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What kind of case do I have? How getting it wrong could keep you from recovering

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by Dana Brooks Cooper

While you may think the type of claim you have is obvious, it may not be so clear under the law.  There are times when the same set of circumstances can give rise to numerous different legal claims.  And, the law requires a claim to be filed under a particular legal theory, governed by specific rules, the most important of which is the deadline for filing the lawsuit.  In those cases, if you miss the filing deadline, you do not have the option of simply pursuing a different legal theory.  If you don’t file the claim the correct way within the prescribed time limits, you’re just out of luck.

A common area of confusion is whether a case must proceed under the strict rules and shortened timelines of a medical negligence (malpractice) lawsuit or if the claim can be brought under general negligence.  So what should you do if you slip and fall in your doctor’s office?  What if a light fixture falls on you while accompanying your aunt to the bathroom after she gets out of surgery?

One argument is that those cases should proceed under medical malpractice because the at-fault parties are healthcare providers.  The other argument is that this is simple negligence that just happened to occur in a healthcare setting as opposed to an apartment complex or shopping center.  Why does it matter, anyway?  What difference does it make?  As it turns out, correctly identifying the type of claim you have could determine whether you’re made whole by the wrongdoer or stuck paying the price for his carelessness.

If a case is determined to be a medical malpractice claim, it must be filed within two years of when you knew, or reasonably should have suspected, the injury was caused by malpractice.  By contrast, if the case could be brought under a theory of general negligence, such as products liability, premises liability, auto negligence, etc., the injured person would have up to four years from the date of injury to bring the claim.  That is why it is important to contact an attorney right away if you have been injured in a medical setting.  You may have to bring the claim under medical malpractice and those cases take several months to investigate prior to filing the claim.

To determine whether your injury is medical negligence or general negligence, a well-trained, experienced personal injury attorney will look to the facts.  The following factors are considered in totality with none of them being individually dispositive:

  • Where did the injury occur?
  • What was your purpose in being there?
  • What caused the injury?
  • Was professional judgment or skill required?

Where did the injury occur?  If you are hurt by slipping on blood outside an operating suite while visiting your husband in the hospital, or on a puddle of melted ice while walking down the hall to the MRI machine, your injury obviously occurred within a medical facility.  But what if you tripped over a root in their parking lot and they rent that property from a non-medical provider and use subcontractors for plant maintenance?

What was your purpose in being there?  If you were there seeking or receiving medical care, the case is more likely to proceed under medical negligence, with the shortened deadline for filing the lawsuit.  But if you are accompanying your aunt for her colonoscopy and the television in the waiting room falls on your head, it’s more likely to be a general negligence case.

What caused your injury?  Even if your injury occurred in a medical setting, it could have been caused by another party.  A patient walking along the sidewalk leading into the hospital who falls through a hole because a third party contractor failed to secure a construction site may be able to proceed in general negligence against the contractor.  A patient receiving a contaminated medication during a surgical procedure may have a claim against her healthcare providers or the companies that manufactured the product and put it into the stream of commerce.  An investigation of the facts will determine whether an aspect of the claim must meet the additional requirements of a medical malpractice case.

Was professional judgment or skill involved?  It was once thought that if a person was injured at the hands of a medical professional, the case should proceed as a malpractice claim.  That is no longer assumed.  In the case where the patient received a contaminated medication during surgery, the appellate court held that his claim should proceed under general negligence rather than medical malpractice because the gravamen of the complaint was not whether the patient should have been given the medication in the first place, it was the hospital’s failure to have a system in place to identify and remove tainted/recalled products from its inventory, a ministerial function that did not require professional judgment or skill.

The truth is, most people don’t want to sue anybody.  When they get hurt, they hope to heal up fast, not miss much work, and get back to normal as quickly as they can.  If that happens, they usually never consider a lawsuit, which would be our advice under those circumstances.  But when a person is injured through someone else’s carelessness and they don’t bounce right back, they lose jobs and substantial income.  If they lose weeks, months, and sometimes years of quality living because they hurt all the time, or are worn out from hurting so badly for so long, then it’s time to contact an attorney for the accountability and justice you deserve.  Depending on the type of case you have, you may need to act sooner rather than later.  If you don’t bounce right back, and you fear your claim may fall under medical malpractice, you should consult an experienced medical malpractice attorney right away to preserve your legal rights.

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