Frequently Asked Questions About Medical Malpractice Cases
Do I have a medical malpractice case?
Whether you have a case or not depends on many factors that revolve around one central issue: whether the medical provider violated the applicable standard of medical care which resulted in serious injury or death to the patient.
In Alabama, a medical malpractice wrongful death claim may be filed by the personal representative of the estate on behalf of the decedent's survivors. The damages recoverable are distributed according to the Alabama statute of distributions.
Who can be held responsible: the doctor, the nurse, the hospital, the clinic?
Medical malpractice cases are always difficult. We carefully review your medical charts many times with the assistance of another doctor or nurse to determine what happened and who may be responsible. If we find that there was medical negligence which caused significant injury or death to the victim (you or a family member), and the potential damages recoverable far exceed the anticipated cost to pursue your claim, then we will proceed with a case against all potentially liable parties which may include the doctor, nurse, hospital or clinic involved.
Damages recoverable in an Alabama wrongful death medical malpractice case are considered to be purely punitive damages instead of compensatory damages. See Ala. Code § 6-5-391 (Supp. 1997) and § 6-5-410 (1993).
What is the statute of limitations involved?
The Florida medical malpractice statute of limitations in general expires two years from the date the incident of malpractice happened. In some cases it may be extended to two years from the date the patient should have reasonably discovered an incident of malpractice occurred, but even then the limitations period ends four years from the date the incident of malpractice happened. In some extremely unusual circumstances if the medical provider fraudulently conceals the incident of malpractice then the limitations time frame may possibly be extended further. In Florida a petition to extend the statute of limitations for an extra 90 days can be filed in any potential medical malpractice case but only before the statute of limitations would have otherwise expired.
All Alabama medical malpractice actions against health care providers must be filed in court within two years after the act or omission of medical negligence giving rise to the claim. However, that if the cause of action is not discovered and could not reasonably have been discovered within that initial two year period, then the case may be filed within six months from the date of such discovery or the date of learning of facts that would reasonably lead to such discovery, whichever is earlier. See Ala. Code § 6-5-482 (1993). Although this statute of limitations is subject to tolling for minority or disability, in no event may an action be brought more than four years after the act or omission, except that a minor who is under the age of four at the time of the act or omission accrues has until his eighth birthday to commence an action. An Alabama medical malpractice wrongful death action must be filed within two years after the decedent's death. See Ala. Code §§ 6-2-38 and 6-5-410 (1993). There are no tolling provisions for any extra time beyond that two year time frame in any Alabama wrongful death case, including medical malpractice death cases.
In the event of a patient's death who has the legal right to pursue the wrongful death medical malpractice case?
In Florida the personal representative of the deceased patient's estate (usually the surviving spouse) has the right to pursue a medical malpractice wrongful death case within the applicable statute of limitations time frame. The case is pursued for the benefit of statutory "survivors," which in the case of a medical malpractice related death means the surviving spouse and surviving minor children (children under the age of 25 years). Adult children (for this purpose meaning age 25 or above) of a deceased patient are excluded from pursuing a medical malpractice wrongful death claim.
Alabama Code Section § 6-5-410 is the Alabama Wrongful Death Statute which applies when a wrongful death occurs as a result of negligence, medical negligence or medical malpractice. The Alabama Code section provides in part:
- A personal representative may commence an action and recover such damages as the jury may assess in a court of competent jurisdiction within the State of Alabama, and not elsewhere, for the wrongful act, omission, or negligence of any person, persons, or corporation, his or their servants or agents, whereby the death of his testator or intestate was caused, provided the testator or intestate could have commenced an action for such wrongful act, omission, or negligence if it had not caused death.
- Such action shall not abate by the death of the defendant, but may be revived against his personal representative and may be maintained though there has not been prosecution, conviction or acquittal of the defendant for the wrongful act, omission, or negligence.
- The damages recovered are not subject to the payment of the debts or liabilities of the testator or intestate, but must be distributed according to the statute of distributions.
- Such action must be commenced within two years from and after the death of the testator or intestate.
What does it cost to hire your law firm?
The Baker & Baker Florida and Alabama medical malpractice law firm works strictly on a contingency fee basis. All initial consultations are free of charge. If we accept your case then we charge a fee equal to a set percentage of what we recover for you in your case plus out of pocket expenses we advance. If we do not win your case or produce a settlement that you approve then we are not paid a fee nor are we reimbursed for our out of pocket expenses. This system assures you of an experienced medical malpractice attorney even if you have no money and it assures you that we will give your case our best effort.
