Delaware Injury Law Blog

The Dos and Don'ts of Medical Malpractice

Understanding a medical malpractice claim is the first step to protecting yourself and your right to compensation when you have been the victim of medical malpractice. Our medical malpractice attorneys at Morris James are seasoned professionals with years of experience handling medical malpractice claims. In this article, we discuss some of the dos and don’ts of the often complex process of a medical malpractice case. 

If you have more questions about medical malpractice, we are available to help. Contact us online or by calling 302.888.6857.

What is Medical Malpractice?

Medical malpractice refers to situations where the care provided by a healthcare professional falls below the standard of care required by law, resulting in harm to the patient. These cases can involve any medical providers, both individual and institutional, from doctors and nurses to healthcare systems and nursing homes. Understanding what constitutes medical practice is the first in our list of dos and don’ts because it is fundamental to knowing that you have rights and a voice under the law.

DO: Understand What Constitutes Medical Malpractice

Medical malpractice is not the same as a bad medical outcome. Unfortunately, patients sometimes get bad news even when their healthcare professionals provide the highest possible standard of care. Medical malpractice only happens when the care falls below the expected legal standard and it causes harm to the patient. You can read more about what constitutes medical malpractice in detail in our article, What is Medical Malpractice?

DON'T: Attempt to Navigate the Legal System Alone

Medical malpractice claims are legally and technically complex. It is rarely a good idea to handle even the simplest of low-value legal claims without an attorney, but it is highly inadvisable to try to handle a medical malpractice claim without legal representation. In addition, if you are considering handling your own medical malpractice claim, there is a good chance that you are underestimating the amount of compensation that you are entitled to. Medical malpractice claims can involve large compensation awards, and the legal process is a maze of procedures, terminology, and deadlines. It is crucial to have an experienced medical malpractice attorney by your side to guide you through the process, ensuring your rights are protected and your claim is correctly presented.

DO: Keep Detailed Records

Maintaining a thorough record of all your medical treatments, prescriptions, bills, and interactions with healthcare professionals can be invaluable in your case. This includes taking photos of your injuries or condition and copies of any written communication. It can also be helpful to keep a daily journal of your medical appointments, and how you are feeling physically and emotionally as you deal with your injuries and the trauma of being hurt by the people you trusted to heal you. This is important when considering your noneconomic damages, referred to as pain and suffering, which can be a significant part of the compensation awarded in a medical malpractice claim. All of the evidence that you gather, combined with the evidence that your attorney obtains in the discovery phase of the lawsuit, affects the strength of your claim and the case presented to a jury if you end up in court.

DON'T: Wait to File a Claim

Timeliness is crucial in medical malpractice cases. Each state has a statute of limitations that dictates how long you have to file a claim. In Pennsylvania and Delaware, the statute of limitations period for a medical malpractice claim is generally 2 years, while in Maryland, it is generally 3 years. If you miss the applicable deadline, you may lose your right to pursue legal action. There are very few exceptions to these rules, so if you think you have been the victim of medical malpractice, speak to a medical malpractice attorney as soon as possible. They can ensure that you do not miss the deadline to file a lawsuit or, if you think it has been more than 2 years since your injury, they can investigate the facts of your case to decide if you fall within any of the exceptions for filing a claim. 

DO: Prioritize Your Health

If you think that your current healthcare provider is not providing the care that you need, or has harmed you, seek a second opinion and/or medical treatment from another trusted healthcare professional. The first priority is your physical and emotional health and wellbeing. It is also helpful to your claim to be able to show that you acted appropriately, and your condition was not worsened by any failure on your part to seek appropriate medical care when you were injured or concerned.

DON’T: Communicate with the Defendant Healthcare Providers without Your Attorney

When you are pursuing a legal claim against your doctor, hospital, or other healthcare provider, they should not contact you, and you should not communicate directly with them or any of their representatives. These claims often exist in highly personal and emotional situations, which can lead to attempts at direct communication. However, any communication with the defendants should happen through your attorney. 

DO: Understand Damages and Compensation in a Medical Malpractice Claim

In a medical malpractice claim, you can be compensated for all of the physical, emotional, and financial harm that you suffer as a result of the medical provider’s negligence. This includes the costs of additional procedures and treatments, lost wages as a result of extended treatment and recovery, and the physical and emotional suffering (pain and suffering) that you endure. These costs are calculated from the date of the injury and into the future, beyond any court or settlement date. Many victims who do not have good legal representation do not realize that their future lost wages and medical bills can be included in their compensation, or do not know how to value them, and end up receiving inadequate compensation for their injuries.

DON’T: Accept a Settlement Without Speaking to an Attorney

Many medical malpractice claims are settled between the parties before ever getting to a courtroom, however, you should not accept a settlement offer before speaking to an attorney. If you do not have an attorney yet, the healthcare provider is likely lowballing you to make the claim go away. If you do have an attorney, the healthcare provider should only communicate with you through your attorney. Discuss the offer with your attorney and get their experienced advice on whether or not the settlement offer is full and fair compensation for your suffering. Ultimately, the decision is yours, but your attorney is skilled and experienced in these matters and will guide you.  

DO: Be Honest and Open with Your Attorney

Your attorney is your ally, so it is essential to be entirely transparent about your case, including your medical history and your interactions with your healthcare provider. This information can significantly impact your case and the best strategy for a successful outcome for you. We understand that it is difficult to trust another professional after being harmed by your own doctors and care providers, but it is important to give your attorney all of the facts so that they can prepare a strong case for you. 

DON'T: Discuss Your Case on Social Media

Social media can be a minefield in legal cases. Any information shared can potentially be used as evidence in court, often to the detriment of your claim. It is advisable to avoid discussing your case or your health on any social media platforms. Many attorneys will advise you to stay off social media altogether until your claim is finalized. We all know that status updates, comments, photographs, and videos shared on social media can be sanitized or exaggerated, and may misrepresent the true state of your emotional or physical health. In life, this is unfortunate, but in a courtroom, this can lose a case.

Navigating a medical malpractice claim can be a stressful, intricate process. Understanding these do's and don'ts can help guide your path, but always remember that the advice of a seasoned medical malpractice attorney is invaluable in these situations. Having a trusted legal professional, like the medical malpractice attorneys at Morris James by your side can help you achieve the justice and compensation you deserve.  

At Morris James, our attorneys have been standing up for victims since we opened our doors in 1932. If you have been a victim of medical malpractice, our medical malpractice attorneys can help. More information is available in our Medical Malpractice FAQs, or you can contact us online or at 302.888.6857 to talk to one of our experienced team about your case.

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