You’ve been going to your orthopedic specialist for a long time to treat ongoing swelling in your knees, and every month you receive injections to curb the swelling and your pain.
Suddenly, one of the injections causes a reaction, and for the last year, your knee aches like never before. Though you like your doctor, you’re furious that the knee has never been the same. There is no remedy on the horizon, and you and your family are considering legal action.
You’re wondering if you should be considering a malpractice lawsuit, although in many ways the medical issues you are now facing could be called a personal injury.
What is the legal course of action?
“When someone’s carelessness causes injury to another person, a personal injury case may be filed in court,” said Brian Eisen of The Eisen Law Firm in Beachwood.
“Medical malpractice is a specific type of personal injury case, where a medical professional – a doctor, a nurse, a hospital, for example – is careless and causes injury while treating a patient.
“So, if a doctor drives through a red light and smashes into you, you may file a personal injury case against the doctor. But if the same doctor prescribes you the wrong medicine and causes you injury, you may file a medical malpractice case.”
“Medical malpractice claims require proving that the medical provider did not provide reasonable medical care, and that failure resulted in harm to the patient,” Jonathan Mester, managing partner at Nuremberg Paris Injury Lawyers, said. “Personal injury cases are simply claims resulting from injuries which are alleged to have been caused by another person, including car accidents, slips and falls, etc.”
In some states, financial remedy against doctors in a malpractice case is capped at $300,000. That turns away many firms; between the costs of hiring expert witnesses and the other expenses, some firms feel they don’t net enough at the end of a case to justify taking the case on.
In Ohio, the cap – and the chance for a greater reward – is higher.
“The cap on medical malpractice cases in Ohio actually ranges from $250,000-$500,000 for the injured party depending on the particular facts of the case,” Mester said.
This only applies to “non-economic damages” including pain and suffering, loss of enjoyment of life, etc. There is no cap on “economic damages” including medical bills and lost income, both past and future. Medical malpractice cases are very complex and expensive, requiring consultation with experts throughout the country in order to pursue the case.
Eisen said, “For this reason, the cap does play a role in assessing whether we can handle the case, in that we are more likely to pursue a case in which there are substantial economic damages which are not subject to the cap. It does the client no good to spend as much money as they could recover under the cap if they do not have substantial economic damages.”
“The caps can make it difficult to take on cases where the injuries are primarily non-economic, which is often the case for victims who are homemakers or who are retired.
“This is especially true when the injuries do not affect the person’s ability to care for themselves, as the damage cap for such injuries is relatively low.”
The perception exists that the United States has become an exceedingly litigious country, in terms of medical-related lawsuits. While that may be true on an overall basis, the reality is different inside the borders of Ohio.
“While the country may be more litigious, the opposite is true for medical malpractice cases in Ohio,” Eisen said. “The most recent data compiled by the Ohio Department of Insurance shows that malpractice claims have trended downward since 2018. I wish this was because Ohio medical providers have caused fewer injuries, but that doesn’t seem to be the case. Instead, I believe it is the continued, intentional erosion of victims’ rights by the Ohio legislature and Ohio Supreme Court that has reduced the number of lawsuits. That, in turn, is related to the lobbying efforts of various powerful entities, including medical associations and insurance companies.”
Mester said, “There are actually far fewer medical malpractice cases than were filed when I first started practicing 24 years ago, so in my area of practice it is actually less litigious than before. In addition to the caps, the law now requires that any attorney filing a medical malpractice case include an ‘affidavit of merit’ from an expert physician opinion that there was negligent care. This has resulted in far less cases being filed and litigated.”
Steve Mark is a freelance journalist.
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