WHAT SHOULD I KNOW ABOUT MY RIGHTS IF I'VE BEEN INJURED AS A
RESULT OF MEDICAL ERROR?
We know that it is not easy to make a decision to look into a possible
medical malpractice lawsuit. The law firm of Thompson, O’Neil & VanderVeen.
P.C. - located in Traverse City, Michigan - has the experience, the expertise,
and the resources to help you with your decision and to stand by you throughout
the legal process. We will consult with you and help you evaluate your potential
claims at no charge.
For further information call us at 1-231-929-9700 or call us toll-free at 1-800-
678-1307.
• What is medical malpractice?
• What kinds of medical malpractice are there?
• How can I help determine if I have a medical malpractice claim?
• What do I have to prove in a medical malpractice case?
• What kinds of damages can I recover in a medical malpractice lawsuit?
• Are there time limits for filing a medical malpractice lawsuit?
• Can any lawyer handle my medical malpractice case, or do I need a specialist?
• What is a notice of intent?
• What is an affidavit of merit?
• What will my medical malpractice attorney need to investigate my claim?
• How long will it take my medical malpractice attorney to resolve my lawsuit?
WHAT IS MEDICAL MALPRACTICE?
If you or your loved one has suffered injury because a physician, nurse, hospital, or HMO failed
to provide care meeting the standards that a medical care provider is expected to meet, you may
file a medical malpractice lawsuit. Medical negligence can be one of many things. It might be a
medication error – the wrong choice of drug or the wrong dosage, for example. Or, it might be a
failure to diagnose a life-threatening disease or a mistaken diagnosis. Medical negligence may
also be a mistake in surgery or in other medical care. Everyone, from infants in utero to seniors at
home or in a care facility, is vulnerable to medical negligence.
To be liable for medical malpractice, a doctor, a nurse, or a hospital employing the professional
must have been responsible to care for the patient and the doctor’s or care provider’s negligence
must have caused injury.
It’s important that you know that there are strict time limitations that apply to medical malpractice
actions. If you fail to file suit within those time limits, you will lose your right forever to recover
damages for injury. Michigan law also requires strict adherence to other procedures. You should
retain a lawyer who specializes in personal injury law and in medical malpractice cases in order to
be sure that your rights aren’t lost because one of the rules of practice was ignored.
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TYPES OF MEDICAL MALPRACTICE
Medicine is a complicated matter these days. There are a great many things that can go right
when you or your loved one gets treatment for an illness or injury. Unfortunately, there are also a
great many things that can go wrong. A recent report released by the Institute of Medicine reveals
that between 44,000 to 98,000 persons each year die as a result of medical errors. Mistakes in
prescribing medicine alone account for the deaths of up to 7,000 people a year. Medical error
causes nearly as many deaths every year as traffic accidents (43,450) or breast cancer (42,300).
More serious, medical mistakes cause significant injuries such as disability, disfigurement, brain
injury, amputation, and birth trauma. However, medical malpractice is about more than numbers
– dollars or statistics. Medical error takes a heavy toll on the lives of people and their families
Common causes of a medical malpractice lawsuit include the following:
Medication error: This could be any one of a number of types of errors.
Commonly the error is prescribing the wrong drug (wrong drug for the
particular patient) or the wrong dosage. Medication errors also occur
when a doctor fails to adjust medications to accommodate weakened
kidney function. Failure to recognize an adverse drug reaction can also
injure you or your loved one. Sometimes, a doctor may fail to prescribe
appropriate medication when a patient has been seen and reported
symptoms indicating that treatment is required.
Errors in surgery: Sometimes, a surgeon may operate in the wrong area,
may perform the wrong surgical procedure, or may leave a foreign
substance (a sponge or a surgical instrument, for example) inside the
body
Failure to diagnose a problem after a patient has been seen by the
doctor and has reported symptoms
Misdiagnosis of a patient’s problem or illness
If you have questions about medical malpractice please feel free to contact us. The attorneys at
Thompson, O’Neil & VanderVeen. P.C. have helped many clients suffering from medical
malpractice. We may be able to help you recover damages for injuries suffered because of
medical negligence.
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HOW CAN I HELP DETERMINE WHETHER I HAVE A MEDICAL MALPRACTICE
CLAIM?
There are a couple of steps you will need to take if you believe that you or a loved one has
suffered from medical malpractice. You will need to do the following:
Obtain a copy of all relevant medical records
Prepare a time line showing when injuries were first discovered and/or
treated and what happened next
Review your case with a medical malpractice lawyer who is trained to
recognize medical negligence
Document and file your medical malpractice lawsuit in a timely manner to
avoid losing your right to sue because a statute of limitations operates to
bar your claims
You can You can discuss your concerns without charge and without obligation with one of our
medical malpractice lawyers if you suspect medical negligence. Something you have thought was
just poor treatment might be recognized as medical negligence by a lawyer who is experienced
and knowledgeable about medical "standards of practice." Lawyers with expertise in medical
negligence law can also help you evaluate your potential for damages.
If you have questions about medical malpractice please feel free to contact us. The attorneys at
Thompson, O’Neil & VanderVeen. P.C. have helped many clients suffering from medical
malpractice. We may be able to help you recover damages for injuries suffered because of
medical negligence.
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WHAT DO I HAVE TO PROVE IN A MEDICAL NEGLIGENCE CASE?
It isn’t enough to prove negligence. In a medical malpractice lawsuit, you must also prove
that medical negligence caused a specific injury or a wrongful death, and that damages or
losses occurred as a result. As an example, you might accidentally drop a heavy flowerpot from
a window. But if the pot merely hits the sidewalk and doesn’t cause harm to anyone, no one could
sue you for negligence. Similarly, a doctor or nurse might commit medical negligence without
causing any significant injury.
One of the reasons why you need a lawyer who is experienced in medical malpractice is
that your lawyer also must be able to help the jury see that there is a causal link between
medical negligence and the patient’s injury.
Establishing this link can often be the subject of great controversy. Patients in a medical
malpractice lawsuit are usually sick, injured, or in need of care even before any malpractice
occurs. That’s why they went to a doctor or a hospital in the first place. So you will need your own
expert – a doctor who practices the same kind of medical specialty – to help explain to the jury
what part of the injury, and thus the patient’s damage or loss, is due to the patient’s original
condition and how much is due to the medical negligence.
The medical negligence lawyers at Thompson, O’Neil & VanderVeen. P.C. have experience with
medical malpractice lawsuits in Michigan. If you live in Traverse City, Michigan, and would like to
file a medical malpractice lawsuit, contact us today!
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WHAT KIND OF DAMAGES CAN I RECOVER IN A MEDICAL MALPRACTICE LAWSUIT?
In Michigan, there are two kinds of damages in a medical malpractice case:
(a) non-economic damages, such as pain and suffering. If the patient has died, damages can also
be claimed by family members for loss of society and companionship.
(b) economic damages, such as medical expenses and/or loss of earning capacity.
Laws were passed by the Michigan State Legislature in 1993 limiting the amount of non-
economic damages that can be obtained in a medical malpractice lawsuit. These limitations are
called “caps.” Economic losses in a medical malpractice lawsuit are not, however, subject to any
limitations or “caps.”
The medical negligence lawyers at Thompson, O’Neil & VanderVeen. P.C. have experience with
medical malpractice lawsuits in Michigan. If you live in Traverse City, Michigan, and would like to
file a medical malpractice lawsuit, contact us today!
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ARE THERE TIME LIMITS FOR FILING A MEDICAL MALPRACTICE LAWSUIT?
All medical malpractice cases seeking damages for personal injuries arising out of
medical negligence must be filed within a certain period of time established by the State
Legislature. The time limits are called the Statute of Limitations. In Michigan, a Notice of Claim
must be filed first, and there are strict time limits for filing. In general, you have two years from the
date the medical malpractice occurred within which to file a medical malpractice lawsuit or, more
precisely, to file your Notice of Claim. Because it takes time to properly examine your medical
records and to evaluate your claim, it is important for you to consult a medical malpractice
attorney as soon as possible if you believe medical malpractice has occurred. At Thompson,
O’Neil & VanderVeen. P.C. our attorneys see many cases where patients or families have come
to us too late. The sad thing is that many of these people had a perfectly legitimate and
meritorious medical negligence lawsuit. If you don’t act to protect your rights in a timely manner,
however, your claim will be barred forever.
There are a few exceptions to Michigan law that gives additional time after the two year
period has expired. However, these exceptions are only applicable under special
circumstances. If, for example, a patient “discovers” the medical negligence after two or more
years have passed, the patient has six months from the date of discovery to file a medical
malpractice lawsuit or Notice of Claim. Suppose, for example, that four years after surgery
because of a routine x-ray a patient discovers that a foreign object such as a sponge was left in
the abdomen. The patient still has the right to file a lawsuit, as long as that lawsuit or the Notice of
Claim is filed within six months after the discovery of the sponge.
Don’t be complacent, though. Six months is really not a very long time. Our attorneys see many
patients who had legitimate medical malpractice claims that have lapsed because the six month
period has expired.
A common instance of this is where a doctor has missed or delayed a diagnosis of cancer. Once
the patient learns that the cancer was missed, the six month period starts to run in most
instances. Because we are willing to consult with you and help you evaluate your claim without
charge, you have nothing to lose by consulting us without delay. Our advice to you is, "Don't
wait"!
Medical malpractice can cause the death of a loved one. If a patient dies as a result of
medical malpractice, the Wrongful Death Act allows family members to file a lawsuit. The time
limits that apply to other medical malpractice cases don’t apply to wrongful death cases. The laws
are complicated, but generally there is a longer period of time within which a claim or Notice of
Claim can be filed. You should keep in mind, however, that the statute of limitations starts to run
the moment that a personal representative has been appointed for the estate of the loved one in
probate court. Then, the statute of limitations will expire not later than two years from the date of
first appointment. Loved ones may not be aware of a potential medical malpractice claim at the
time a probate estate is opened. They may only be worried about handling the property and
affairs of the estate. But all that time, the statute of limitations is running nevertheless! If you have
any concerns that your loved one died as a result of medical malpractice and a probate estate
has been opened, you should promptly consult medical malpractice attorneys.
The medical malpractice lawyers at Thompson, O’Neil & VanderVeen. P.C.have experience with
medical malpractice lawsuits in Michigan. If you live in or near Traverse City, Michigan, and would
like to file a medical malpractice lawsuit, contact us today!
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CAN ANY LAWYER HANDLE MY MEDICAL MALPRACTICE CASE, OR DO I NEED A
SPECIALIST?
There are several reasons why you should consult a specialist to handle your medical
malpractice case.
Attorneys who handle medical malpractice cases need to have a vast amount of
knowledge of physician and hospital practices. They also need experience in handling
complicated discovery and litigation issues. A medical malpractice case is very dependent upon
the facts that your lawyer can find to support your claim. Knowing what to look for in medical
records and knowing how to interpret tests and exams that the patient has had help the lawyer to
understand and to prepare your case. Everything depends upon the facts your lawyer can learn
from you about what happened, when it happened, and what the consequences were. Your
lawyer also learns facts from reviewing your detailed medical records, and from specialists your
lawyer will hire to help document and support your case. Medical malpractice attorneys
understand what to look for in medical records and how to interpret what they say.
The filing of a medical malpractice case was made much more difficult in 1993 by “Tort
Reform” laws passed by the Michigan State Legislature.
Complicated procedures must be strictly complied with or the patient’s malpractice case will be
dismissed by the court. Before filing a Complaint, patients are required to file a Notice of Intent
(see below).
An Affidavit of Merit (see below) signed by an expert who meets precise criteria must be filed at
the same time as the Complaint. Dealing with these complexities and meeting the requirements
of these laws is something you will want to leave in the hands of capable, experienced specialists
– lawyers who practice medical malpractice litigation.
Substantial resources are need to successfully litigate a medical malpractice lawsuit. Most
injured patients lack the financial resources to advance the out-of-pocket expenses that are
needed during the two or more years it takes to get your case to trial. Experienced medical
malpractice lawyers know which expert witnesses are qualified to support your claims. They also
know the kinds of defenses the attorneys for doctors and hospitals will raise and are prepared to
deal with them. The law firm of Thompson, O’Neil & VanderVeen. P.C. has the resources to
advance your costs during litigation and to help you and your family withstand the litigation
process. We have specialized in helping injured clients for more than twenty years.
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WHAT IS A NOTICE OF INTENT?
The tort reform laws passed in 1993 in Michigan require that injured persons file a "Notice of
Intent to File a Medical Malpractice Claim" as a pre-condition to filing a complaint or lawsuit. In
general, this Notice must be filed six months before the medical malpractice lawsuit can be filed.
An automatic waiting period results from the Notice. The intent of the Legislature was that the
parties would use this time to discuss the case to see if it can be resolved before a lawsuit is filed.
Unfortunately, few cases are settled during this waiting period, and the law has merely slowed
everything down for an extra six months.
The law requires the Notice of Intent to meet a number of specific criteria. You could lose
your right to file a lawsuit if you don’t follow the right procedures. This is another reason why you
need to consult with medical malpractice lawyers. Under certain circumstances, the statute of
limitations might be extended by the filing of a Notice.
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WHAT IS AN AFFIDAVIT OF MERIT?
The Tort Reform Act of 1993 also requires people to file a special document – an Affidavit of Merit
– with the complaint for malpractice when starting the lawsuit. The requirements for this affidavit
must be strictly observed. A healthcare professional, such as a doctor or nurse, who specializes
in the same field as the healthcare provider whose conduct is challenged as negligent must sign
the Affidavit of Merit. For example, if the claim is against a doctor who is a board certified
specialist in oncology, then the plaintiff’s lawyer must produce an Affidavit from a board certified
specialist in oncology that tells in detail why the medical malpractice claim is meritorious.
If your lawsuit is against more than one professional, then your lawyer must file an Affidavit of
Merit from a suitable expert with respect to each specialty.
A recent case decided on June 9, 2005, requires the plaintiff's lawyer to file an affidavit that is
executed within the strict requirements of MCL 600.2102. A failure to comply will result in the
case being dismissed.
If you live in Michigan and would like to file a medical malpractice lawsuit, contact the medical
malpractice lawyers at Thompson, O’Neil & VanderVeen. P.C.
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WHAT WILL MY MEDICAL MALPRACTICE ATTORNEY NEED TO INVESTIGATE MY CLAIM?
First, certain documents will need to be signed. One of those is a fee agreement, which will
be discussed below. The fee agreement establishes your attorney-client relationship. You will
also be asked to sign medical release forms by your medical malpractice attorneys. These forms
will permit your lawyers to obtain all pertinent records. If the lawsuit involves wrongful death,
medical malpractice attorneys will need to start an estate in probate court if that has not already
occurred. They will have the court appoint a family member as a personal representative to obtain
records from the healthcare providers. (As we pointed out above, the statute of limitations starts
to run on the date of appointment and will expire in two years.)
Your medical malpractice case is fact-driven. Therefore, the most important things in the
medical malpractice investigation are a thorough discussion of why the patient thinks he or she
has a lawsuit and a review of all of the patient's pertinent medical records, including x-rays or
other ests and reports that might be significant to the lawsuit. You can help your lawyers by
making a time-line to show exactly what happened when. Your experienced medical malpractice
attorneys will carefully evaluate which records should be ordered and reviewed in order to fully
investigate your claims.
Sometimes your attorneys will retain the services of a medical expert to evaluate the records for
evidence of a violation of the standard of care.
Most of the time plaintiff medical malpractice attorneys are compensated on a contingent
fee basis. This means that if there is no recovery, then the attorney takes no fee. A contingent
fee agreement must be in writing. It will carefully spell out the attorney’s fees and charges, which
will be related to the amount of damaged recovered. The standard percentage arrangement is
one-third of the net recovery. What this means is that the costs of the litigation are subtracted
from the money damages recovered, either as a result of a judgment or a settlement, and then,
out of what is left, the attorney gets one third and you and your family recover two thirds. The
Michigan Rules of Professional Conduct regard one third to be an equitable rate.
There are other ways, of course, to compensate medical malpractice attorneys. Your
attorney will carefully explain your options to you, and will ask you to sign a standard fee
agreement.
If you or a loved one have been injured as a result of medical malpractice, contact the attorneys
at Thompson, O’Neil & VanderVeen. P.C.
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HOW LONG WILL IT TAKE MY MEDICAL MALPRACTICE ATTORNEY TO RESOLVE MY
LAWSUIT?
First the Notice of Intent is filed. Then you and your medical malpractice attorney must wait six
months before the Complaint can be filed. After the Complaint has been filed and served, the
defendant has a certain period of time within which to answer the Complaint. Once an Answer is
filed, then the parties begin what is called "pre-trial discovery."
During pre-trial discovery, the parties exchange information. This gives the plaintiff a chance
to learn more about what really happened. It gives the defendant a chance to learn more about
the plaintiff and the plaintiff’s claim. Depositions of key witnesses and parties will be taken during
this period. A deposition is used to obtain testimony under oath about important issues in the
case.
Documents and records will also be exchanged. The medical malpractice attorneys for each
party will ask for documents that will support the claims of the plaintiff. Once the medical
malpractice attorneys have learned about your claims, then depositions of expert witnesses will
be scheduled. These give the plaintiff’s attorneys the opportunity to learn more about the
defendant’s defenses and they give the defendant’s lawyers a change to learn more of the details
of the plaintiff’s claim and the expert authority upon which the plaintiff is relying.
Medical malpractice cases take some time to prepare. Because of the busy schedules of
medical malpractice attorneys and of the doctors who serve as expert witnesses, it can take
weeks or longer to find a time that is convenient for everyone involved to meet for a deposition.
The minimum length of time, from the filing of a Complaint until the first trial date, is about
two years. Although some judges move cases along fairly quickly, other judges are much slower.
Discovery will usually continue during this lengthy period and a potential settlement may be
discussed by the parties.
Case Evaluation. The Court Rules require a procedure called “Case Evaluation,” and this usually
takes place about 18 months after the Complaint has been filed. Case Evaluation is an effort by
the Court to help the parties settle the case. A panel of attorneys briefly review the facts and
merits of the case. They give each side an advisory opinion on its settlement value.
While Case Evaluation makes sense in a lot of personal injury claims, that is not
particularly true in medical malpractice cases. Usually, case evaluation panels do not include
attorneys experienced in medical malpractice cases. Unfortunately, the Court Rules require case
evaluation. Your lawyer will discuss this with you when the time arrives for case evaluation.
"Mediation" or "Facilitation" is another settlement procedure allowed by the Court Rules.
This procedure is not mandatory like Case Evaluation. It is commonly used in medical
malpractice cases. It will seem to you a little like shuttle diplomacy, with the mediator or facilitator
meeting most of the time with one side or the other. The mediator or facilitator is sometimes a
retired judge. Sometimes, though, he or she is a highly respected and experienced attorney with
no connection to the case. The mediator tries for a period of several hours or longer to see if the
case can be settled.
Most medical malpractice cases are settled before trial. Some cases, however, must be tried
by jury. The lawyers at Thompson, O’Neil & VanderVeen. P.C. prepare all cases as if they will be
tried before a jury. This preparation and this focus substantially increases the likelihood of a
favorable settlement. You can be certain that the experienced medical malpractice trial lawyers in
our law firm will aggressively prepare your case for trial and that we will use the substantial
resources and expertise of the firm in presenting your case.
If you or a loved one has been injured due to medical malpractice, contact the lawyers at
Thompson, O’Neil & VanderVeen. P.C.
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Free Consultation – Will the Firm Evaluate my Claims?
If you or a loved one has been injured as a result of medical malpractice, you can contact our
office for a free consultation. We will ask you for information related to your injuries and a
member of our legal team will evaluate that information and respond the same day. We will keep
the information that you give us completely confidential and use the information only to determine
whether or not you have a legal claim.
By giving us information, you are not obligated in any way. Submitting information to our firm
does not create an attorney/client relationship.
You can always contact us directly at 231-929-9700. If you are out of the area, you can use our
toll-free number. 1-800-678-1307. Or email Thompson, O'Neil & VanderVeen, P.C.
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