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A Study on Compensation for Damages in Medical Malpractice Lawsuit

  • Legal Theory & Practice Review
  • Abbr : LTPR
  • 2016, 4(2), pp.151-181
  • Publisher : The Korea Society for Legal Theory and Practice Inc.
  • Research Area : Social Science > Law

조민석 1

1서남대학교

Candidate

ABSTRACT

This paper is about "A Study on Compensation for Damages in Medical Malpractice Lawsuits". It seems that such tendency is influenced by promoted consciousness of patients in their right, collapse of reliability on medical service, and increased opportunities of legal structures. The damages to patients due to medical services are called medical accidents in medical services and only the faults are caused by doctors(medical institutes) are called medical faults. As they are provided to improve patients' health or treat their diseases even though medical services accompany invasion to human bodies. There are many precedents that blame liability on illegal behaviors. it is difficult for patient to demonstrate the imperfectness of the medical service because he is not professional. When a doctor or other health care professional makes a mistake that ends up causing harm to a patient, that error can (though it doesn’t always) lead to a viable medical malpractice claim. So let's assume that you’ve done a little research, you believe in your case, and so does your lawyer. Keep in mind that establishing a doctor’s liability for harm to a patient is a complex process, and you and your legal team are going to be in for a fight. So let’s look at what it takes to prove a medical malpractice case. The majority of medical malpractice lawsuits reach settlement before a verdict is reached at trial. But medical malpractice lawsuits do reach the trial phase a little more often the most injury-related cases, since health care professionals (and their insurers) tend to dig in their heels and demonstrate more of a willingness to let things play out in court. That means you don't have to pay your attorney a representation fee unless the case reaches a favorable outcome for you, meaning you receive a settlement (before trial) or a jury rules in your favor (after trial). If a favorable outcome is reached, the attorney will receive an agreed-upon percentage of your settlement or judgment (usually around 33 percent). You may have to pay expenses associated with your case, regardless of whether you win or lose, so be sure you understand the fine print of any contract you sign. If this problem is abandoned and offenses and defenses between the doctor and the patient are observed, equity and fairness pursued by the civil procedure can not be achieved. Meanwhile, if a disadvantage is given to the doctor in the lawsuit in consideration of non-professional aspect of the patient, it is also unfair. this study is to parallel a comparative analysis and a review on precedents in consideration of reality of the problem. Medical malpractice lawsuits are usually based upon a claim that a health care provider was negligent. To establish negligence, the plaintiff(patients) must prove the practitioner’s actions fell below the accepted standard of care, i.e., the degree of care a reasonable, similarly qualified health care provider would have provided under the same or similar circumstances. Establishing that a provider’s actions fell below the standard of care often involves the expert testimony of other health care professionals in the same field of medicine. Frequently patients are unconscious when the negligent act occurs or there is insufficient documentation regarding the health care practitioner’s participation during the medical procedure. When this is the case, it may be difficult to prove negligence, even with the assistance of experts. In such circumstances, some states allow patients to rely on a legal doctrine called “res ipsa loquitur” to establish liability. In conclusion, It should be amended that "Act on remedies of Medical malpractice and adjustment of medical dispute" be to include “res ipsa loquitur” Consider an Out-of-Court Settlement Medical malpractice cases can be timely and costly, which is why most medical malpractice cases are settled out of court. In addition, because medical malpractice insurance companies reject a significantly large portion of medical malpractice claims, it may be in your best interest to settle out-of-court or risk having no case at all. Keep in mind, however, that if you believe you have a strong case, then you should seek a larger settlement. Contact a Medical Malpractice Attorney Finding a qualified medical malpractice attorney can mean the difference between receiving compensation for your injuries and walking away empty-handed. An experienced attorney will be able to discuss the strengths and weaknesses of your case and advise you on a course of action moving forward. A good first step in finding the right attorney is to get a free claim evaluation from a medical malpractice lawyer.

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