When they start practice, doctors take an oath to help their patients to the best of their abilities. At the very least, they promise to do no harm. Unfortunately, that promise is sometimes broken. Maybe the doctor was overworked and exhausted. Maybe a nurse made a mistake on your chart. Whatever the cause, a medical error can cause serious harm. If that happens, you may be entitled to compensation for the harm you suffered.
How long do you have to file a medical malpractice lawsuit?
Before we go any farther, a word on the statute of limitations. In Ohio, as in most other states, the law limits the amount of time you have to file a claim for medical malpractice. You must file within 1 year of the day that the injury became apparent. If you discover the injury within 1 year, you may provide notice to the doctor in question that you intend to file a claim. That notice buys you an additional 180 days, or 6 months, to file.
For injuries that appear later, the timeline is slightly different. You still have 1 year from the time you discover the injury, plus the additional 180 days if you give notice before the end of that 1-year period. However, you must file within 4 years of the medical procedure that caused the injury. After 4 years, you are barred from filing a lawsuit.
There are two exceptions to the 4-year rule. First, if you discover an injury more than 3 years after the incident that caused it, you have a full year after the discovery to file your claim. In other words, if you discover an injury 3 years and 10 months after the incident, you have until 4 years and 10 months after the incident to file your claim. Second, you can always bring a claim for injuries caused by a foreign object left inside you during surgery. That type of claim is not limited by the 4-year rule. For either of these exceptions, you’ll have to prove that you could not have learned about the injury early enough to file a claim within 4 years.
Ohio Medical Malpractice Timeline
So, you need to take action as soon as you realize that you’ve been injured. Now let’s take a look at the medical malpractice lawsuit process.
1. The Injury
The first thing that happens along this timeline is the injury itself. This may be a tricky day to pin down. In some cases, an error is immediately apparent. For example, there are horror stories where doctors have accidentally amputated the wrong limb. In other cases, the injury may not show up right away. It may take a while for you to start to experience the effects of taking the wrong medication, for example. For the purposes of medical malpractice, the timeline starts at the day that an injury either became apparent or should have been apparent to a reasonable person.
2. Contacting Your Doctor
The first step toward handling a medical malpractice issue is to contact your doctor. Your doctor may offer to remedy the situation without the hassle of a lawsuit. You may choose to contact the medical licensing board if your doctor is not willing to offer you a remedy. While the board can’t force the doctor to remedy the situation, it can put pressure on the doctor and may choose to start a disciplinary proceeding. If you can’t get the remedies you need by talking to your doctor, it’s time to consider a lawsuit.
3. Finding an Attorney
You’ll need to find an experienced medical malpractice attorney to handle your case. Medical malpractice cases are often very complex and involve large amounts of evidence and stringent legal standards. Look for a local attorney that has successfully handled lots of medical malpractice cases. Most attorneys handle medical malpractice cases on a contingent-fee basis, so you don’t need to worry about any out-of-pocket expenses.
4. Reviewing the Evidence
When you choose an attorney, she’ll start by looking at your medical records and the record of the doctor or hospital that allegedly caused your injuries. You’ll need to sign a release form allowing the relevant healthcare providers to give your medical history to your attorney. Your attorney will likely also look into the most current relevant medical literature and may contact doctors for more information about the type of procedure or illness you were originally treated for, the type of care you should have received, and the type of injury you suffered. Your attorney will also help you choose a doctor to provide you with a Certificate of Merit.
Before you can file a medical malpractice claim in Ohio, the law requires that you get a Certificate of Merit. Ohio Rules Civ. Pro. 10(D)(2). A Certificate of Merit is an evaluation by a licensed physician that asserts that you are, in fact, injured and that the doctor who was in charge of your care did not meet the standards of care in your case. In other words, the Certificate of Merit shows the court that you have a valid medical malpractice claim.
5. Filing a Claim
Each medical malpractice claim is different. The content of your claim will depend on the cause and extent of your injuries. You’ll need to work closely with your attorney to ensure that your claim covers all aspects of your injuries. If you fail to include something in the claim, you won’t be able to add it in later. Your attorney will handle the creation and filing of your claim. Once you file a claim, you are the plaintiff in the case. The defendant is the healthcare provider or providers that you’re accusing of malpractice.
Remember that the statute of limitations gives you a limited period of time in which to file.
6. The Medical Malpractice Tribunal
The first step in the litigation process in Ohio is a hearing before a Medical Malpractice Tribunal. This tribunal typically consists of a judge, an experienced litigator, and a doctor in the field of medicine most relevant to your claim. Your attorney will present an Offer of Proof to the tribunal — that’s a formal legal document including all the evidence for your claim and your Certificate of Merit. The tribunal will consider your evidence and determine if you have enough to go on to the next phase of the litigation.
If the tribunal determines that there is not enough evidence to go forward or that your injury was an unfortunate accident rather than the result of malpractice, you have two choices. You can either post a bond for $6,000 and go on in the litigation process or you can give up your claim. If you go on to win your case, your bond will be returned. If not, you’ll lose the money.
Assuming the Medical Malpractice Tribunal determines that your case should go forward, the next stage of the litigation process is called “Discovery.” In this phase, your attorney and the attorneys for the defense will have the opportunity to seek information from each other. At this point in the litigation process, they’ll conduct depositions with you and any healthcare provider relevant to the case. A deposition is a formal legal interview, given under oath. The information in a deposition is used in the trial as evidence. The attorneys for both sides will also request any relevant documentation from the other side, such as a hospital’s internal records or your medical history.
The discovery process often takes a long time — sometimes multiple years. At the end, both sides will know what the appropriate standard of care was in your case and whether or not it was met by your healthcare providers. They’ll be ready for trial; they’ll know what witnesses would be called and what they’d be expected to say.
8(a). Resolution: Trial
At this point, the case may go to trial. At trial, all the relevant evidence will be presented before a judge and jury. The trial will take several weeks and the outcome is not guaranteed. The trial process is demanding; you and your family will need to be there all day, every day. At the end, the jury will deliberate and decide whether the healthcare provider is guilty of medical malpractice. If not, the case is over and you may choose whether or not to appeal. Remember that the appeals process is time-consuming and expensive, so you’ll need to discuss the risks and potential rewards with your attorney.
If the jury decides in your favor, it will decide how much compensation you’re owed. The jury will consider two different categories of damages: economic and non-economic. Economic damages include the cost of treating the injury, any wages you lost because you were out of work, any loss of future earnings due to permanent injury, and other financial losses. Non-economic damages include loss of quality of life, pain and suffering, and other non-financial factors. Ohio law caps the amount of non-economic damages at triple the economic damages or $250,000, whichever is greater. Total damages cannot exceed $350,000 for a single person or $500,000 for a single case with multiple plaintiffs. If your injuries were permanent or catastrophic, you can recover up to $500,000 as a single plaintiff or $1 million per case with multiple plaintiffs.
However, most cases don’t go to trial. Most medical malpractice cases end in a settlement.
8(b). Resolution: Settlement
An out-of-court settlement is often the most attractive option for all the parties in a medical malpractice suit. Either side may make a settlement offer at any time after a claim is filed. That means a settlement offer could come early in the discovery process, saving you a lot of time. However, you’ll need to work closely with an attorney to make sure that any settlement you accept is fair. It should cover your medical expenses, lost wages, and other expenses.
In most cases, the defense of a medical malpractice lawsuit is handled by the healthcare provider’s insurance company. Their job is to pay you as little as possible. That means they’re going to give you a low offer. You and your attorney can negotiate the settlement until you find an amount that you’re happy with.
A settlement offer will depend on the strength of your case. The stronger your case, the more the defense will offer you in settlement. They don’t want to be found guilty in court, so they’ll offer you more money if they think the trial is likely to go your way. If your case is relatively weak, you’re likely to get a smaller settlement offer because the defendants don’t think you’ll win at trial.
Can I file a claim other than medical malpractice?
Remember that there are other options than a medical malpractice suit. If you were injured by a dangerous drug or a defective medical product, you may be better served by pursuing those claims rather than a malpractice suit. If a loved one passed away as a result of medical malpractice or due to use of a dangerous drug or defective medical device, you may also choose to bring a wrongful death suit. Speak to an attorney about your case to learn about your options and decide which is best for you.
A medical malpractice suit is a complicated endeavor and you shouldn’t face it alone. If you’ve been injured by a healthcare provider, contact one of the experienced attorneys at DGM&S for a free consultation. We’ll evaluate your case and help you determine how best to pursue your rights.
Prior to forming Dyer, Garofalo, Mann & Schultz, Doug worked as a bodily injury claims adjuster for a large insurance company. This unique experience has been a tremendous asset to Doug in his fight to achieve maximum cash settlements for his clients in minimum time. Since departing from the insurance company, Doug has dedicated his entire legal career to helping injured clients when they need it the most.