Faq’s

This is a question that we are often asked and the answer is that it is impossible to know how long it will take to resolve your case without reviewing your claim and conducting a factual investigation. Even after our review and investigation, we may have a better idea of the length of time that may be involved, but we still will not be able to give you a definite timeline. There are many factors that can affect the length of time it takes to resolve a medical malpractice claim.

• The strength of case – Insurance companies and defendants may want to settle faster if they know that you have a solid case. They may not want to take the risk of a large jury verdict in your favor. In these cases, if they agree to a fair settlement that fully compensates the plaintiff, the case will likely settle quickly. If it is a weak case, they will probably prefer to take it to trial unless you are willing to accept a very small payout because they just want to make the case go away.
• Injuries – If your case requires an independent medical evaluation (IME) and your injuries are severe, especially if you are going to need long-term medical care, your case will most likely take longer. If your medical issues are complex, your case may require more expert witnesses and more investigation, which will, of course, take longer for the case to resolve.
• How much investigation needs to be done – Many things are involved in conducting a medical malpractice investigation including reviewing medical records, serving discovery, taking depositions, and hiring medical experts. In other cases where there is not a lot to be investigated, the case will move more quickly. Cases that do not require a lot of investigation may not involve complicated medical issues and the negligence and resulting injuries may not be heavily disputed. For example, a case in which the wrong limb is amputated or a surgical item is found inside the plaintiff’s body, the investigation is going to be less time consuming which will move the case along more quickly.
• Witnesses – The case will last longer if there are a lot of expert witnesses involved in the case because all of those witnesses will be deposed and give testimony at trial.
• Multiple defendants – If there are multiple defendants, and they’re often are in medical malpractice cases, the case will take longer to resolve.
• Settlement – Obviously if you settle, your case will be resolved sooner than if your case goes to trial, but you never know when a case will settle. Sometimes it will settle early before you even have to file your claim. Sometimes a claim will settle midway through trial preparation or sometimes settlements will happen as late as right before or during the trial.

Under federal and Pennsylvania law, you have the right to obtain your medical records following your request. What you may already know if you have attempted to get your records is that medical offices are often reluctant to provide your records to you even though they are obligated to give them to you in most cases. Our clients often report delays and refusals to furnish their medical records. We have had to help many clients obtain their medical records from medical offices. You have a right to your records and you should exercise that right if you want to see them.

You may request your own medical records, of course and typically you are entitled to obtain medical records for other people in the following circumstances:

• Request for your minor child
• Request on behalf of someone if you are their personal representative
• Request the records for a deceased person if you are the certified executor or administrator of his or her estate

There are some limited exceptions under which your medical provider may deny your medical records request such as denial of request if the information you are gathering could endanger you or another person. A medical provider may not deny your request due to unpaid medical bills. If your medical provider denies your request, you may request that another medical provider review the decision to deny your medical records request.

If you have been denied medical records requests, you may file a complaint with several government offices including the Department of Health and Human Services and the Office for Civil Rights. On the other hand, it is more paper work and waiting for you to obtain something that you are entitled to in the first place and filing a complaint does not mean that you are going to end up getting your medical records.

So you believe or suspect that you have been injured as a result of medical malpractice, but you are not sure you can prove it. The thought of trying to prove medical malpractice unfortunately keeps many victims from bringing medical malpractice claims. The truth is, a medical malpractice victim does not need to prove his or her case because with your cooperation, it is really up to medical malpractice attorneys and expert witnesses to prove your case.

The following elements must satisfied to prove that medical malpractice took place:

• A physician patient relationship existed
• Negligent conduct occurred, which is proven by showing that a medical professional breached the medical standard of care
• The plaintiff’s injuries were a result of the negligent conduct
• The plaintiff must have quantifiable damages for which he or she can be monetarily compensated

Often our clients come to us wondering if we can settle their case instead of going to trial. We understand that concern and we can take steps to help secure a settlement with the defendants. If your goal is to settle the case out of court, your case is strong, and the defendants are willing to negotiate, we will do what we can to avoid a trial. Depending on the facts of your case, we may be able to show solid evidence and arguments in your favor up front, which bolsters your case and may possibly move it into settlement discussions. If defendants have concerns about their legal exposure and the possibility of a large jury verdict, they may prefer to settle as soon as possible. On the other hand, if the defendants’ settlement offers are unfairly low, we will be looking out for your best interests and may advise you against settling for an amount that does not fairly compensate you. Whether your case ends in settlement or it goes to trial, our goal is to see that you are compensated for your injuries.

There is a general two-year time limit (statute of limitations) on filing medical malpractice claims in Pennsylvania, but there are many exceptions to the time limit and factors affecting when the time begins to run. If you believe you may have a medical malpractice claim, contact Philadelphia medical malpractice attorney, Eric Weitz, at The Weitz Firm, LLC to schedule a consultation. It is important to consult with an expert to determine the strength of your case and to make sure you preserve your claim because if you wait too long, you may run out of time and you will not be able to file your claim.

In Pennsylvania, the statute of limitations for a medical malpractice claim is two years after the cause of action has accrued. The cause of action accrues presumably at the time the alleged malpractice took place, but there are some exceptions to that. There are also exceptions to the two year limit, so if it has been over two years since your claim accrued seek legal advice from a medical malpractice attorney to determine whether or not you fall within any of the exceptions to the limitation.

For patients who did not know about their injuries, the discovery rule may help them get past the two-year statute of limitations hurdle. Pennsylvania’s discovery rule may extend the amount of time until two years after the injuries are discovered or until a patient reasonably is able to connect the injuries to the alleged medical malpractice. Essentially the statute of limitations does not begin to run until a plaintiff knows or reasonably should know that an injury occurred and that the injury is related to the alleged malpractice. There are also exceptions to the discovery rule, which makes seeking advice from a medical malpractice attorney necessary before you conclude that the statute of limitations has or has not run for your case.

It is impossible to answer the question of whether or not your medical malpractice case will settle out of court without reviewing the facts of your case. Even upon review of your case, there are so many factors that come into play in a medical malpractice case that there really is no way to know for sure either way. This is especially true if your attorney is committed to seeing that you are fully compensated for your injuries rather than focusing on getting a quick settlement. Some factors that may move your case towards settlement and some that may move your case away from settlement are listed below.

• Smaller claim – If your claim is relatively small, the defendants may prefer to avoid the time and expense involved in taking a case to litigation in exchange for providing a small payout to you.
• Strong case – Your attorney will review the facts of your case and conduct an investigation. He or she will likely hire a medical expert witness to review important facts and provide an opinion as to whether or not malpractice has occurred. This will help to establish the strength of your case. The stronger your case is, the more concerned the defendants may become in terms of the time and expense involved in litigating your case, and they are likely to be even more concerned about the possibility of a very large jury verdict in your favor. This may push the defendants to settle the case for a fair amount.
• Limited medical malpractice cap on jury awards – Some states have strict monetary caps on medical malpractice recoveries, but Pennsylvania is not as strict. Plaintiffs are not limited by a cap on recovery for compensatory damages such as lost wages, pain and suffering, and medical bills. Punitive damages are harder to get in Pennsylvania and those are capped at two times the amount of compensatory damages awarded to the Plaintiff. Again, if you have a strong case and combine that with Pennsylvania’s somewhat limited monetary caps, the defendant may prefer to settle rather than take the risk of a large jury award.

There may be one party that is responsible for medical malpractice or there may be several. Many medical malpractice cases involve more than one defendant and part of concluding a case at trial is determining liability. For example, you may have three defendants, and a jury finds that one is 50% responsible while the other two are each 25% responsible. Part of what makes medical malpractice cases difficult is that when multiple defendants are involved, there can be a lot of blame shifting and arguing which can cause even greater confusion about what actually happened to the plaintiff and who or what caused it to happen.

Medical malpractice occurs when a medical professional’s negligence causes injuries to a patient. In order to prove medical negligence and causation, your attorney will conduct a thorough investigation to gather evidence supporting a medical malpractice claim.  The following elements must be satisfied to prove medical malpractice occurred:

• A medical provider and patient relationship must have been established. This relationship is fairly simple to prove in most, but not all cases. In many cases, it is simply a matter of showing that the patient was under the doctor’s care or consulted with a doctor during a medical appointment.
• Negligence must be proved. Negligence exists when the medical professional breaches the medical standard of care. The standard of care is basically whether or not the medical professional exercised the care, skill, and competence that would be exercised by his or her medical professional peers.
• The plaintiff must prove that the negligence caused his or her injuries.
• Finally, the plaintiff must show that he or she has quantifiable injuries that can be compensated for economically.

Common malpractice cases include misdiagnosis, improper prescription, failure to review patient’s medical history, surgical errors including operating on the wrong body part or leaving a foreign object inside the plaintiff’s body, and failure to recognize symptoms. Anesthesia injuries and child birth injuries are among the most common malpractice injuries.

Medical malpractice cases are complicated. There are many factors and variables that affect the strength of the case and the likelihood of recovery. For these reasons, most people hire a medical malpractice attorney who is an expert in medical malpractice claims to represent them. Besides the fact that medical malpractice cases are complicated, see below for additional reasons to hire a lawyer to handle your claim.

You may not think your medical malpractice case is that serious, but you also may not be aware of the extent of your injuries right now. Injuries that start out feeling small often end up being much greater than initially thought. Yes, you should hire an attorney to at least review the facts of your case and discuss potential recovery options.

Medical malpractice attorneys understand how claims are valued. Valuing a medical malpractice claim goes beyond adding up medical bills and calculating lost wages. Compensatory damages include medical bills and lost wages, but they also include things like pain and suffering, loss of future earning capacity, loss of consortium, and disability.

Misdiagnosis can be medical malpractice in some cases, but not in others. There is more required than simply showing that your doctor misdiagnosed your condition in order to have a medical malpractice claim. In order to prove medical malpractice, you must prove that negligence caused your misdiagnosis and resulting injuries. So a misdiagnosis is only considered medical malpractice if negligence was involved and an injury occurred as a result.

Two of the most important elements in a medical malpractice claim are negligence and injury causation.

• Negligence – In order to prove negligence, you have to show that a medical professional breached the medical standard of care when he or she misdiagnosed your condition. Standard of care is based on the skill and care that other medical professionals in the same practice area with similar education and knowledge would have exercised in that situation. Essentially, did your doctor’s conduct and misdiagnosis conclusions depart from acceptable medical practices?
• Causation – Just because you have proven negligence does not mean you are home free. You must then be able to link your injuries to that negligence. Were your injuries caused by your medical professional’s negligent misdiagnosis? Or you can ask, if the negligent misdiagnosis had not happened, would you still have sustained your injuries or would your injuries have been less severe?

If you can show that a medical professional’s misdiagnosis was negligent and you were injured as a result of that misdiagnosis, you may have a medical malpractice case. If you believe you may have a medical malpractice case due to a misdiagnosis, contact Philadelphia medical malpractice attorney, Eric Weitz, to schedule a consultation. Our medical malpractice team has spent more than 25 years working to see that medical malpractice victims and their families are fully compensated for their injuries and damages.

Common medical malpractice defenses raised by defendants include the following:

• Missing medical malpractice element – As mentioned above, negligence and injury causation are two elements that must be present to have a medical malpractice claim. Additional elements are that a doctor-patient relationship existed and that a plaintiff sustained actual quantifiable damages due to the medical malpractice. If any of the four elements are missing, the defense will argue that medical malpractice did not occur.
• The statute of limitations has run – In Pennsylvania the applicable statute of limitations for a medical malpractice claim is generally two years, but there are many exceptions to the two-year rule where a plaintiff ends up with longer than two years to file his or her claim. You should consult with a medical malpractice attorney before concluding that the statute of limitations has run in your case.
• Comparative negligence – The defendants may argue that even if they were negligent, the plaintiff was negligent as well. Comparative negligence is not a complete bar to a medical malpractice claim unless the plaintiff is found to be more than 50% at fault.

In some cases, you may sue for what might have happened during a medical procedure and in some cases, no. The real question here is whether or not you are going to be able to prove that you sustained injuries as the result of negligent conduct during the procedure. Proving medical malpractice can be difficult, especially in cases where you do not know exactly what happened, but with a medical malpractice attorney’s investigation and expert witness opinions, proving medical malpractice may be a possibility.

There are four elements that need to be satisfied in order to prove medical malpractice.

• The first is establishing a physician patient relationship. Since we are talking about a medical procedure, it should not be hard to establish that a physician patient relationship existed.
• The second is showing that negligent conduct occurred. Negligence exists when a defendant medical professional’s conduct breached the medical standard of care.
• The third element focuses on establishing that the plaintiff’s injury was caused by the negligent conduct.
• The fourth element requires that the plaintiff sustained actual, quantifiable damages.

A medical professional’s duty of care does not begin when the procedure begins and it does not end when the procedure ends. Negligent conduct may occur before or after a procedure as well as during the procedure. Patients need to be informed of procedural risks and alternatives before deciding to have the procedure. They also need to follow up care after the procedure to ensure that they are adequately recovering and healing, and to make sure that they do not suffer any post-procedure complications.  See below for examples of negligent conduct that can occur before or after a procedure:

• Performing an unnecessary procedure – A case for medical malpractice can be made when a medical professional performs an unnecessary procedure and a patient is injured.
• Failure to discover or delayed discovery – When a post-surgery complication arises and a medical professional negligently fails to discover the complication or discovers the complication after he or she should have reasonably discovered it and the patient is injured, a case for medical malpractice can be made.
• Failure to inform patient – A patient should be fully informed of the risks and any alternative treatment before agreeing to a procedure. If the patient is not informed, he or she was not able to make an informed decision in electing to go through with the procedure. An injury resulting from the procedure may be enough to make a case for medical malpractice.
• Failure to properly treat – A medical malpractice case exists when a post-procedure complication is discovered, but not properly treated in accordance with the medical standard of care and as a result, the patient is injured.

We are often asked that question and the answer is always the same, you really cannot have any expectation when it comes to your medical malpractice claim. There is no way to know how much money you may receive from your medical malpractice claim because there are too many variables. When you hire a medical malpractice attorney, he or she will conduct a fact-gathering investigation of your case including a focus especially on evidence of medical negligence and the extent of your injuries and damages. Only after this investigation will you and your attorney be able to discuss numbers for your case and even then, those numbers are not guaranteed. Although your medical malpractice award cannot be guaranteed, the amount of your award is heavily influenced by a few very important factors listed below.

• The extent of your injuries and damages – As you would expect, the greater your injuries and damages, the greater your recovery will often be. If you were injured as a result of medical malpractice, you deserve to be fully compensated for your injuries and greater injuries and damages mean the dollar amount to compensate you will be greater.
• The strength of your case – The stronger your case is, the more likely you are to receive full compensation. If there are questions about whether or not the medical professional's conduct was negligent or the negligence caused your injuries, the defendants will use that to negotiate a smaller settlement or a jury may award less money because they are not entirely convinced by your case.
• Solid defenses – If the defendant has any solid defenses, your recovery will probably be less. Medical malpractice defenses include things such as your conduct made your injuries worse, you could have mitigated your injuries, or the statute of limitations has run.
• The egregious conduct involved – If a medical professional's conduct goes beyond medical negligence to egregious conduct, punitive damages may be awarded.
• Whether the case is tried or settled – A case's settlement value will be lower than a trial value, especially if the case settles early, before too much time and expense has been invested in the case.

In order to be fully compensated for your injuries, you may seek recovery for damages including medical bills (past, ongoing, and future), lost wages, lost future earnings and benefits, loss of consortium, pain, and suffering, and emotional distress.

Prior to medical procedures patients are often required to sign consent forms, which are meant to inform patients of procedural risks so that they may make an informed decision as to whether or not they want to go through with the procedure. A signed consent should show that the patient was both aware of the risks and he or she consented to those risks, waiving any right to sue should the patient experience one of the unfortunate risks he or she was aware of prior to the procedure. In some cases, a signed consent is enough to bar a lawsuit, but not in all cases. Do not assume that you cannot bring a claim because you signed a consent without first speaking with a medical malpractice attorney who has reviewed your consent and understands your injuries. There are some things you may not consent to, such as a medical professional's negligence and there may be problems with what the consent form states or what actually caused your injury. When it comes to injuries, you may only know what medical professionals have told you and that may not be the full story.

A medical malpractice attorney will review your consent form to see if there are any issues with its content. Things to look for are whether or not the consent was thorough enough with regards to the risks associated with your procedure. Whether or not the information is accurate is also important. There could be misstatements or incorrect information, which would limit a patient’s ability to fully comprehend the procedure’s risks. It is also important to review the consent to see if your injury was associated with the risks that were addressed in the consent.

A patient should have the opportunity to discuss the risks addressed in the consent with his or her medical professional prior to making any decisions. Additionally, it is important that prior to the patient making a decision about the treatment, he or she was informed of any alternative procedures or treatments that may have different or less risks.

Yes, if you are a victim of medical malpractice, you need a medical malpractice attorney. Medical malpractice cases are complicated for a number of reasons. If you are not a medical professional and not experienced in medical malpractice cases, it is hard to not only make sense of what happened but to also try to figure out the next steps to take. A medical malpractice attorney’s job can be boiled down to helping you get necessary medical care, proving the defendants' negligence caused your injuries and maximizing your financial recovery. Medical malpractice attorneys will help you in critical areas along your path to financial recovery.

When you are injured due to medical malpractice, there is a good chance you need ongoing medical care while recovering from your injuries. We can help you get that care, especially when insurance companies are denying claims and pointing fingers at everyone else. Your ongoing medical bills are likely very expensive and for most people, paying out of pocket is not an option.

Sometimes medical malpractice is obvious enough that you’re already receiving settlement offers. You may think: Why do I even need an attorney if I am already receiving settlement offers? You need an attorney because you are likely not being presented with their best offer and their goal is to pay you as little as possible in exchange for a release of liability. You need an advocate that understands the medical profession and insurance industry as they operate in medical malpractice claims. And if your case goes to trial, you need an attorney with the experience, knowledge, and skill to convey the facts of your case and explanation of medical malpractice law to a jury so that they understand that you were injured through no fault of your own and that you deserve to be compensated as such.

Expert physician witnesses are almost always involved in medical malpractice claims. An experienced medical malpractice attorney will have many contacts and should not have a problem securing appropriate medical expert witnesses for your case. Expert witnesses are critical throughout the entire medical malpractice case process from determining whether or not the case has merit to testifying at trial, and everywhere in between.

In medical malpractice claims, expert physician witnesses help in many ways including the following:
Determining whether or not a case has merit – An expert witness will review the facts of the case and make an assessment of the merits of the case. He or she may do a chart and file review as well as an interview with the plaintiff. Medical malpractice cases are not easy and an expert witness will help the plaintiff and attorney understand the case from a medical professional’s perspective.
Pennsylvania Certificate of Merit requirement – Pennsylvania has a certificate of merit requirement so that an attorney must file a certificate of merit when the case is filed or shortly thereafter for a medical malpractice claim. With some exceptions, the attorney’s certificate of merit will provide that a medical expert has reviewed the case and is of the opinion that there is a reasonable probability that the defendants’ conduct fell outside of acceptable professional standards and caused injury to the plaintiff.
The expert witness’s knowledge and opinions will be helpful to your attorney in preparing your case and developing legal strategies. His or her knowledge and opinions will also help in guiding discovery and deposition questions.
The medical expert witness is a very important component in a medical malpractice attorney’s trial strategy as it is his or her testimony that will leave an impression on the jury. The expert testimony will be intended to show both medical negligence (breach of defendants’ duty of care) and the causal connection between the negligence and the injuries.
Help in settlement negotiations – Medical expert witnesses can also be helpful in settlement negotiations. Medical experts can help secure a fair settlement by showing that there is enough evidence to bring a case. Medical experts can also help in valuing a case in terms of injuries and damages. Additionally, if the defendants are aware of the plaintiff expert’s opinions and his or her expected testimony, they may be persuaded to settle as a way of protecting their reputations from being questioned in a trial.

In 2016 there were 1,541 medical malpractice filings in Pennsylvania. Medical malpractice occurs when a medical professional's negligence results in injury to his or her patient. Medical malpractice is a complicated area of law that requires not only legal knowledge and experience regarding personal injury but also particular medical knowledge and expertise. Only experienced medical malpractice attorneys should be entrusted to handle this type of claim.

See below for questions to answer relating to whether or not you may have a medical malpractice case:
Did you have a doctor-patient relationship? A doctor patient relationship is fairly easy to establish in most cases. When you have an appointment at a doctor’s office to discuss or receive medical care, your relationship has been established. Casually conversing with a medical professional outside of his or her employment will generally not create a doctor patient relationship. For example, if you are having tea with your neighbor who happens to be a doctor and you mention your headache to which she offers you a pain reliever, a doctor patient relationship has likely not been established.
Did the medical professional breach the standard of care owed to you? If yes, the medical professional was negligent. Standard of care can generally be described as the care, skill, and competence that would be exercised by medical professional peers. Was the practice acceptable based on the practices of other doctors with similar training in a similar practice?
Did you suffer injuries or some type of harm as a direct result of the negligence? The injury element of medical malpractice is two-fold in that you must be able to establish that you were injured and then you must be able to prove that the injury was caused by the medical professional’s negligence.
Do you have damages? In medical malpractice cases, you may be awarded economic and noneconomic damages. Economic damages may include medical care, lost wages, and loss of earning capacity. Noneconomic damages may include pain and suffering, emotional distress, and loss of consortium. In order to have a medical malpractice case, you must have quantifiable damages.

Typical medical malpractice cases include surgical errors, misdiagnosis or failure to diagnose, improper prescription, performing unnecessary surgery, failing to review or inquire about a patient’s medical history, and failure to recognize symptoms.

Medical professionals are held to a high standard of care because patients' health and safety are in their hands. The duty of care owed to patients requires medical professionals to exercise the same level of medical skill and care that other medical professional peers would have exercised under the same conditions. In other words, was the skill and care exercised adequate compared to the skill and care of other medical professionals with the same level of education and area of practice would have exercised? If the answer is no, that is negligence and medical malpractice occurs when a medical professional's negligence causes harm or injury to a patient.

See below for a list of the most common medical malpractice claims:  
Misdiagnosis or failure to diagnose – In these cases, a medical professional diagnosis a patient with something that the patient does not actually have or the professional finds that there is no illness when, in fact, the patient does have an illness. This does not mean that every time a misdiagnosis or a failure to diagnose happens there is a case of medical malpractice. It is only medical malpractice if the medical professional was negligent in the misdiagnosis or failure to diagnose and a patient is injured as a result.
Delayed diagnosis – Delayed diagnosis is when a medical professional diagnoses a patient with a condition that was not initially diagnosed when the professional was first aware of the patient’s symptoms. In the case of medical malpractice, a medical professional negligently fails to diagnose a condition early on and as a result, the patient is injured. Typically, the failure to initially diagnose the condition causes the condition to worsen between that initial time and when the correct diagnosis is made.
Failure to treat – In these cases, the medical professional’s diagnosis is proper and accurate, but the treatment of the diagnosed condition is not proper.
Anesthesia errors – Anesthesia errors can lead to a number of complications including anesthesia awareness (patient is not kept in the intended fully unconscious state during surgery), coma, brain injury, and death.
Surgical errors – Many different surgical errors may occur including operating on the wrong body part, unnecessary operation, medical equipment left in body post surgery, and using the non-sterile equipment.
Medication errors – Can occur when a patient is prescribed incorrect medicine, incorrect dosage, or the medical professional prescribes medicine without understanding the patient’s medical history that would affect whether or not a medication is safe and effective for the patient.
Negligence causing childbirth injuries – Childbirth injuries (injuries sustained by either the mother or child) are a common basis for medical malpractice claims. Those injuries can be severe including permanent injuries or even death. Birth injuries can occur for a number of reasons in medical malpractice cases including a medical professionals’ failure to monitor and treat fetal distress, failure to monitor and control oxygen levels, negligent delivery causing spinal cord injuries, and failure to detect and control maternal hemorrhaging.