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How long after a death can you sue a hospital?

Everyone who enters a hospital hopes the professionals who work there will do their best to address the health issue and realize a positive outcome. Sometimes, someone’s condition is beyond the capabilities of a given hospital or the patient is too far beyond the point where medical attention can address their issues. Other times, however, a critical mistake, or a series of them, can result in the wrongful death of the patient that could have otherwise been avoided. 

In this instance, the patient’s caregivers and family can file a claim against the hospital to reconcile the malpractice that occurred. In this article, we will explore how long after a death you can sue, what you’ll need to make the claim and the types of claims for which you can make a case.

Eligibility for making a claim

Medical malpractice happens when a doctor or other medical professional harms a patient by not competently performing their job. If a wrongful act happens, will have up to three years after the negligence occurred to file a claim. There are some states that allow for an extension of up to 12 years, such as in Victoria, but these are only for special cases. However, the details of a death caused by medical malpractice may come to light much later. 

If you think their medical negligence occurred while your loved one was being cared for, you should seek legal advice from a wrongful death attorney as soon as possible.

There are general principles and rules that you can follow to get started in most cases. Here is an overview of the steps you need to take to prove medical malpractice resulted in a wrongful death.

The injury led to specific damages

Your claim cannot be eligible for a malpractice lawsuit without there being some type of injury where the patient suffered harm. There are four types of damages a patient can encounter that qualify for a lawsuit:

  • Metal anguish.
  • Physical pain.
  • Additional medical bills.
  • Lost work and earning capacity. 

The doctor’s negligence led to the injury

Because of the nature of a hospital, the patient is normally already ill or in some type of critical condition that necessitates the visit. In this case, it may be difficult to prove that a doctor’s negligence caused a  patient’s death. To which, the claimant will need to prove that it’s more likely than not that the death was a result of a medical mistake. 

There was a doctor-patient relationship

In order to file a claim against a doctor or medical professional, there needed to be an agreed relationship between the two parties where the patient required service and the doctor accepted. This may seem an obvious part of the qualification, but there may be questions related to whether or not the physician treated the patient directly, such as a professional asking a colleague for advice. Such a colleague would not be eligible for a medical malpractice claim.

The doctor was negligent 

In order to file a claim against a hospital, however, there needs to be an event that caused the patient harm in a way that could have been avoided by another medical professional with the same tools and understanding of the situation. A medical expert’s job is to be reasonably skillful and careful about their profession. When this standard is called into question is when a medical malpractice case can be made.

Who pays for the compensation?

Similar to how injury cases are compensated, a wrongful death lawsuit is covered by the insurance companies involved. Medical professionals are required by law to have Professional Indemnity Insurance to cover any damages.

Keep in mind that no matter if it was one hospital employee or many, you can still file a medical malpractice lawsuit against them. It may not have been one instance where a professional made an egregious mistake but a series of small errors by several people that eventually led to the death of the patient. No matter how many people are responsible for the death, you still may succeed in the case with the right lawyer.

Hospital claims you can make a case for

There are several scenarios where you can make a claim against a hospital or medical professional due to malpractice. It could be anything from leaving a piece of equipment inside of a patient before closing up a surgical incision, to providing a drug under a wrong diagnosis that resulted in a heart attack. No case is too small or too big to make a claim for.

Most claims will fall under these three categories:

Improper treatment occurs when a patient received the wrong medical treatment or the treatment was not carried out properly. For example, a patient may need specific treatment and the professional under-prescribed medication. 

Failure to warn a patient about the risks of a medical procedure that resulted in the patient’s death. This could mean that the professionals involved did not share the full scope of the negative effects of the procedure with the patient and, therefore, the patient made an informed decision when they signed off on it. This is known as the duty of informed consent from the doctor. It follows the understanding that if the patient knew all of the risks related to a procedure, they might have elected not to have it. 

Failure to diagnose a patient can result in serious consequences for the patient and subsequently the medical professional. If a competent doctor were to look at the same situation and come to a different decision, you may have a malpractice claim.

A claim is not siloed to just the doctor or nurse that worked on your case. A lawsuit can be made on other medical staff, independent contractors working for the hospital or even systematic errors. Working with a personal injury lawyer that specialises in medical claims can help you better understand what type of claim to make and the steps you need to take along the way.

Roadblocks you may encounter along the way

As you may have already noticed, making a claim against a hospital is no walk in the park. Hospitals and lawmakers have put a lot of checkpoints along the way to filing in order to protect medical staff. It’s important to know the rules and procedures, so you and your lawyer have the best chance of succeeding in your compensation claim. 

Special medical malpractice review panels will be implemented by the hospital if the claim can not come to an initial settlement. The claimant will bring their argument to a panel of medical experts as a third-party review of the case. The panel will not have the authority to issue damages and this is not in place of going to court. However, the decision they come to will be presented at court. If the panel determines there was no occurrence of malpractice, the case will not go to trial. 

Expert testimony is required. Even if you’re working with a specialised lawyer, a medical expert will need to weigh in on the case to give their opinion — this is before the case goes to the panel for their review. However, if the negligence was obvious, such as leaving equipment inside of a patient, then expert advice is not necessary.

Malpractice lawsuits must be brought up soon after the death occurred. As mentioned before, you have 3 years to file a claim or up to 12 years, depending on the state.

Any instance where a loved one died after working with a medical professional is never an easy road to navigate. Sifting through the grief and trying to handle a lawsuit can quickly become overwhelming. Gerard Malouf & Partners offers no-obligation legal advice for anyone who needs help traverse a medical claim. Contact us today to get started.

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Gerard Malouf & Partners have provided friendly, experienced legal advice to communities across Australia for over 35 years. Our Personal Injury Lawyers have taken on ten’s of thousands of cases and we are proud to have won billions of dollars for our clients.
Meet the diverse and dynamic team of compensation lawyers and supporting staff that have made this all happen below. Our multi-lingual team can discuss your claims in Arabic, Assyrian, Turkish, Greek, Italian, French, Serbian, Croatian, Armenian, Mandarin, Hindi, Punjabi or Malayalam.
Meet the diverse and dynamic team of compensation lawyers and supporting staff that have made this all happen below. Our multi-lingual team can discuss your claims in Arabic, Assyrian, Turkish, Greek, Italian, French, Serbian, Croatian, Armenian, Mandarin, Hindi, Punjabi or Malayalam.

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