Medical Malpractice FAQ’s

Under Virginia law, medical malpractice is, quite simply, negligence in the delivery of medical care by a health care provider. In legal terms, medical malpractice is a breach of the standard of care owed to a patient by a medical provider, that proximately causes damage or injury. These terms are very much the subject of considerable legal through and interpretation by the Virginia Supreme Court and thus the facts of each particular case will determine whether malpractice has been committed by a health care provider. It takes an attorney who has experience in the evaluation of potential malpractice cases, like Greg Sandler of Epstein, Sandler & Flora, P.C. to guide a client through the analysis, to determine whether a case has merit, and should be pursued.

Any breach of the standard of care constitutes medical malpractice. However the following are patterns that the medical malpractice lawyers such as those at Epstein, Sandler & Flora have run across:

  • Failure to diagnose in the emergency room
  • Failure or delay in diagnosis of conditions such as cancer
  • Birth related injuries
  • Dental Malpractice
  • Pharmacy Errors
  • Surgical Errors
  • Nursing Home Neglect
  • Patient Abandonment
  • Anesthesia Errors

Medical Malpractice cases are governed by a general statute of limitations of 2 years. That means that if you don’t file suit against the persons who are alleged to have committed malpractice, within 2 years of the date of the negligent act that inflicts the injury, you will be forever barred from bringing your case. Virginia does not wait to start the running of the 2 years until the victim is AWARE of the harm and the negligence, therefore there are some circumstances where the victim may not find out that he or she was the victim of malpractice until will into the 2 years, and in some circumstances, until after the statute of limitations has expired. Lastly, Virginia does adhere to the “continuing treatment” doctrine, which will allow for an extension of the 2 year limitation when the offending health care provider has continued to treat the patient for the same condition that caused the harm. Determining the statute of limitations and the expiration date in your case requires an evaluation by the medical malpractice lawyers at Epstein, Sandler & Flora, as the facts of your case will determine your deadlines. In order to protect you properly and to insure that the case is evaluated before we advise you to proceed, the attorney’s at Epstein, Sandler & Flora, P.C. require at least 4 months of investigative time, prior to the expiration of the statute of limitations, before accepting your case.

Virginia code Section 8.01-581.1 defines “Health care provider” to include a person, corporation, facility or institution licensed by this Commonwealth to provide health care or professional services as a physician or hospital, dentist, pharmacist, registered nurse or licensed practical nurse or a person who holds a multistate privilege to practice such nursing under the Nurse Licensure Compact, optometrist, podiatrist, chiropractor, physical therapist, physical therapy assistant, clinical psychologist, clinical social worker, professional counselor, licensed marriage and family therapist, licensed dental hygienist, health maintenance organization, or emergency medical care attendant or technician who provides services on a fee basis. This definition is intended to be broad to bring almost all health care providers under the scope of the statutes governing the prosecution of medical malpractice claims.

Medical malpractice cases are the most complicated and difficult to bring to court and to prove. For this reason, you should only seek advice from a medical malpractice attorney who has experience in evaluating these types of cases, like the medical malpractice attorney’s at Epstein, Sandler & Flora, PC. The Plaintiff, as the injured person, has two different burdens of proof. The first is to prove, through the testimony of medical expert witnesses, what the applicable standard of care is and that the defendant health care provider breached that standard of care. Second, the Plaintiff must prove, again through the testimony of medical expert witnesses, that the breach of the standard of care caused the injury and harm that the victim claims. Medical Expert Witnesses are those health care providers in the field of medicine of the defendant health care provider, who have reviewed all of the pertinent facts and medical records in connection with your case, and are therefore in a position to give their opinions, to a reasonable degree of medical certainty, as to the standard of care, breach of the standard of care and of the causation issue. When your medical malpractice attorneys, such as those at Epstein, Sandler & Flora, evaluate your case, they will often have to retain medical experts to assist them, and the rules of evidence require that they obtain a written opinion on these issues before they serve a lawsuit on the defendant health care provider. Because the use of these experts is very expensive, only an experienced malpractice attorney, like Greg Sandler at Epstein, Sandler & Flora, will be able to properly evaluate your case, to avoid unnecessary costs to you, as the client, to pursue a case that is not likely to succeed.

The attorneys at Epstein, Sandler & Flora, PC. use written retainer agreements for all clients that are represented by the firm. All medical malpractice cases are accepted on a contingency fee basis. This means that we will not recover a fee from you, unless we are able to recover compensation for you. If we do not succeed, we will not claim a fee from you. During the process of your case, we will often be called upon to expend certain sums on your behalf. These are costs associated with your case for such things as copies of medical records, filing fees, costs for court reporters and some expert witness fees. Regardless of the outcome of your case, these costs remain the client’s ultimate obligation to reimburse the firm, however the contingency fee is only payable if we recover compensation from you.

One of the misunderstood elements of medical malpractice claims has to do with the effect of your case on the health care providers. The vast majority of health care providers are very competent caring people who have devoted their lives to healing the sick, and our society needs them. However, on occasion, for many reasons, a health care provider may act in a negligent manner, and cause harm to a patient. This, in and of itself, does not make that person a “bad” doctor, and in most cases, it does not mean that they should no longer be allowed to practice law. The licensing of health care professionals is controlled by various departments within the government of the Commonwealth of Virginia. Whether those departments choose to bring a disciplinary proceeding against a health care provider, or actually make a finding against a health care provider has nothing to do with your claim. A civil action for damages and a regulatory proceeding against a health care provider’s license are independent proceedings, do not involve the same rules of evidence, do not involve the same parties, and do not control each other.

The costs associated with the prosecution of a medical malpractice claim can be substantial because of the nature of the evidence that must be presented. The most basic cost is the charge that is assessed by each medical practice from whom we need to get medical records. All medical malpractice cases begin with a complete review of the medical records that pertain to the condition or circumstance that created the need for treatment and the actions that caused the damages. Medical providers routinely charge for copies of medical records, xrays, lab reports, etc., and we have to get all of the records. Many clients tell us that they already have their records, yet we consistently find that when a client requests records from a hospital or doctor, that they are not given THE ENTIRE chart or file. We will get the records directly from the providers, so you do not have to. The costs of litigation involve the filing fees, the fees to serve the lawsuit and any subpoenas, and costs for depositions and court reporters. The most expensive cost in a medical malpractice lawsuit are associated with the expert witness fees. Doctors and other specialists must be hired to review records and be prepared to offer their expert opinions. They all charge hourly rates for document review, conferences, depositions, research and trial testimony, and often these expenses are significant. A client should not have to incur these expenses unnecessarily, if their case does not have a substantial likelihood of success. While no attorney can guaranty the results of your case, we at Epstein, Sandler & Flora, PC.believe that our knowledge and experience in evaluating your case, will allow us to properly advise you whether you should undertake these expenses BEFORE you start down this path.

This is one of the most common statements that the medical malpractice attorney’s atEpstein, Sandler & Flora, PC hear from potential callers. A patient may have been prescribed medication and discovered the error before taking it. A patient may have been discharged from the hospital emergency room only to find themselves back the next day with a correct diagnosis that lead to surgery or other emergency care. It may very well be true, that had the patient not found the error or not returned to the ER, that they MAY HAVE suffered severe harm, permanent injury or even death. BUT THEY DIDN’T. The damages that may be sought in a medical malpractice lawsuit are ACTUAL damages that the patient has suffered, not damages that may or may not have happened. While a health care provider may be negligent and may commit malpractice, if the patient is not harmed, there is no basis for bringing a case.

What are the damages that I can recover – The damages that are recoverable in a medical malpractice case are very similar to those recoverable in any negligence action, where the Plaintiff has been harmed. They include the bodily injury suffered, the medical expenses incurred in connection with treatment and care, the pain, the mental suffering and anguish, the humiliation or embarrassment, psychological or emotional harm, lost earnings, scarring or disfigurement and any other similar damage that has been ACTUALLY suffered. These damages may be recovered for future harm, if the injury is permanent. In cases where the patient dies as a result of the medical malpractice, then the damages determined under the law in a wrongful death claim are applicable. There are two important points to realize in the damage discussion for medical malpractice cases:

What is important to realize is that the patient must have ACTUALLY SUFFERED THE HARM. It is not enough that the health care provider COULD HAVE CAUSED HARM. We don’t litigate based upon “could have”, we litigate based upon “did”.

Because the costs to prosecute these cases are substantial, particularly in retaining medical expert witnesses, the damages that a patient suffered must be large enough to justify spending these sums to get to trial. This may sound as if you only have a case if you get true hurt badly, and to a certain extent, that is true. However the reality is that the difficulty and expense associated with a medical malpractice lawsuit, require that an experience medical malpractice attorney, like those at Epstein, Sandler & Flora, PC., be able to recognize those cases that should be pursued, from an economic standpoint, not just from an emotional one. The Client deserves to know the truth.

Although it takes a medical malpractice attorney like Greg Sandler at Epstein, Sandler & Flora, to review the facts of you case, in order to tell you whether you should take the steps necessary to continue to pursue your case. However, as a guideline, you should be able to answer this question, very simply in a couple of sentences, by filling in the blanks:

I feel that (health care provider’s name) was negligent because he or she (what did they do to you, or what did they fail to do for you that they should have), and that because of this, I suffered the following injury ____________________.

While there are many situations where the patient, or the patient’s family doesn’t know what the health care provider did, or didn’t do, generally you should be able to help us focus in on the problem, so we can help you effectively.

Many patients believe that when the outcome of their proceeding or surgery is not as anticipated, then it must be malpractice. This is a common misconception and is not generally the basis for a medical malpractice lawsuit. There are adverse consequences that statistically occur in medicine, WITHOUT any negligence on the part of the health care provider, because medicine often involves judgment and “art”, not an exact science. When adverse consequences or bad outcomes occur, AS A RESULT of negligence of the health care provider, then there may be a case of malpractice. It takes a medical malpractice attorney such as those at Epstein, Sandler & Flora, PC. to evaluate your case and to consult with medical experts to determine whether your bad result was the result of negligence, or an unfortunate occurrence without negligence.

Generally speaking, confronting your health care provider with an allegation of malpractice will not result in you either getting the response that you hoped for, or advancing your case. It is likely that you will receive either an explanation that does not fully answer your questions or your health care provider will immediately decline to treat you further. You will not get an admission that the health care provider was negligent and you will not likely get an offer by the health care provider to either pay for your medical bills, or to compensate you. What you will get, is a health care provider that is now on notice of your intention to file a claim, and it can make getting full and complete information from that health care provider much more difficult for us. On top of it, you may be wrong, and you may have alienated the very doctor that is in the best position to medically help you.

One of the great disagreements, medically, legally and politically over the past decade, as been over limits on damages in medical malpractice cases. As a medical malpractice attorney, whose goal it is to provide a means for a tragically injured patient to live a complete life, the concept of caps on damages is unconstitutional, unreasonable, and predatory, resulting in the largest injustice to victims in legal history. Would you stand for a law that said that, regardless whether you own a Hyundai or a Ferrari, if someone totals your car, you can only get $10,000.00? Would you feel that would be fair? Wouldn’t you feel that you are being penalized just because the car insurance industry has decided that insurance rates were too high? Well that is exactly the chilling and unfair effect that the medical insurance industry, medical practitioners, and certain politicians have forced upon patients. In Virginia, there as a complete cap on damages that can be awarded to a medical malpractice victim of $2,000,000.00. Although this cap is scheduled to increase by a small amount of $50,000.00 per year over the next 10 years, it remains an artificial penalty to the severely and permanently injured.

All that is needed to see this effect is to understand what it would cost a family to care for a severely and permanently child for the rest of her life, as a result of birth related malpractice committed by the obstetrician, causing the child to be deprived of oxygen. What happens to the family and the child, when the money runs out and the child is now a 23 year old brain damaged adult? If you feel strongly about this issue, please contact your state and federal representatives and tell them how much damage they are doing to you.