Maine Medical Malpractice Laws
Each state has their own set of medical malpractice laws in place, and it is important for patients to understand those laws and how they could affect their case. The following are the basics of the laws in Maine.
Medical Malpractice in Maine
Suffering any type of injury at the hands of a trusted health care provider is nerve-racking at the least, but then adding up the complicated verbiage of Maine law, someone wanting to file a medical malpractice lawsuit could easily be terrified. There is the constant worry about where the money to pay the bills will come from, how long healing could take, and if life will ever be normal again. This is typical for anyone who is filing for medical malpractice in Maine. Instead only enduring the personal injury, injured parties need to seek the advice of a medical malpractice attorney and take a stand. The legal system can determine what type of compensation should be provided to the plaintiff from there.
What Medical Malpractice Is According to Maine Law
Medical malpractice is the result of a healthcare professional either harming a patient through his or her actions or negligence that led to an injury. This injury happened because the type and level of care that a patient received were not up to the level it should have been. Had another health care provider been treating the patient, it is reasonable to believe that the injury could and would have been avoided. The injury must be sufficient enough to require treatment and also have altered the injured party’s life in some remarkable way. It could also be that the malpractice led to the injured party’s death. There are four things that the court requires proof of malpractice cases. They are:
- Relationship: The court wants to see proof that some type of working relationship existed between the injured party and the medical staff member who is accused of causing the injury. For example, if the accused is a nurse, the court wants to see when and how the nurse cared for the patient.
- Standard of Care: The court also wants to know what level of care would have been appropriate for the person seeking medical attention. For example, if a person had back pain, what type of care would have been reasonable to expect to diagnose and remedy that condition?
- Level of Received Care: The court wants to see how the care that the injured party received was substandard to the level of care he or she should have reasonably expected. For example, if a patient came in with infection symptoms, did the attending physician check for an infection, or did he or she only check for something like neurological symptoms that were not present?
- Cause of Injury: The court needs to see that the accused is the cause of the injury, either by something he or she directly did to the patient, or indirectly by missing something obvious that he or she should have done. For example, the court wants to see that the doctor in question left behind a surgical sponge that led to the patient getting sick or hurt.
If all of these things can be proven in court, then the judge and jury can determine what type of compensation the injured party should receive. It is up to the plaintiff to prove his or her case in court. Due to that burden of proof, having legal advice is not only recommended, but it is also almost to the point of being required in order to get any type of award or settlement at the end of the case.
What Is the Medical Malpractice Statute of Limitations in Maine?
The statute of limitations in Maine is straightforward. Injured parties now have three full years from when the injury originally occurred to file his or her claim because of how Maine revised statutes around that changed the length of time. If the injury was not known as soon as it occurred, then the timer begins when he or she could reasonably have known about the injury caused by the health care provider.
There are a couple of statutes of limitations on the books for Maine, however. Another statute involves when a foreign object is left after a surgical procedure. When this happens, then the three-year timer starts when the injured party becomes aware of the object that was left behind.
Finally, there is another statute for minors. The laws say that a medical malpractice case must be filed within six years of the injury taking place to the minor, or within three years of that minor becoming a legal adult. The timer that applies is whichever comes first.
How to File Medical Malpractice Cases
In Maine, a case of malpractice starts with a Notice of Claim. This is a sworn statement that describes what happened and who caused the problem. A claim must be individually filed against each professional that is accused of malpractice in court for $200. These notices then go out to the accused, which then starts the timer for the response. Each professional needs to respond to the claim.
Once the responses are received, the next step is to gather a prelitigation screening panel. This panel looks into all the evidence provided by the prosecution and defense and determines if there is sufficient evidence to go further with the case. Ideally, the panel wants to remove frivolous lawsuits from the docket and give the court the ability to focus on only those cases with merit.
From the day the panel has all the evidence, another timer will begin, which gives the panel 30 days to determine if the case has merit. Once a decision is made, the report is sent to both sides. If the panel makes a decision unanimously for either the injured patient or the accused, the results become admissible in court. However, if the decision is not unanimous, the results are not allowed to be a part of the trial. For those times where the panel does decide unanimously, the jury can take the advice of the panel into account when determining what damage award should go to the plaintiff.
Gathering Evidence for Medical Malpractice Cases Takes Time
Many types of evidence will need to go into the courtroom to prosecute a case of malpractice. Ideally, a medical malpractice lawyer will be responsible for the case and the evidence gathering. However, an injured party could do this on his or her own. The evidence that should be gathered includes:
- Medical records: These records should be gathered from prior to the injury and carry on all the way to court-time. The goal is to show the health of the injured party before he or she was injured, then show the impact of the injury and how it has changed the plaintiff’s life.
- Statements: The court is going to want to see statements from everyone involved in the case on both sides. This is something an attorney should do as well to ensure the right questions are asked, and the right information is available for the court. The statements should be from the accused and the injured party, staff members who were around when the injury took place, anyone who was a direct witness in the room when it happened, and any bystander who was nearby at the time of the accident.
- Photographs or Videos: It is helpful to show the court any type of photograph or video of the injury itself and how it has progressed through treatments up until the plaintiff is in court. The more photographs or videos of the injury the plaintiff can bring to the court, the more the judge and jury will be able to see how impactful the injury really is.
- Surveillance: Ideally, the plaintiff will want to bring any video surveillance available to the court. This can show the injury happening, the effects of the injury after it happened, or even the state of mind that the plaintiff or accused was in before or after the injury.
Is There a Cap on Damages for Maine Medical Malpractice Suits?
When an injured party goes to court, the ultimate goal is to receive compensation to be able to recover without as much worry or concern, since the injury likely took away from the plaintiff’s ability to earn an income. There are multiple types of damages that the injured party can go after. They include:
- Monetary damages
- Non-economic damages
- Punitive damages
Each type of damages covers different aspects of injury or recovery. Monetary damages are there to cover bills or financial expenses that came from the injury. They include:
- Medical bills and expenses for the initial injury and treatment that the injury required
- Prescription meds that the plaintiff now needs to take to help with the recovery process
- Any medical equipment that the plaintiff needs to get through the day or during the recovery, like a hospital bed or walker to get around
- Medical expenses for home supplies needed for the recovery, such as wraps, bandages, and gauze
- Wages that the plaintiff could not earn during the recovery process because of hospital visits, recovery, or additional treatments
- Travel expenses back and forth for further treatment
- Future wages that the plaintiff may not be able to earn because of the restrictions the injury now puts on his or her ability to function
Non-economic damages are meant to help cover aspects of how the injury made the plaintiff feel. These can include:
- Money to cover the pain or the suffering the injured party went through because of the injury itself
- The anguish that the injured party may have felt because of the injury
- The embarrassment that the injured party may have sustained as a result of the injury, such as in cases of losing a limb or permanent disfigurement
- No longer being able to fulfill the same role in the household is considered the loss of consortium, and this is a common damage awarded after a guilty verdict
- Not being able to live life the same way can also be something a jury awards the injured party
- Children can ask for money to cover loss of guidance over the loss or permanent impairment of a parent, and parents can ask for money to cover the loss of love or companionship if they were to lose a child
In rare cases, Maine will also award punitive damages. However, these only apply when any type of health care provider was malicious in his or her harm to the patient or fraudulent in hiding the mistake. It takes a lot of evidence to prove this in court, and punitive damages are seldom given out.
Damages for medical malpractice in Maine are not capped under most circumstances. For traditional injuries, the judge and jury can award whatever they believe to be fair for those injuries. They can include current costs and future costs for both monetary and non-economic damages. The only exception to no damages is when a wrongful death claim has been filed. In this instance, the loved one of the injured party who filed the claim can only get a maximum of $500,000 for non-economic damages. However, in nearly all cases where damages are awarded, the medical bills and other expenses are fully covered by the compensation that gets awarded.
Who Can Legally File Medical Malpractice Claims in Maine?
When there is a claim for malpractice, the first person to file should be the injured party or his or her representative. This is usually a Maine medical malpractice attorney or law firm that the injured party hired. In the case where the injured party is too injured to file or has died as a result of the injuries, then the case must be filed by someone else. These parties include:
- Spouse of the injured party
- When the injured party is not married, the children of the injured party can file
- If the injured party was not married or had no children, the next people to file are his or her parents
- Siblings can file next if the parents cannot file or are deceased
- If no one closer can file, grandparents also have the right to file on behalf of the injured party
The court wants to see the same evidence, whether the injured party files or someone that knew the injured party files on his or her behalf. The point is being able to prove the accused caused the injury and how it affected the life of the injured party.
Who Is Responsible During Medical Malpractice Cases?
Any type of professional who was providing some type of medical care could come under a malpractice claim. Who can all be included in the case depends on where the professional was working, and whether or not the injury occurred while he or she was on duty at the time. Malpractice cases can cover everyone in the medical field, from an eye doctor in a Portland hospital to a pharmacist in a Falmouth drug store, and everyone in between. Some medical professionals these cases can be filed against include:
- Any type of doctor (general practitioner, OB/GYN, podiatrist, orthopod, psychiatrist, etc.)
- Anyone around during surgery (surgeon, surgical staff, anesthesiologist, etc.)
- Any type of dental professional (dentist, hygienist, oral surgeon, etc.)
- Any type of nurse or assistant (nurse’s aide, physician’s assistant, doula, orderly, etc.)
- Any type of therapist (mental health therapist, psychologist, social worker, etc.)
- Anyone taking labs (nurses, medical techs, phlebotomists, etc.)
Aside from people who can be held responsible for the damage, some places can also be held responsible. These places include:
- Medical clinics
- Medical office buildings
- Research facilities
- Nursing homes
- Medical testing facilities
- Hospice care centers
What If More Than One Entity Needs to Be Named in the Medical Malpractice Lawsuit?
In Maine, there is shared fault. This means that more than one entity can be named as the party responsible for the injuries. Plus, it also means that the injured party can be named as partly at-fault for the problem. In this case, it means that there can be fault from a doctor, the hospital he or she was working at when the injury happened, and the plaintiff, all at the same time.
When an injured party is found to be even partly at fault for his or her injury, it can decrease much he or she can receive as damages. So long as the injured party is not half or more at-fault for the injuries, then he or she will still get some portion of damages. It will just be less whatever percentage the court deems is the fault of the plaintiff. For example, if the plaintiff holds 10 percent of the fault for the injury, then he or she will receive 10 percent lower damages at the end of the case.
If the court determines that there are multiple entities at fault, then each will be given a percentage to show how much fault was his or hers to take. From there, the damages will be broken up into the same percentages. For example, if the court awarded $100,000, and the plaintiff was 10 percent at fault, then he or she will only receive $90,000. From there, the other parties would pay whatever percentage was theirs according to the court. If the doctor was 50 percent at fault and the hospital was 40 percent at fault, then the doctor would pay $50,000, and the hospital would be $40,000. This would total the $90,000, and the case would be complete.
Examples of Maine Medical Malpractice Injuries
Medical malpractice can take many forms and leave people facing different types of injuries as a result. Here are just a few of the types of malpractice that could happen and result in a lawsuit.
- Not getting a proper medical history and this leads to an injury to the patient
- Not reading through the medical history and this delays an obvious diagnosis and treatment
- Disfiguring a patient irreversibly
- Ignoring vital sign changes that were showing the deterioration of a patient’s condition
- Forgetting to remove all surgical tools and equipment during a surgical procedure
- Birth injuries where a baby or mother ended up injured or dead
- Giving the wrong medication to the patient because of failing to double-check the patient and medication before administering it
- Administering the wrong dose of medication to the patient and this leads to side effects
- Not discussing the side effects of a medication or treatment prior to giving it, and the patient getting injured as a result
- Not paying attention to test results and misdiagnosing a patient
- Not ordering the most logical tests, and as a result, it took longer to diagnose a sick or injured patient
- Ignoring obvious symptoms a patient is showing and not checking for the most obvious ailments those symptoms point to
- Not responding to a patient in need promptly, and that patient falling or leaving and getting sicker or dying
- Giving contraindicated medications that lead to the patient getting sick or dying
- Allowing a patient to leave a clinic or hospital before it was safe to do so
- Harming someone with any piece of medical equipment
- Damaging the spine during a chiropractic adjustment
- Performing the wrong operation on a patient, or on the wrong part of that patient’s body
When Devices Malfunction, Is That Medical Negligence?
The party at-fault when a device malfunctions is a little trickier than other malpractice cases. This is because it all depends on why the device malfunctioned. Sometimes, the doctor who put in the device did not get trained properly. Other times, the device itself was faulty. Still other times, it could be the result of the patient not keeping up with care that led to the failure. In these cases, the judge and jury need to hear what could have caused the problem and determine who needs to accept the blame.
If the doctor did not put the device in properly, did not update the device, or did not have the training on using the device properly, the doctor could be at fault. If the manufacturer has seen other cases where the devices have failed, it could be a problem with the device itself. This could be especially true if the manufacturer found out about issues with the device but did not disclose them or fix the device before it was put into more patients.
In cases where the patient was responsible for coming in and getting the device updated, then it could be the patient’s fault that the device malfunctioned. Many devices need updating on semi-regular schedules. If the patient did not show up at these appointments, it could be his or her fault that the device failed to work. However, if the doctor or manufacturer did not tell the injured party that the device needed these updates, the responsibility then falls back on the doctor or manufacturer. This is just part of what makes cases of medical malpractice so complex.
Medical Malpractice Attorneys Make Cases Easier to Win
Trying to go to court without a lawyer in cases of malpractice is never a good idea. Judges and juries understand that people can represent themselves in court. However, they do not take individuals who try and represent themselves nearly as seriously. For those who have suffered malpractice at the hands of a healthcare professional, having a lawyer can make all the difference in the case.
The accused is likely going to have several legal representatives in court, along with people who represent the insurance company working with the accused. If someone who was injured wants to stand a chance, he or she also needs to have an attorney as a way to level the field. The more complex a case can be made to look, the easier time the accused has at winning when the injured party does not have an attorney. It can easily be made to look like the case is unwinnable, which can make a plaintiff make mistakes or stop the case entirely because of the fear that can come with that intimidation.
When an attorney is present, the accused is less likely to try to intimidate the injured party. An attorney can give strength to the plaintiff’s claim. A claim that is filed without the help of an attorney could also miss some of the important steps that the law requires. This could cost the injured party valuable time, or the issue could be so severe that the case gets thrown out of court. That is one reason why a claim should never go to court without the aid of an attorney.
What Else Can an Attorney Bring to a Medical Malpractice Case?
There are several skills that attorneys have that regular people simply do not have when it comes to being in court and deciding how to proceed. Those skills make the difference between cases that are won in court and cases that get thrown out. Anyone who struggled with the effects of a malpractice injury in the last three years needs to seek out the advice of an experienced personal injury lawyer. It is the only way to proceed and ensure the best chance possible of getting a settlement to help.
Here are a few of the things that a lawyer can help bring to a malpractice case:
- Accurate Estimates: When hiring an experienced attorney who understands what goes into a malpractice case, he or she can give the injured party a very good idea of what to expect. This can help the injured party understand the court process, what a trial entails, and the estimated compensation if some were awarded.
- Knowledge: This is one of the most difficult areas for people to accept. While the entire case is important to the injured party or his or her family, the court does not care about all of it. The lawyer will gladly listen to what happened, but he or she is going to choose what should be brought up in court. What an injured party may believe to be the most influential part of a case may be something the court sees as irrelevant. In this instance, the injured party needs to trust his or her lawyer to bring up the right things.
- Communication: It takes saying the right words the right way when in court to get the point across. Explaining an injury takes skill and finesse. If the attorney does not have this type of skill, no one will understand what he or she is trying to say. The jury wants to hear how the injury altered the injured party’s life, so the attorney needs to paint that picture. An experienced attorney knows precisely how to do that.
- Medical Understanding: Most attorneys also have a good level of medical knowledge or understanding. He or she may currently work with a physician who helps with cases or may have done so in the past. It may be that the attorney also has a doctor within his or her network that the attorney can call and speak to. That way, the judge and jury hear the right information about the injury and how it has made life more difficult.
- Court Understanding: When an attorney has courtroom experience, he or she knows how to respond when something comes up that should not be talked about, knows what the deadlines are, knows how to address those in the courtroom properly, and also knows what buttons can be pushed at what time. An inexperienced attorney likely will not know about these nuances and may make courtroom mistakes.
- Negotiation Power: One thing an attorney has above nearly all laypeople is the ability to negotiate with high-powered attorneys and insurance companies. The accused is not going to want to pay a penny, even if he or she knows the mistake made was preventable. Instead, the goal is to pay out as little as possible. It is easy to push around an injured person who simply wants the ordeal over with. However, with an experienced attorney, there is no pushing this person around. It is his or her job to get what the client deserves, and that is exactly what the attorney will do.
- Reliable Network: Attorneys with experience know whom to rely on to get the information they need. This involves getting the records of what happened when the injury occurred, surveillance tapes, witness statements, and more. The network a good attorney creates makes the job much easier, and it also makes the attorney more powerful in court because he or she can trust the information received is accurate and will stand up in court.
What to Look for in a Medical Malpractice Lawyer
When picking an attorney for a medical malpractice case, the first thing any injured party looks for is experience. This is going to be the deal-breaker for most people. A new attorney may be fine for a lawn dispute, but when it comes to a serious injury, there is no substitute for experience. The risks that accompany losing a big malpractice case are far too high to entrust it to someone who may not know what he or she is doing. Here are some questions to pick and choose from that can help narrow down the attorney to select. By using the free consultation most attorneys offer, this can quickly help the injured party decide if a good attorney-client relationship is even possible.
- What practice areas is the attorney most versed in? Does the attorney only practice malpractice law, or is another facet of the law his or her primary area of expertise?
- What type of schedule does the attorney have in the near future? Is there enough room in that schedule to make time for this case?
- From the early evidence presented, does it even look like there would be a case? If so, does the attorney believe the case would be settled out of court or need to go to trial?
- What ballpark of the compensation would this case likely to get if a settlement or guilty verdict was the result?
- Is there anything obvious that stands out as a problem for the case? What are the weak points of the case, if any?
- How long has this attorney been in the medical malpractice field? What other fields did he or she specialize in before?
- How does this attorney handle fees? What does the attorney cover, and what would be the responsibility of the injured party? When would those fees be due to the attorney?
- Would the attorney come to the injured party if something simple needed to happen for the case? For example, would the attorney drive to the injured party’s Portland home to get documents signed, or would the injured party need to arrange transportation to the attorney?
- How often does this attorney win cases? What was the result of the last malpractice case this attorney tried? What is the biggest settlement this attorney has gotten for a client?
- How much medical understanding does the attorney possess? Can the attorney explain the basics of the injury back to the plaintiff to prove an understanding of the case?
- What types of professionals does the attorney have at his or her disposal to help with the case? Who will be doing the majority of communication, the attorney, or one of these professionals?
- How many cases has the attorney gone through a full trial with? Out of those cases, how many did the attorney win?
Going into court without an attorney is always a huge risk. Plus, it is incredibly stressful. Most people who go into court attempting to represent themselves in these cases get little or no compensation for their efforts. It is not like those who are arrested and have the right to counsel. In this case, it is the need for advice and guidance that cannot be overlooked.
Ways of Avoiding the Wrong Attorney
Most people will not encounter bad attorneys who only want a paycheck. However, they do exist. The best way to ensure the right attorney represents a case is to ask some questions before signing anything. Also, make sure to read anything the attorney would want to be signed carefully before putting your signature. Here are a few red flags that injured parties need to watch out for if they believe the attorney may not be working for their best interest:
- They talk about falsifying evidence to win the case.
- They allude to submitting the wrong documents for the case or the location of the case.
- They are unaware of what the deadlines are or if the case is approaching its time limit.
- They do not know the steps for filing a claim of malpractice.
- They have not done any recent cases they can show proof of.
- The attorney is not paying attention to the facts of the case as presented by the injured party.
If any of these pop up while talking with an attorney, it is best to walk away and seek the counsel of another. Most attorneys are very insightful and have a firm grasp of the situation. If the attorney that the injured party speaks to does not, it is best to avoid this attorney and take the time to find another.
Filing medical malpractice cases in Maine is not a difficult prospect, so long as it is done with the right people to help. No one should have to struggle with the pain from an injury that another person caused, especially someone in the medical field. Accidents happen, unfortunately, but there are options to make recovering from those accidents a little bit easier. The best course of action when an accident occurs is to gather up as much evidence as possible, then reach out to an experienced attorney who can guide the next steps. It is easy to avoid problematic attorneys with the right approach, so that way, the injured party can rest easy, knowing that the case is being taken care of by someone who truly wants what is in his or her best interest. Do not let the fear and anxiety of an unexpected injury alter life so much that it becomes miserable. Take the time to adjust to what happened and get whatever help is necessary to ensure that the accused pays for the ripples he or she created with that injury.