your award. For example, if the Virginia jury had decided the patient with cancer of the esophagus should get $100,000.00, the award would have been reduced to 9% or $9,000.00. If the court had decided the lady with breast cancer had only a 50% chance of success with early treatment, she would have received 50% of the award. Theoretically, the court will adjust the amount of the award in proportion to the probable effect of the malpractice on your injury.

In real life, it is rare for a jury to reduce the amount of its award much if the doctor was only 50% or 60% liable. As already explained, many courts and jurors see malpractice awards as Loss Allocation, which is another way of saying that they use whatever funds  available to help people, who have been injured or suffered a serious loss through a physician’s or a dentist’s carelessness or neglect.

     
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