If your child has suffered from HIE and you believe you have a malpractice claim, should you try to approach the insurers on your own? Absolutely not. You have one chance to get your case right, so you need someone on your side who knows the laws and how to fight malpractice insurers.
Why hire a hypoxic-ischemic encephalopathy attorney? It’s not just a matter of getting the most money from your claim, though that’s part of it. Many states have put a lot of red tape on malpractice claimants. Without a lawyer, you could get tangled up in it and get nothing for your trouble.
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The Services of a Lawyer
A lawyer both serves as a guide through the legal system and as an advocate for your interests. Through a medical malpractice claim, you can get financial compensation to pay for your losses and get more for your baby’s pain and suffering.
Merely making an accusation against your doctor isn’t enough. Claims must be backed up by evidence if you want to make a claim. If your case must go to court, you also need someone with the know-how to file a proper lawsuit and argue it before the court.
Among the many services of a lawyer, you’ll have someone who will:
- Explain your legal options and determine if you have enough evidence to start a case.
- Give you advice on how to protect yourself and your interests.
- Serve as your representative to the defendant(s) and their insurers, who may try to get you to say or do things that jeopardize your claim.
- Perform an investigation and subpoena evidence necessary to prove your claim and its value.
- Consult with experts to get proof that malpractice occurred.
- Accurately calculate how much your case is worth, which may include many damages you don’t know about or how to value.
- Negotiate with the insurers aggressively for your interests to reach a fair financial settlement.
- Prepare your case for court on time and with proper paperwork for a speedy trial.
- Argue your claim before a judge and jury, if the insurers refuse to listen.
Doing these on your own puts you at a tremendous disadvantage. Lawyers go through years of schooling before they’re even allowed to practice. It takes years more to get skilled at arguing malpractice claims. Hiring an experienced hypoxic-ischemic encephalopathy attorney is your best shot for proving your claim.
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The Requirements for Winning a Malpractice Claim
If you’re unsure why you need to hire an HIE lawyer for your malpractice claim, here are the basics of what you need to have a valid claim at all. Medical malpractice is a form of negligence and there are four components to a valid negligence claim. Only one is easy for a layperson to prove.
Proving a Duty of Care
Before you can hold someone responsible for an injury, you have to prove that they held some legal responsibility to keep the victim safe. This is called a duty of care. The doctor on your medical records and the shift schedule of the hospital can show all the people who held a duty of care for your safety as a patient.
You can also hold the hospital you were in accountable most times. Hospitals have a duty to hire qualified and trained people and provide adequate supplies and medical equipment. This means that you may have to pursue two or more cases to hold everyone accountable.
Breaking the Standards of Care
This component and the next are why pursuing a medical malpractice claim is so difficult. Doctors have a lot of legal leeway when their patients get injured or die. Medicine is not a perfect science, and no one is immortal. How do you prove that your medical team made a mistake in your case?
The fact is, without someone with a medical background, it’s impossible. In fact, HIE attorneys often have to consult with a medical expert before they can file a lawsuit. Many states have a legal requirement to have someone with a medical background vouch that the standards of care were broken.
The standards of care are instructions for medical professionals on how to do their jobs to an adequate standard. If they meet the standards, it may be impossible to show negligence. A medical expert can create an affidavit of merit showing what went wrong and what your doctor should have done to prevent the injury.
Causation
Breaking the standards of care isn’t enough to make a malpractice claim stick on its own. The breach also has to cause the incident that injured your child. The top causes cited in medical malpractice claims include:
- Wrongful death (common in HIE cases)
- Failure to treat or delayed treatment
- Poor outcomes or disease progression
- Complications from treatment or surgery
- Failure to diagnosis or delayed diagnosis
Whatever the cause you claim in your lawsuit, it must be proven through evidence and testimony. Without a knowledge of both medicine and law, it will be impossible to prove that a medical mistake caused an injury and meets the standard of malpractice.
Damages
Finally, you have to prove how you were damaged because of the incident and how much those damages are worth. An HIE lawyer knows how expensive it can be to pay for the care of a child with this condition and its consequences, but you may not.
An insurer who thinks they’re going to lose may try to send you a settlement offer before you can talk to a lawyer. It may look incredibly generous. It’s almost certainly less than you really deserve and they’re trying to pay you off before you find a lawyer.
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Conclusion
Without a lawyer on your side, getting a pittance from the insurer is the best-case scenario. But that’s not justice. When your child has suffered because of a negligent doctor, or even died because of what they did, you don’t want a pittance. You deserve to get the full value of your claim.
You absolutely should get the most money possible. The only way to get it is to hire an HIE attorney, and you can get one by contacting the Birth Injury Lawyers Group for a free consultation.
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