What is the Affidavit of Merit?

Thursday, October 27, 2016

We trust our doctors and other medical staff to put our best interests first, tending to our needs in a professional manner. While the vast majority of them do this, it’s not always the case. When a medical professional fails to adhere to a certain standard of care, he or she is being negligent. A breach of duty is the basis for a medical malpractice claim. Victims of medical malpractice are entitled to compensation, but they must adhere to certain procedures and file the appropriate documentation.

The Basics of a Medical Malpractice Claim

In general, to win a medical malpractice claim, you must prove three things:

  • That a relationship existed between you and the doctor. The distinction here is that you and the doctor had a professional relationship – in other words, he or she had to agree to render medical services to you. You can’t sue someone for advice you overheard at a party.
  • The doctor was negligent. There’s a difference between being dissatisfied with your care and true negligence. Negligence occurs when a medical professional fails to exercise reasonable care in the course of diagnosis or treatment. In legal terms, another doctor would have acted differently, given the same or similar circumstances.
  • The negligence directly led to your injury. Being “almost” injured isn’t proper legal grounds for a claim. Since doctors treat the sick to begin with, you must prove it was your doctor, and not your illness, that led to your injuries.

Medical malpractice claims have certain deadlines. Most important is the statute of limitations, which is two years from the incident that led to injury. Another important consideration is the Affidavit of Merit, a statement you must file along with your personal injury claim.

What is an Affidavit of Merit?

In legal terms, an affidavit is a sworn statement that essentially assures the “merit” of your claim – in other words, the extent of the defendant’s wrongdoing and the strength of your allegations. The affidavit of merit is a product of tort reform that most states enacted to reduce the number of frivolous lawsuits.

Language requirements for an affidavit vary by state, even municipality. But all affidavits of merit have three things in common:

  • An expert witness must sign off on it, and they must be in the same field of practice as the defendant. For example, a cardiologist could not be a medical expert in a case involving your obstetrician.
  • That expert reviewed your case personally, and;
  • That expert believes your case has merit. In other words, he or she would have acted differently from your doctor in similar circumstances.

The professional signing your affidavit of merit need not be an expert witness testifying in court. While some doctors may feel comfortable stating they would have acted differently, they may feel uncomfortable testifying against a colleague.

Additionally, your attorney may think that the expert who signed your affidavit might not be an effective testifying witness. Reasons for this can differ, but one possible reason might be that the doctor is very technical or not approachable.

Do I Need an Affidavit of Merit to Win?

All states require an affidavit of merit, but the time to file it varies. In Texas, you must file your affidavit of merit with your initial complaint, unless the statute of limitations for your case is within 10 days. In those cases, you have 30 days to file an affidavit of merit.

Failure to comply with these regulations could result in the courts dismissing your case. For the best outcome, get in touch with a personal injury attorney soon after suspected medical malpractice; he or she can help ensure a timely filing of all documentation.

Posted by admin at 10:12 pm

What are Common Signs of Nursing Home Negligence?

Thursday, October 20, 2016

Our nation’s elderly are our greatest living accounts of history. They’ve lived through many of our nation’s greatest moments and often have a story to tell. Unfortunately, not everyone treats senior citizens with respect. Nursing home abuse and negligence are on the rise – a recent study from Cornell University found the actual incidence of elder abuse is about 24 times higher than reported to law enforcement or social services. Of the many types of abuse, psychological abuse is the most common. Learn about elder abuse, the signs of neglect, as well as when you should consult an attorney.

What is Elder Abuse?

As defined by the Center for Disease Control and Prevention (CDC), elder abuse is any type of abuse or neglect of someone age 60 or older, performed by a caregiver, loved one, or anyone with whom there is an expectation of trust. Nursing home professionals, for example, should take care of residents.

While many types of abuse show a specific intent to harm, neglect is a little different. Nursing home neglect involves a breach of duty or providing substandard care to a patient, resulting in harm.

The Types of Nursing Home Neglect

Just as there are many types of abuse, there are also several different forms of nursing home neglect. The main kinds include:

  • Social and emotional neglect. Patients in nursing homes must be well cared for, and that means socializing and tending to their emotions in a positive way. When the nursing home staff repeatedly ignores or yells at a patient, it’s social neglect.
  • Personal hygiene neglect. Senior citizens must have their bedpans and sheets changed frequently. Often, they need help with tooth brushing, bathing, and laundering. Failure to provide this assistance is personal hygiene neglect.
  • Basic needs neglect. Aside from providing personal hygiene, nursing home support professionals have an obligation to provide their residents with a safe and clean environment, with plenty of fresh food and water.
  • Medical needs neglect. Nursing home residents may require medical care for diabetes, infections, limited mobility, or cognitive dysfunction.

What are the Signs of Nursing Home Neglect?

Generally, nursing home neglect will present warning signs. Such signs differ based on the type of neglect. Unfortunately, the elderly are often unable to advocate for themselves, occasionally lacking the mental capacity to do so. Like many victims of abuse, they may be afraid to speak up. If you have a loved one in a nursing facility, be on the lookout for signs of neglect:

  • Sudden or rapid weight loss may be a sign of basic needs neglect.
  • Persistent or recurrent bedsores or pressure ulcers may be an indication your loved one isn’t being turned often enough.
  • Repeated injuries from falls may indicate a lack of support.
  • Signs of dehydration or malnutrition: sunken in eyes, skin tenting, dry mouth, or cracked skin.
  • Withdrawn behavior or sudden changes in behavior.
  • Sudden changes in appearance, including changes in hygiene.
  • A change in interaction with other residents and staff: For example, a person suffering from neglect may become less friendly to those around them.
  • An unsafe environment: Slippery floors, poor lighting, and rickety furniture in a resident’s room are signs of an unsafe environment.

What Should I Do if I Suspect Elder Neglect?

The presence of any of these signs don’t necessarily mean elder neglect, but it’s always better to be safe than sorry. Report any suspected abuse or neglect to Adult Protective Services (find your local office by calling 800-677-1116). The agency will launch an investigation into your loved one’s case and take action if necessary.

If your loved one has been the victim of abuse or neglect, talk to a personal injury attorney.

Posted by admin at 10:37 pm