Medical Malpractice

What is considered medical malpractice?

Medical malpractice, also known as medical negligence, occurs when a hospital, doctor, or other health care professional fails to comply with the standard of care and causes an injury to a patient. The standard of care refers to the requirement that a medical professional act as a reasonably prudent and diligent medical professional.

How do you prove medical negligence?

Not all failures to comply with the standard of care (also called a “breach” or “violation” of the standard of care) equate with medical negligence. Nor do all injuries to patients mean that a medical professional breached the standard of care. Rather, to prove that a patient’s injuries or harms were due to a healthcare professional’s medical negligence, the person must prove that: 

1. The healthcare provider owed a professional duty to the patient;
2. The healthcare provider breached that duty (a breach of the standard of care);
3. The patient’s injury was caused by that healthcare provider’s breach; and
4. The patient suffered damages as a result of that breach.

To prove medical malpractice, the injured party must present medical expert testimony that there was a standard of care breach that caused damages.  Even before a claim is filed, the injured party needs to retain a qualified medical expert who can support the claim. Thus, to pursue a medical negligence claim successfully, it is critical to hire attorneys who can retain competent and qualified experts. 

What is the statute of limitations for medical malpractice in Delaware?

A statute of limitations is a law that limits how long a person has to file a lawsuit. In Delaware, in most situations, an injured person has two years from the date of the healthcare provider’s negligence to file a medical malpractice claim. There are situations where the timeframe may be extended, but those are rare. To make sure your claim is filed timely, it is important to speak with an attorney as soon as possible. 

Will my case go to trial? 

Sometimes the injured party and the healthcare providers are able to resolve their matter before trial. If, however, the defendant healthcare providers refuse to pay a fair amount, our team recommends that we go to a trial to receive fair compensation. The attorneys at Morris James have tried many cases to verdict and know how to fight for their client’s right to fair compensation. 

How is medical malpractice pain and suffering calculated?

Although every state is slightly different, many states ask a jury to evaluate an injured party’s pain and suffering by considering a number of factors. Those include the injured party’s physical pain caused by the injury itself, any discomfort resulting from necessary medical treatment, and mental anguish and other emotional stressors from the injury. A jury can also consider disfigurement and loss of ability to enjoy life’s pleasures. The jury may also consider the costs of any medical care incurred, the costs associated with future treatment that is needed as a result of the injuries sustained, and lost earnings due the inability to work from the injuries. 

Because every case is variable, awards can vary widely even in similar cases. The medical malpractice attorneys at Morris James are keenly aware of how juries calculate damages awards given their experience and use this knowledge to leverage their clients’ cases to obtain the best possible outcomes, whether through settlement or at trial. 

What are the most common medical malpractice claims?

The attorneys at Morris James LLP have litigated almost every type of medical malpractice claim. Some common types of malpractice claims include:

Pregnancy care and labor & delivery management - The birth of one’s child is one of the most exciting and wonderful experiences in a person’s life. Unfortunately, this event can turn horrific if the medical providers involved do not act appropriately to monitor the mother and baby. If the healthcare providers fail to treat the mother or child appropriately during her pregnancy or her labor and delivery, that can lead to catastrophic injuries to both the mother, father and baby. Some of these injuries include physical injuries to the baby’s head, arms, or shoulders and can include devastating neurologic injuries like brain bleeds and cerebral palsy - injuries that a patient and family will need to face for the entirety of their lives. 

Hospital negligence - Patients go to a hospital for all types of care, including emergency room care, surgeries, births, and other issues. While at a hospital, patients can be treated by numerous healthcare providers, including doctors, physician assistants, nurse practitioners, and nurses. When these providers breach the standard of care and harm a patient, regardless of the type of care, the hospital may be responsible for those injuries. 

Failure to diagnose a medical condition - If the healthcare provider acted negligently in failing to identify, diagnose and treat the medical condition, and if that delay caused harm, the treating healthcare provider might be liable for medical malpractice. In certain cases, such as cancer, the medical condition leading to harm can be severe.  

Failure to follow-up - There are times when a patient expects a healthcare provider like a doctor to follow-up on a test, a visit, or a study. This typically happens after a patient has blood drawn for lab tests, has a biopsy performed, has an imaging study like an x-ray or other scan, or has an ongoing medical condition. If the healthcare provider doesn’t follow-up when he or she is supposed to do so, and if that failure to follow-up leads to a delay in a medical diagnosis, it can cause harm to the patient. In that situation, the failure to follow-up may be a basis for a medical malpractice claim. 

Failure to monitor - Oftentimes after a patient has a medical procedure, the patient is admitted to the hospital or another medical facility so that the medical staff, including doctors and nurses, can monitor the patient to make sure that there are no new problems that develop. Sometimes, that monitoring is done at the patient’s home by trained medical staff. If the medical providers caring for the patient do not monitor the patient correctly, they can sometimes miss important medical issues, and that can lead to harm. If the medical providers did not monitor the patient correctly, and this failure caused harm, the patient or the patient’s family may have a potential medical malpractice claim. 

Surgical errors - Despite the technological advances and techniques that surgeons have at their disposal, there may still be surgical errors. Sometimes, those are expected, but other times they may be due to the surgeon making unreasonable errors. If a surgeon makes an unreasonable error that causes harm, that can be a basis of medical malpractice. Some examples of surgical errors that might be malpractice include puncturing internal organs, injuring blood vessels, operating on the wrong body part, or leaving surgical instruments inside the body. 

Prescription errors - Healthcare providers may make mistakes with medications for patients. These errors include a doctor or nurse practitioner writing an incorrect dosage on a prescription, issuing a prescription that should never have been given under the circumstances, a nurse administering an incorrect amount of a medication, or medical equipment giving the patient the wrong dose of a medication. When that medical error causes harm, that may be a basis for a medical malpractice claim. 

Why choose Morris James to represent you?

The lawyers of Morris James have been fighting for victims of negligence in Delaware since we opened our doors in 1932. We deal with lawyers and insurance companies so that you can focus on healing. Our medical malpractice attorneys, who represented healthcare providers for many years in medical malpractice cases, know the strategies used to defend healthcare providers and how to combat them. We will fiercely advocate for our clients, going to trial when necessary, to obtain the financial compensation that you need to regain stability and security after your injury.

If you or a loved one has suffered an injury due to a mistake by a healthcare professional, we may be able to help. Our attorneys at Morris James are available to talk to you about your rights and the options that you have at this difficult time. Contact us online or call into one of our local Morris James offices in Delaware to find out more.

What Is a Wrongful Death Claim?

In Delaware, a wrongful death occurs when a wrongful act by one person causes the death of another person, for which that person could pursue a personal injury case had his death not occurred. Essentially, it is a personal injury case brought by the surviving family members of the deceased.

A wrongful death lawsuit is a civil matter instigated by private parties. In Delaware, it is permissible to file a wrongful death suit in addition to criminal charges filed by the state against the person responsible. However, criminal charges need not be pursued to mount a successful wrongful death case.

How is Liability Determined in Delaware?

In wrongful death cases, it must be demonstrated that the defendant is liable for the accident or circumstance that led to the death. Commonly, it must be shown that the responsible party was negligent in some way and that negligence eventually led to the death of the victim. Though it can be tricky to determine liability in some cases, a skilled attorney can help find and preserve evidence, talk to expert witnesses, and more.

Some of the more common wrongful death cases arise from:

• Car Accidents
• Truck accidents
• Motorcycle accidents
• Defective products 

• Premises Liability 

• Work injuries 

Can I File a Wrongful Death Lawsuit in Delaware?

In Delaware, the purpose of a wrongful death lawsuit is to benefit the spouse, children, parents, or siblings of the deceased person. The law is flexible when it comes to defining the ties between loved ones, and it is inclusive of many types of family relationships, but not all relationships recognize a legal right in every death.

Parents do not have to be married. Any child born of the deceased would also be entitled to make a claim, regardless of whether the deceased was married to the other parent or not. In some unique instances, the courts will allow someone other than these people to bring a wrongful death lawsuit.

If no parents, children, spouse, or siblings are available or want to file a wrongful death suit, then others related to the deceased through blood or marriage can make a claim. However, if you cannot claim a blood relationship with the deceased, you may not be able to make your case. For instance, if you were in a relationship with them but did not have children and never got married, you may have a difficult time proving your case in court. 

Additionally, if your loved one died out of the State of Delaware, surviving family members may still be entitled to make a claim. The specifics of the situation would dictate which state would be the most appropriate in which to file the lawsuit.

What Types of Compensation Can Be Recovered in a Delaware Wrongful Death Claim?

In Delaware, family members can recover compensation for:

• Funeral expenses (up to a certain amount): You can be repaid for what you paid to bury your family member. You may also seek payment for medical expenses related to the wrongful death.
• Lost income and benefits: The court can calculate how much your loved one would have made had they continued to work. 
• Lost contributions of child or spousal support: You can recover money your loved one would have paid to support you or your children if you did not work or had a monetary agreement in place. 
• Lost household services: You can be compensated for the everyday labor your loved one would have performed.
• Mental anguish: Dealing with an unexpected death can cause emotional pain and other mental health conditions. Damages reflect the turmoil suffered from your loved one's passing. 

How Do I File a Wrongful Death Claim in Delaware?

To file a wrongful death claim, you will need an experienced team of attorneys who understand Delaware's laws, such as the lawyers at Morris James. Before we file your suit, we will speak to you about the circumstances surrounding your loved one's death to get a clearer picture of what happened. We will need documentation, such as: 

• Accident reports, if available.
• Medical records.
• Any correspondence with insurance companies.

It may be painful to discuss the circumstances of a loved one's death. You may want to take notes that you can share with our lawyers. We will need to know everything we can about the deceased and the circumstances of their accident. While we recognize that this is not easy, it will help us better understand the cause of death and improve your chances of recovering damages.

What is the Statute of Limitations in a Wrongful Death Case?

You must file a wrongful death lawsuit in Delaware within two years of your loved one's death. If you do not file your claim in that time, the court will most likely reject it. Under the Delaware wrongful death statute, you can still file a civil action in the case even if criminal charges are pending. If you have any confusion over when you can file a case in Delaware or if you are eligible to bring a wrongful death suit, speak to an attorney. 

How Long Does A Wrongful Death Claim Take?

The wrongful death attorneys at Morris James are dedicated to fighting to protect the rights and the livelihood of every client. While our goal is to resolve every wrongful death case as quickly as possible and obtain the maximum amount of compensation, it is impossible to predict exactly what will happen.

While some straightforward cases can be settled in a matter of months, many cases require a longer time commitment. Typically, these cases involve negotiations with large insurance companies. Our wrongful death lawyers are committed to taking the time and effort necessary for a successful negotiation. However, some cases cannot be settled and must go to trial, an event that does take additional time and preparation.

What Kind of Compensation Can I Expect From a Wrongful Death Claim?

Settlement amounts vary from case to case. An award can be affected by income level, lifestyle, amount of available insurance, the circumstances of the death, and many other related factors. When you call our office, our experienced wrongful death lawyers can evaluate your case and help you determine how best to move forward.

What Are Serious Injuries in Delaware?

Serious injuries are those injuries that cause a victim and their family to need many years of medical attention, therapy, adaptive equipment, and more. While it is possible to obtain compensation for a wide range of personal injuries in Delaware, serious injuries are unique because they typically leave the victim with lifelong, debilitating physical and emotional issues. 

Serious injuries may be visible or hidden, but many persist for years and can affect all areas of a person’s life. Obvious injuries, such as limb amputations, severe burns, broken bones, and spinal cord injuries, can leave victims in physical pain and sometimes require home and vehicle modifications, transportation limitations, ongoing therapy, and more.

Other injuries can cause lasting physical and emotional pain for a serious injury victim. Brain injuries, concussions, scarring, and more may leave victims fighting private battles as they face the cognitive and emotional fallout of these injuries. Additionally, serious injuries can lead to the wrongful death of a victim, leaving a family without their loved one and sometimes without their main source of income or childcare.

What are Common Causes of Serious Injuries?

Serious injuries can be caused by any number of unfortunate situations, including someone else’s negligence. Negligence in Delaware is generally defined as one person’s failure to behave with reasonable care to prevent harm to those around him. We all have a duty to act in a manner that supports the safety of others. When a person fails in that duty and an accident or injury results, they can be held accountable for their negligence.

Negligence can manifest in a variety of ways: 

• Car accidents caused by impaired drivers, reckless drivers, and distracted drivers
• Truck drivers who drive while fatigued or who fail to properly maintain their vehicles
• Traffic accidents involving motorcycles, bicycles, and pedestrians
• Slip and fall injuries
• Injuries caused by defective products

What Types of Compensation Are Available to Delaware Serious Injury Victims?

Unlike many other states, Delaware does not limit, or cap, the amount of compensation that can be awarded to a victim. Victims can recover both economic and non-economic damages. While the courts do require victims to show how and why they may need compensation, a monetary settlement can cover many aspects of a victim’s care and daily needs.

A skilled injury attorney can help victims with serious injuries and their families recover the maximum amount of compensation to cover a variety of needs and losses, including:

• Lost wages

• Future lost wages

• Lost benefits

• Medical bills

• Future medical bills

• Rehabilitation

• Home and vehicle modifications

• Pain and suffering

• Loss of companionship or consortium

• Wrongful death

Securing this compensation is vital for victims of serious injuries. Their long-lasting injuries often affect the rest of their lives. If compensation is not secured in a timely fashion, it can inhibit the secure and successful future of the victim and their family. 

What Should I Do If I Have Suffered a Serious Injury in Delaware?

If you or someone you love has suffered a serious injury, time is of the essence. Typically, injury victims have two years from the date of the accident to file a claim. Lawsuits against a city, county, or state government must be filed within one year. In addition to the clock imposed by the law, bills will begin to arrive shortly after an accident and injury. Victims should not have to carry any undue financial burden after an accident. Getting started on your claim today will give you and your family the best chance at a complete and successful outcome.

Additionally, it is important to retain the services of a skilled and experienced injury lawyer. They can help you learn more about your rights under the law and begin to gather the evidence and witness testimony necessary to obtain the maximum amount of compensation. Discussing your cause with a Delaware injury lawyer will ensure that you fully understand the scope of your situation and help you avoid common pitfalls.

One of those serious pitfalls includes talking about your accident, injury, or legal case with an insurance company or representative for the person responsible. While these people may seem honest and straightforward, they are out to meet only their own goals. They do not have your best interest at heart, and they will use anything you say to their advantage whenever possible. The right attorney can help you avoid these situations and ensure the continued protection and success of your legal case.

While it can be difficult to know how to find the right attorney, the Delaware injury attorneys at Morris James have a long track record of success for Delaware injury victims, and our clients understand that we work tirelessly to provide a comprehensive case to meet their unique needs. 

1. What is considered neglect in a care home?

Neglect in a care home is the failure of the care home to provide services and goods to a resident that are necessary to avoid physical harm, pain, mental anguish, or emotional distress. The National Center on Elder Abuse classifies neglect as a type of elder abuse, which is any knowing, intentional, or negligent act by a caregiver or any other person that causes harm or a serious risk of harm to an older adult.

2. What constitutes neglect of an elderly person?

Neglect of an elderly person is the failure to meet that person’s basic needs, such as food, water, shelter, clothing, hygiene, and essential medical care. The CDC defines neglect as a type of elder abuse, and it is a growing problem in America’s aging population, both in residential facilities and in the community.

3. What are the warning signs of abuse or neglect in a nursing home?

Often a person who is abused in care does not, or cannot, alert anyone to the abuse themselves. Some of the warning signs of mistreatment in a nursing home or assisted living facility are:

• Physical: Bruises, scratches, burns, or other physical injuries, either as an isolated incident or recurring.
• Neglect: Pressure sores, poor personal hygiene, dirty clothes, unclean living conditions, weight loss and malnutrition.
• Emotional: Fear of certain carers or staff members, withdrawal from usual activities, anxiety, depression, or unease.
• Sexual: Bruises or injury to the genital area which may present as difficulty moving or sitting.

Financial: Unusual changes to financial or estate planning arrangements, including wills and powers of attorney, uncharacteristic or large purchases, cash withdrawals or bank transfers, missing financial documents or credit cards.

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