Articles Posted in Legal Malpractice

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It’s not at all unusual for patients to put tremendous faith in the hands of their doctors. They often assume given their education and level of training that they are in safe hands. One study found that 70% of people totally trust what their doctor says and never even bother asking for a second opinion. Trust is a good thing, blind trust, however, can be dangerous. There are certain warning signs that all patients should be on the watch for to avoid having preventable mistakes happen to them.

The first sign is a sleepy doctor. According to the Journal of the American Medical Association, surgeons who slept for less than six hours the night prior to performing a surgery had twice as many surgical complications as those surgeons who got enough sleep. Many doctors understand the benefits of sleep but often cannot help being stuck at the hospital for terribly long shifts, sometimes even 24 hours. This lack of sleep combined with the stress of the job can result in poor decisions from the overworked docs. These wrong decisions lead to medication errors or misdiagnoses.

Another sign for worry is a doctor’s personal bias. According to a study conducted by The Journal of Law, Medicine & Ethics, some physicians admit to assuming that women exaggerate their symptoms. Due to this unfortunate and unfounded bias, women may not be given the treatment they deserve. Patients should be on the lookout for doctors who seem eager to impose their own views on a patient’s care.

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A Pennyslvania appeals court recently confirmed that the time limit for filing a legal malpractice claim (a claim alleging that a laywer mishandled a case) is strictly 2 years from the date the plaintiff should have reasonably learned about the malpractice. In Wachovia v. Ferretti, the Court rejected the plaintiff’s argument that it should be able to file a legal malpractice claim for 2 years from the date it learned of the amount of damages it suffered as a result of the malpractice. In rejecting this argument, the Court acknowledged that forcing a plaintiff to file a legal malpractice case while also dealing with the original law suit may result in one party making inconsistent arguments at times; however, the Court concluded that to allow a party to wait until it knows the full amount of damages caused by a lawyer’s malpractice (in other words, waiting until the original law suit is over) would result in stale claims.

In general, stale (“old”) claims are disfavored by the courts because witnesses’ memories begin to fade and evidence is lost or difficult to find. The problems inherent in prosecuting old claims is the reason that virtually all claims in the law (with the most notable exception of murder) have “statutes of limitations” or dates by which a claim must be filed or it is forever lost. In Pennsylvania medical negligence claims, the statute of limitations requires careful analysis by an experienced lawyer because although it is simply stated as “2 years,” it is actually highly dependent upon the facts of the case. In some instances, the 2 years begins to run on the date the doctor committed the negligence, in other cases it begins to run on the date the patient discovered that he/she was the victim of malpractice, and in the case of minors it does not expire until the minor’s 20th birthday. Although these “rules” sound simple, in practice each case must be carefully evaluated and legal claims (“complaints”) thoughtfully and artfully crafted to protect a patient’s legal rights. As with many areas of the law, the statute of limitations for similar types of cases varies widely state to state, which means that it is crucial to consult with an attorney who not only handles a particular type of case, but also one who is familiar with the laws of the state in which the case can be filed.

The state (jurisdiction) and county (venue) in which a case can be brought is another area of the law that seems simple at first blush (“my surgery was in Buck’s County, so my lawsuit will be in Buck’s County”). While this is generally true in medical malpractice cases, in other types of cases, such as motor vehicle accidents, the decision of where to file a lawsuit also often requires thorough legal analysis so that the appropriate place for the lawsuit is chosen to best protect the legal rights of the injured victim. For instance, even if an injured victim’s car accident was in Buck’s County, he/she may be better off filing a lawsuit in Philadelphia if the owner of the other vehicle lives in Philadelphia. As you can see, almost without exception a person’s choice of a lawyer in a medical negligence or other serious injury case can have a significant impact on the outcome of the case. At the Law Office of Leon Aussprung M.D., the facts of your case will be carefully evaluated to determine both the date by which your claims must be filed and the location in which your lawsuit should be filed, as well as all other crucial details such as the identity of appropriate witnesses and experts and the types of evidence that should be used at trial to explain your case to the jury.

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