What is medical malpractice?
Medical malpractice occurs when a medical professional provides substandard or negligent care.
In Vermont, an injured party can only receive compensation for negligent care if it can prove the negligence and that the negligence caused an injury. The elements for proving a medical malpractice action are set forth in the Vermont Statute 12 V.S.A. §1908
For the purpose of this section, malpractice shall mean professional medical negligence comprised of the elements listed herein. In a malpractice action based on the negligence of the personnel of a hospital, a physician licensed under chapter 23 of Title 26, a dentist licensed under chapter 13 of Title 26, a podiatrist licensed under chapter 7 of Title 26, a chiropractor licensed under chapter 9 of Title 26, a nurse licensed under chapter 27 of Title 26, or an osteopathic physician licensed under chapter 33 of Title 26, the plaintiff shall have the burden of proving:
(1) The degree of knowledge or skill possessed or the degree of care ordinarily exercised by a reasonably skillful, careful, and prudent health care professional engaged in a similar practice under the same or similar circumstances whether or not within the state of Vermont.
(2) That the defendant either lacked this degree of knowledge or skill or failed to exercise this degree of care; and
(3) That as a proximate result of this lack of knowledge or skill or the failure to exercise this degree of care the plaintiff suffered injuries that would not otherwise have been incurred.
When should I seek advice from an attorney?
The sooner the better. Medical malpractice actions can be complicated and take a long time to investigate. Medical records must be requested, expert opinions must be procured.
The Statute of Limitations, or the time frame within which a lawsuit may be brought is set forth in 12. V.S.A. § 521:
§ 521. Medical malpractice
Notwithstanding section 512 of this title, and except as provided in sections 518 and 551 of this title, actions to recover damages for injuries to the person arising out of any medical or surgical treatment or operation shall be brought within three years of the date of the incident or two years from the date the injury is or reasonably should have been discovered, whichever occurs later, but not later than seven years from the date of the incident. No statute of limitations shall limit the right to recover damages for injuries to the person arising out of any medical or surgical treatment or operation where fraudulent concealment has prevented the patient’s discovery of the negligence. Where the action is based upon the discovery of a foreign object in the patient’s body, which is not discovered within the period of limitation under this section, the action may be commenced within two years of the date of the discovery of the foreign object.
Therefore it is best to contact an attorney as soon as you believe you may have been a victim of negligent medical and/or surgical care. If the negligence resulted in the death of a family member, a lawsuit must be brought within two years of the date of death.
How are attorney fees paid?
Fees are paid on a contingency basis. When financial recovery occurs the lawyer receives a percentage of the total recovery. There are additional costs incurred to pursing medical malpractice claims. Costs include but may not be limited to retrieval of medical records, expert fees, court fees, deposition expenses and more. We pay for these on-going costs unless the client is able to reimburse us throughout the process. Repayment occurs at the time of recovery.