Tell Us About Your Case
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- What is medical malpractice?
- Who can commit medical malpractice?
- What must be proved in a medical negligence case?
- What is informed consent?
- How long do you have to bring a case for medical negligence?
- How much compensation are you entitled to?
- Will your case have to go to trial before a jury?
- How much will you have to pay in legal fees?
- Do you really need a lawyer to handle your claim?
- What is subrogation?
- What is a Special Needs Trust?
- Why choose WISEMAN BRAY PLLC ?
What is medical malpractice?
Medical malpractice occurs when a patient is injured as a result of medical treatment that falls below the acceptable standard of care within the medical community. Medical Negligence is another term for medical malpractice. Most medical malpractice claims result from one of the following:
- Failure to properly diagnose an injury or condition in a timely manner.
- Failure to provide proper treatment once a diagnosis is made.
- Failure to obtain informed consent prior to a medical procedure.
Medical negligence claims can be asserted against a doctor, hospital, nurse, clinic, chiropractor, dentist, pharmacist, nursing home, or other health care provider.
What must be proved in a medical negligence case?
To prevail in a medical malpractice suit, a patient must prove:
- The recognized and accepted standard of care in the local medical community, or in a similar medical community.
- That the healthcare provider failed to act in accordance with the applicable standard of care (referred to as a violation or "breach" of the standard of care).
- That as a result of the breach of care, the patient suffered an injury or damage that would not have otherwise occurred.
The applicable standard of care, and the breach of that standard, must be proved by expert testimony from a qualified healthcare professional in the same field who has practiced in Tennessee or in a contiguous state within a year immediately preceding the injury. As one might imagine, it can be very difficult to find a competent and credible doctor who is willing to testify against another doctor. And securing such an expert can be very expensive. Consequently, substantial claims and injuries are often required to make a case economically feasible and worthwhile to pursue.
Our lawyers have access to a wide network of doctors and professionals willing to review cases to determine their merit.
What is informed consent?
A doctor has a duty to properly explain a medical procedure, including an explanation of the possible risks and side effects, that would enable a patient to make an informed decision about whether to undergo the procedure or not. Remember, though, that consent to a procedure does not mean that a patient consents to having a procedure performed negligently. All patients are entitled to assume that their care will be provided with an appropriate degree of medical skill and judgment.
How long do you have to bring a case for medical negligence?
Under Tennessee law, a victim of medical malpractice generally has one (1) year from the date of injury to file suit, unless the injury is not discovered during that year. In that case, a victim may file suit within one (1) year from the date of discovery, so long as the suit is filed no more than three (3) years from the date of the negligent treatment (unless the provider is engaged in fraudulent concealment). Be mindful, however, that the additional time period is generally for discovery of an injury, not discovery of the doctor's negligence.
Determination of the proper time period for filing suit (referred to as the statute of limitations) can be confusing and complicated. You should contact a lawyer immediately if you believe you have been the victim of medical malpractice or you may risk forfeiting your legal rights.
How much compensation are you entitled to?
You are entitled to recover for lost wages, property damage, medical expenses, emotional distress, physical impairment, and pain and suffering. If the offending party's conduct was egregious enough, the Court may also require payment of punitive damages.
The amount of recovery varies from case to case and depends primarily on the nature and extent of the injuries and damages. There is no exact method or formula to determine a precise figure. In order to properly assess the value of your claim, an experienced attorney will consider such things as: the type of injury, the length of medical treatment, the type of medical treatment received, the cost of medical treatment, the part(s) of the body injured, the permanency of the injury, the family status of the victim, the age of the victim, whether the victim is sympathetic, whether a typical jury would likely identify with the victim, the egregiousness of the conduct of the offender, and the size of awards and settlements in similar cases.
Will your case have to go to trial before a jury?
More than 90-95% of all cases settle prior to trial. Trial can often be an all-or-nothing proposition, and settlement is a way to avoid that kind of high-stakes risk. However, cases do not settle by accident. The pretrial discovery process allows each party the opportunity to get an extensive preview of their opponent's case. And by the time the trial date rolls around, each side has a pretty good idea about the potential risks and rewards of going to trial.
The lawyers at Wiseman Bray PLLC understand that the best negotiating leverage to obtain a favorable settlement is a well-prepared case. The bottom-line is that the insurance company must know that we are not only willing, but also fully capable, and prepared to take your case to trial if necessary. This is accomplished by aggressive, thorough pretrial preparation that invariably communicates to the insurance company that we take your case seriously. We treat each and every case as if it will go to trial until such time as the insurance company makes a settlement offer that is acceptable to our client.
This strategy goes hand-in-hand with our overall firm philosophy. We carefully scrutinize every case, and we generally accept only those that we believe have merit and involve verifiable injuries. Indeed, unlike some large personal injury firms, we do not seek a volume business and do not accept cases merely because they may have some "settlement value." When we accept a case, our client knows that we genuinely believe the claim has merit, and that we will aggressively fight for her. We believe this also gives us added credibility when it comes to dealing with insurance adjusters and opposing counsel, which in our judgment leads to favorable settlements for our clients.
How much will you have to pay in legal fees?
Our firm handles personal injury cases on a contingency fee basis. This means that our fee is calculated as a percentage (generally 33%) of our client's total recovery. If we do not recover money for you, then you do not owe any attorney's fees. We do not charge by the hour in personal injury cases.
Under our state ethical rules, the client must ultimately be responsible for payment of any costs incurred (i.e. medical expert review fees, securing copies of medical records, etc.). However, we are permitted to advance (or pay up front) such costs so the victim will not be denied her legal rights simply because she did not have the financial capability to investigate and pursue a valid claim. Those costs are then deducted from the client's recovery at the end of the case. Each client's financial situation is different, and we handle the payment of costs on a case-by-case basis.
Do you really need a lawyer to handle my claim?
This is a common question in so-called "clear cut" accidents. Often, this question is driven by a suspicion that the victim will simply end up with less money because the lawyer will take a portion of the recovery to cover his fee.
At the root of this suspicion is the assumption that the lawyer will not be able to substantially raise the amount of the recovery. However, our experience has shown that most victims simply do not have the expertise or experience to secure the full recovery to which they are entitled, even taking into account any reduction in the recovery to account for attorney's fees and costs. This suspicion is often subtly encouraged by the insurance adjuster assigned to the claim. There are even cases where adjusters have been know to affirmatively pressure victims into avoiding seeking assistance from counsel (e.g. "If you want to hire a lawyer that's okay, but I'll have to reassign the claim to my supervisor, who is much more difficult to deal with.").
While it is certainly possible to handle your own claim, the relevant question is whether you are truly competent to do so. Frequently, the initial cooperation and attentiveness of the adjuster lulls a victim into a false sense of security. Remember, though, that insurance adjusters handle personal injury claims for a living, and that they have a natural advantage over untrained victims. You deserve a level playing field so that you can fairly compete with a trained adjuster who is working to minimize your recovery.
Further, the real work often begins once the recovery has been negotiated. Post-negotiation issues such as insurance subrogation can be complicated. For example, a victim may find herself obligated to reimburse her health insurance company (or Medicare or Medicaid) for payments made to medical providers to treat her injuries, under penalty of possibly being denied further health insurance coverage, which can be disastrous for persons with serious injuries. Further, unless settlement payments are properly structured and/or protected through a Court-ordered special needs trust , a victim may suddenly find herself ineligible for needed disability assistance, such as SSDI. The victim may also not know how to take advantage of certain tax benefits that may be obtained from structuring a settlement to make payouts over time.
What is subrogation?
As noted above, medical expenses are generally included as part of the damages recovered for injuries. So, when a health insurance plan or governmental plan (i.e. Medicare or Medicaid) actually paid those expenses, it is entitled to be reimbursed for its costs out of your recovery. This is the legal doctrine of subrogation. The rationale is that since the health insurance plan actually paid those expenses, it should logically receive that portion of the funds.
Having said that, it is important to continually coordinate efforts with the health plan to ensure that all relevant medical expenses are included as part of the claim in order that the victim is not in the position of later learning that what she thought was a fair recovery actually is not, due to a higher than expected subrogation claim by the health insurance company. It is often difficult, for example, for the victim to know the precise amount and breakdown of the medical expenses incurred (i.e. have you ever tried to decipher an Explanation of Benefits (EOB) received from your insurance company?).
Fortunately, it is also possible under certain circumstances to negotiate with the health insurance provider to reduce their subrogation request, sometimes substantially. This depends on the health plan involved (some are routinely easier to deal with than others), the applicable law, the amount involved, and the nature and extent of the victim's injuries. Government health plans generally have specific, yet complicated, statutory formulas for determining the amount of allowable reduction of the subrogation interest.
Negotiating a reduction of the subrogation interest can frequently be as difficult as negotiating the recovery itself. The attorneys at Wiseman Bray PLLC have experience protecting the value of our clients' recoveries, and we stay abreast of cutting edge developments in the law of subrogation.
CASE STUDY: Client received significant spinal injuries requiring over $325,000 in medical expenses. Due to insurance limits, however, the maximum recovery available was only $250,000. Our firm negotiated with the health plan and reduced the subrogation claim to $0.00 so that our client was able to keep her entire share of the recovery.
What is a Special Needs Trust?
Many persons who are disabled as a result of accidents can qualify for much-needed government assistance programs. However, unless properly handled, a settlement or judgment that is in excess of very limited exempt levels, may disqualify even the most severely disabled person from a wide variety of government assistance programs and services. Many of those services are difficult, if not impossible, to purchase outside of the government assistance programs. For that reason, Special Needs Trusts (SNTs) are often used to receive and manage negotiated settlements and judgments for those with disabilities.
Two "control" options are generally available for managing assets of an incapacitated individual: 1) guardianship (including conservatorship), or 2) trust. Assets held in a guardianship belong to the ward, and thus by definition are "available" to him or her for purposes of benefit eligibility determinations. Assets held in certain trusts belong to the trust, not to the beneficiary. To avoid having trust assets counted as "available" to the beneficiary as an asset or resource, the trust is structured such that the beneficiary has no ownership interest in, and is not entitled to demand payments from, the trust.
While most attorneys who represent severely injured clients do an excellent job in the preparation and presentation of the liability/personal injury case, both in settlement discussions and in litigation, it is imperative to have an attorney who understands the big picture, and who understands that a favorable settlement or judgment can have disastrous unintended consequences if it is not structured properly. Issues involving competency to properly hold and manage the proceeds of litigation must also be considered.
The 1993 Omnibus Budget Reconciliation Act (OBRA) validated the use of SNTs for disabled persons in combination with their continuing eligibility for needs-tested, disability related federal programs. The relevant portion of the Act provides that assets held in such trusts shall be disregarded when determining the eligibility of beneficiaries of those trusts for federally funded disability related benefit programs.
Though less important now as a result of the 1993 OBRA amendments to Medicaid eligibility rules, constructive receipt of settlement proceeds by the client should still be avoided. State and federal court rules applicable to clients under disability should be utilized to establish jurisdiction to allow the court to direct settlement or judgment proceeds to properly drafted trust instruments. This allows the attorney with the assistance of the Court to protect the best interests of the disabled client.
At Wiseman Bray PLLC, we have an in-house attorney who practices specifically in this area in connection with other estate planning and asset protection services.
Why choose WISEMAN BRAY PLLC?
Our lawyers are well-trained, and we can properly evaluate and timely prosecute your claim. Further, we carefully scrutinize every case before agreeing to accept it, which means that our clients know that we genuinely believe their claim has merit, and that we will be aggressive and fight for them. It also permits us to avoid a reputation for filing questionable lawsuits, which we believe affords us a greater level of credibility when it comes to dealing with adjusters and opposing counsel. For obvious reasons, this ultimately benefits our clients.
Our philosophy is quality over quantity, and as a result, we believe our clients receive a high level of service and attention because we are able to focus our time and resources effectively.
Further, we have historically represented both plaintiffs and defendants in personal injury claims, which we believe gives us an added edge. Because we have experience on the defense side, we have worked with adjusters and insurance companies, and we believe we know how they approach and evaluate claims. This experience also provides an added measure of credibility when dealing with those adjusters and the attorneys they hire to represent the interests of the insurance company.
The attorneys at Wiseman Bray PLLC also have experience protecting the value of our clients' recoveries once they are obtained, and we stay abreast of cutting edge of developments in the law of subrogation, taxes, and the use of special needs trusts.
We would be honored to review your case free of charge. Please either submit an online request for a Free Case Review , or call to speak with a lawyer at 901.730.4952.