Michael Hettinger Alan Harbaugh Todd Hindenach Kalamazoo: 324-6000 Battle Creek: 968-5000 Three Rivers: 278-7800 Sturgis: 659-6161 Coldwater: (517)278-6800 Dowagiac: 782-2500 Fax: 344-3601 Statewide: 800-294-5055

Actionable medical malpractice, also called medical negligence occurs when a physician fails to properly treat a medical condition and the negligent act or omission is the cause of a new or aggravated injury to the patient. Obviously the physician cannot be responsible for the original underlying medical problem. The negligence in medical malpractice cases can occur in a variety of situations including but not limited to:

• A delay or failure in diagnosing a disease; or
• A surgical or anesthesia related mishap during an operative; or
• The physician's failure to gain the informed consent of the patient for an operation or surgical procedure; or
• Failure to properly treat the disease; or
• Misuse of presecription drugs or a medical device or implant

It is the attorney's obligation to determine as quickly and efficiently as possible whether there is a good, actionable case. This is so because medical malpractice cases are complex, expensive to pursue, have a high risk of no recovery, and often involve a client's "personal" attachment.

The first step in the process involves the potential client entering into an agreement with the attorney in which agreement sets forth the method of attorney compensation. Typically the attorney agrees to advance all costs, only to be repaid costs in the event of recovery, and to work on a contingent fee basis, that is the attorney would receive a percentage of the gross recovery. Thus, the client will endure no economic loss in the event of no recovery.

During the initial client contact, the attorney will obtain a detailed medical history during which the attorney should obtain the names of all physicians and hospitals who have rendered medical treatment to the client. It is valuable for a client to prepare a written summary (timeline) of all medical treatment including dates, doctors, symptoms, conversations with medical providers, and treatment received. Thereafter, all relevant medical records are obtained by the attorney. In many medical malpractice cases, proof of negligence is found in these records.

In order to determine if there is "medical malpractice" it is necessary that a medical expert be retained to consult with the plaintiff's attorney. This expert should be well qualified to give a medical opinion, and is therefore frequently board certified in the relevant field of medicine. If, after a thorough review of the pertinent medical records, the medical expert concludes "with reasonable medical certainty that the action or inaction of the defendant physician was the cause of damage to the plaintiff," it is appropriate to file suit against the physician/hospital.

Filing suit begins the legal advocacy process which may cover a period of several years. During this period both parties exchange a series of documents. In the first stage, the legal pleading stage, the parties set forth with precision their legal theories. In the second stage called, the discovery stage, the facts to support the various legal theories are developed. If the parties are not able to resolve their differences the case, now in its third stage, will go to trial before a judge and jury.

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