Hello friend. My name is XXXXX XXXXX welcome to JustAnswer. Please note: (1) this is general information only, not legal advice, and, (2) there may be a slight
delay between your follow ups and my replies.
I am very sorry for your husband's situation.is this lack of standard of care and consequences for my husband something considered medical or surgical malpractice by the legal system?
. However, the final decision would be that of the Court - if you even ever get there without settling. Allow me to explain.
To sue in a state court, one needs to have a "cause of action." There are numerous causes of action, such as "breach of contract
," "negligence," "fraud," "unjust enrichment," etc., as well as causes of action rooted in statutory law. Every state has their own although they are very similar to each other in every state.
"In a negligence medical malpractice case, the burden is on the plaintiff to prove the following elements of a cause of action: (1) the proper standard of care against which the defendant physician's conduct is measured; (2) an unskilled or negligent failure to comply with the applicable standard; and (3) a resulting injury proximately caused by the physician's want of skill or care." Keel v. Banach, 624 So. 2d 1022 - Ala: Supreme Court 1993
(internal citations omitted).
As you can see, this is fairly generic. The point is to allow the Judge (or a Jury, if either party requests a Jury) to decide how each situation fits into these three elements. Arguably from what you told me, there is a strong possibility of a case.
But it is unlikely that he would even get to trial here. Almost 90% of lawsuits for medical negligence settle out of Court. The medical entities have insurance coverage just for this matter, and they like to avoid the bad press and legal costs. They like to avoid suit in general when they can. Thus, a medical entity is more likely to want to settle this case even if it has a hint of some possibility of him winning.
May I recommend the ___ Bar referral program - here
. The attorneys are vetted and qualified. You should be able to find an attorney you are confident with and whom you can trust, and who is available ASAP.
The attorney should take this on a contingency basis, meaning they do not get paid unless you do. Usual set up is their take is 33% settlement, 40% win at trial, 45% at appeal; plus some office costs. Everything is negotiable.
I hope this helps and clarifies. Best of luck.
Gentle Reminder: Please use the REPLY
button to keep chatting, or RATE
my answer when we are finished. Kindly rate my answer as one of the top three faces
and then submit
, as this is how I get credit for my time with you. Rating my answer the bottom two faces does not give me credit and reflects poorly on me, even if my answer is correct.
I work very hard to formulate an informative and honest answer for you; please reciprocate my good faith. (You may always ask follow ups at no charge after rating