Medical Malpractice Cases
I try to answer questions daily on some of the “ask lawyer” internet web sites, including AVVO and LAWYERS.COM. Many of the questions posted by lay people, has to do with suing a doctor or hospital for malpractice. The questions range from the failure to properly diagnose, to delayed treatment, botched treatment, to the time line to sue. Most of the questions posted, even if accurate, wouldn’t amount to malpractice even if proven. It is not just enough that a mistake or error was made in diagnosis or treatment. The patient has to have some type of an injury as a result, and usually permanent injury or enhanced injury to even remotely make a case. The practical reasons most of these cases fail is either there was no case to begin with, the patient has waited too long and is beyond the statute of limitations, while there was arguably an error made, no injury resulted, the result would have been the same even if a proper diagnosis or treatment had occurred, there is no causation between the error and the injury, or whatever the mistake or error that was made, did not result in any type of long term injury or disability.
Personal injury lawyers shy away from medical malpractice cases for these very reasons. These cases are exceedingly difficult to pursue and win in Wisconsin, and under the statute, there are caps to damages. 9/10 medical malpractice cases are lost at trial. Insurance companies who defend physicians and hospitals, refuse to pay anything on the cases by way of settlement and the patient is forced to take the case to trial. It can cost a malpractice lawyer $100,000 in costs and out of pocket expenses to pursue a medical malpractice case. The number of medical malpractice cases has diminished dramatically over the years.
So, with the cards stacked against you, what can you do if you feel strongly that you were the victim of a serious medical error? The first thing you need to do is collect all of your prior and current medical and hospital records regarding the specific medical condition you were treated for. Once those records are obtained, you will need to sit down with a personal injury lawyer who specializes in handling medical malpractice cases. They will review your records to determine if you have viable case. If they think there is something there, they will hire an outside independent medical expert in the specific field of medicine involving your medical condition, to have the records reviewed to determine if you have a case. If the expert determines you do have viable claim for medical malpractice, the lawyer will discuss that with you and what would be involved in pursuing the case.
The statute of limitations for medical malpractice in Wisconsin is three (3) years from the date of the occurrence. Failure to start a lawsuit within 3 years would forever bar the claim. While there is a ‘discovery’ exception, the maximum cap is 5 years from the date of the occurrence. Check out my previous blogs that from last year where I wrote several extensive articles about the difficulties of pursuing a medical malpractice claim in Wisconsin.
For more information about this article, contact Karp & Iancu.