If My Cancer Was Previously Misdiagnosed, Can the Doctor Be Held Liable?

If a doctor fails to detect your cancer in its initial stages, this mistake may be reasonable, as some cancers are not apparent initially. However, any competent doctor has a legal and moral obligation to use all the testing at their disposal to detect and predict your cancer’s existence.

If your cancer is not detected, it commonly will cause more severe damage or even death, which may have been mitigated or prevented. Also, many new preventative measures and tests are easily performed today, so there is no reason to order maximum procedures even if your cancer is suspected.

In Delaware, “failure to diagnose†is a singular type of malpractice where (for whatever reason) your doctor fails to take all necessary measures to determine your illness. It’s also possible that your doctor did the testing but failed to diagnose your condition correctly.

Medical malpractice cases are always challenging and must prove that the negligence of your doctor or healthcare professional caused you, as the patient, harm and that they owed you a “duty of care†that they did not uphold.

So, the simple answer is that if your doctor missed your cancer diagnosis, they may be sued, and you can sometimes be significantly compensated for your loss. However, the Delaware statutes pertaining to malpractice cases are detailed, complex, and stringent. You must have a knowledgeable Delaware malpractice lawyer’s advice, expertise, and guidance to litigate your case successfully.

What Is an “Affidavit of Merit†and Why Is It Included In My Malpractice Lawsuit?

As your experienced malpractice lawyer will explain, some medical malpractice cases are more “cut and dry.†For example, leaving an object in your body after surgery or prescribing the wrong medication. Although still legally challenging, proving a misdiagnosis malpractice case is even more legally problematic.

Therefore, in all Delaware malpractice cases, the statutes state that all medical malpractice lawsuits must be accompanied by an “affidavit of merit” from an expert witness in the medical matter in question.

This added, but necessary document must;

• Be executed and signed by a medical professional who qualifies as an expert witness in the matter at hand under Delaware law.
• Include all the expert’s current “curriculum vitae,” defining their qualifications, experience, and expertise in medical matters.
• Must show that the expert has “reasonable grounds” that the medical professional in question committed medical negligence when treating your case and failed to treat or misdiagnose you (as the plaintiff). The expert must state, and help your law team prove, that they have reasonable grounds “to believe that your applicable standard of care was breached,†which caused you injury or harm, and also that this breach was the primary and proximate cause of your injury or harm.

At times, these affidavits may be challenging to obtain, and If “reasonable cause” is shown, the Delaware court may grant a  60-day extension to file the document. Myriad medical records, treatment plans, tests, and other medical documents may have to be reviewed for the expert witness to come to their conclusion.

Your Delaware malpractice lawyer, experienced in these cases, will be aware of all the documents, records, and information needed to file and aggressively pursue your rights in these cases successfully.

What Is the Statute Of Limitations For My Cancer Misdiagnosis Lawsuit?

The Delaware “Statute of Limitations†is when you must file your medical malpractice or negligence lawsuit. In cases involving cancer, however, this “time period†can be legally tricky as you may have cancer but not be aware of the condition for months or years.

The usual Statute of Limitations in Delaware for medical negligence lawsuits is two years, beginning on the date of your injury (or misdiagnosis). It can be three years if the damage is unknown to you and could not have been discovered within two years from the date of the injury.

In the case involving cancer misdiagnosis, however, you theoretically could go years without the proper treatment for your misdiagnosed disease and have it worsen over that time; so, what do you do?

Delaware statutes have some conditions that your lawyer may use to extend the usual statute of limitations, but they are legally complex and challenging.

For example, the “continuous negligent medical treatment doctrine†may apply in cases where there was a continuous course of improper treatment (due to your misdiagnosis) so intertwined that it would be illogical to break it up into individual acts of negligence. Here, the statute of limitations begins on the date of the last negligent act in the continuum of negligent medical care.

Therefore, you may be able to file a lawsuit for consequences over negligent conduct. However, under the continuous negligent medical treatment doctrine, there are stringent legal rules to abide by, and the advice, guidance, and experience of your Delaware medical malpractice law team will be invaluable.

How Can I Hold a Doctor Accountable For My Cancer Misdiagnosis?

This is where your medical malpractice lawyer’s experience and aggressive litigation will be mandatory to draft, present, and win your case successfully.

We all know that for most cancers, the early and correct diagnosis and resulting treatment will make a significant difference in your prognosis. Therefore, your doctor must produce an accurate and correct diagnosis as soon as possible. If your doctor doesn’t dig deep enough into your condition, they may miss the connection between your symptoms and the medical condition; therefore, you do not receive the proper medical treatment to lessen or defeat your disease.

If you’ve suffered ongoing harm from your doctor’s failure to diagnose, your lawyer will prove that your physician owed you a duty of care, they breached that duty of care, and you suffered an injury. Accordingly, your injury was a direct result of the doctor’s breach.

All cancer medical malpractice lawsuits involve complex legal, ethical, and medical issues. As in any medical malpractice claim, delayed diagnosis of cancer lawsuits requires a sophisticated, experienced, and comprehensive team of legal malpractice professionals who have experience collaborating closely with medical specialists and experts.

Your future may depend on your case’s successful outcome, so it’s mandatory to have the most experienced Delaware medical malpractice law team on your side from beginning to end. 

My Cancer Was Misdiagnosed; How Should I Proceed?

You must consult with a resourceful, experienced, and thorough Delaware medical malpractice lawyer as soon as possible. Obtain a free case evaluation involving a full analysis of your delayed or misdiagnosed cancer claim.

The Delaware medical malpractice lawyers at Hudson, Castle, & Inkell, LLC  have a history of successfully representing victims of misdiagnosis cases. Time is not on your side, so call them today at (302) 428-8800 and get your future back on an optimistic track.

When someone receives a settlement in a personal injury case, they might assume that the total compensation is theirs to keep. In some cases, it may amount to hundreds of thousands of dollars, or even millions, in damages. It’s not money they received from working a job, and in many cases, it’s money that repays out-of-pocket expenses they either have already incurred or will. But that’s an assumption that could result in problems with tax agencies. Here’s what you need to know.

Do the Federal or State Governments Tax Personal Injury Settlements?

This is not a straightforward yes-or-no question. In most cases, no, the federal government won’t tax a personal injury settlement, as long as a physical injury (which includes illnesses resulting from being exposed to germs or something toxic) was involved. Suppose someone was not physically injured, but suffered something like post-traumatic stress disorder (PTSD) or emotional pain and suffering (for example, someone who files for emotional distress from employment discrimination wouldn’t necessarily have a physical injury). In that case, they might receive a settlement, but that settlement will be taxed.

States don’t usually tax personal injury settlements either, generally following the federal government’s approach in terms of physical injury or illness. This is because these types of compensation are considered to benefit the claimant for a number of things, including lost wages and medical bills.

However, there are a few exceptions to this overall policy.

Punitive damages. Punitive damages are taxable. That’s because this is a separate type of compensation that is less focused on the financial cost of the injury and more focused on punishing the liable party for what might have been extreme negligence. It’s not a repayment of out-of-pocket expenses, so it’s viewed as income.

Interest paid on the judgment. Often a judgment is awarded, but then the defendant appeals the case and it lasts several more months. In most states, the court would have decreed that the settlement be paid interest from the time it was first awarded. So if someone was awarded a settlement, but the appeals lasted another 18 months, interest would accrue for those 18 months. That interest is taxable.

Breach of contract. If your injury was caused by a breach of contract and that’s the foundation of your lawsuit, any damages awarded will be taxed.

Do I Need to Report a Settlement as Income?

If your case falls into the category of not being taxable (as described above), there’s nothing you have to do. If your settlement is taxable, you should receive a form 1099-MISC which you use to report the income on your tax return. On your tax return, use the “other income” box.

If there are questions about whether or not your settlement is partially or fully taxable, it’s a good idea to talk with an experienced personal injury attorney.

What About Workers’ Compensation Payments?

The federal government will not tax workers’ compensation payments as long as those payments were made through a workers’ compensation act. In Delaware, there is a workers’ compensation act in place, so someone receiving payments here would not be taxed.

However, just as with personal injury settlements, there are some exceptions for workers’ compensation payments. Often people who receive workers’ compensation also receive disability benefits of some type, including Social Security Disability Insurance (SSDI) or Supplemental Security Income (SSI). When someone receives both workers’ compensation and a disability benefit, and together those are more than 80% of the person’s full-time salary, the government would lessen the amount of one of the benefits to get the person to the 80% point. The amount of the reduction is called the workers’ compensation offset, which can be taxable if the person receives regular payments.

Lump-sum workers’ compensation payments can be taxable if they exceed 80% of the person’s salary as well.

What Else Should I Know About My Lawsuit Settlement?

There are several things to keep in mind.

There are two ways the settlement will be paid to you. Either you’ll receive a lump-sum payment (the whole amount at once, or large chunks at predetermined times), or you’ll have a payment schedule. At times, the settlement might use both of these approaches.

When it comes to payment schedules, there are two types: Decreasing and increasing. In a decreasing schedule, the amount paid is reduced over time, which is especially useful for people whose medical costs are highest at the beginning of the settlement phase. An increasing schedule does the opposite and is valuable for people whose medical costs will increase over time.

Lump-sum payments can be helpful if you want to invest them to earn returns, but those returns would be taxable. Not taking a lump-sum settlement means the total could be worth less if there’s an inflationary period.

Because compensation can be handled in a variety or combination of ways, each with its own set of pros and cons, having an experienced attorney to advise you is recommended.

What Should I Do if I Received a Personal Injury Settlement and Might Have to Pay Taxes?

Call Hudson, Castle & Inkell at 302-428-8800 to set up a free case evaluation. Our experienced, knowledgeable attorneys can guide you through what you need to know about your settlement and how to make sure you don’t run afoul of the tax agencies. We can also help you sort out the options for how to receive the settlement payments, the pros and cons of each, and which best fits your unique situation.

If you are involved in a personal injury case, it is possible that you may be required to undergo a Defense Medical Exam (DME), also known as an Independent Medical Exam (IME). This is an exam conducted by a doctor hired by the defense or insurance adjuster to evaluate your injuries and provide testimony in court. It is important to know how to prepare for this exam to ensure that your rights are protected and your injuries are properly evaluated.

1. Don’t Bring Any Documents: When you attend the exam, do not bring any documents with you. It is important to be honest and transparent during the exam, and bringing documents may suggest that you are trying to hide something.
2. Answer Honestly: It is important to answer all questions honestly during the exam. Do not exaggerate your symptoms, but also do not leave anything out. The doctor is evaluating your injuries and it is important that they have accurate information.
3. Keep Your Answers Vague: When asked about the accident, keep your answers vague. Try to limit the facts that you give as to what happened in the accident. If any part of your body did come in contact with any part of the vehicle inside during the accident, then please tell the doctor that too.
4. Don’t Block Yourself In: If the doctor asks you what you can do as a result of your injuries, give them a list. If the doctor asks if there is anything else, never say no. Just say that you can’t remember or can’t think of anything else at the time.
5. Be Aware of Surveillance: The doctor or someone from their office will be watching you from the time you pull into the parking lot until you leave. They will put a report together for the defense lawyer, indicating if you had any trouble walking or any other difficulties during the exam.
6. Be Honest and Transparent: Remember to be honest and transparent during the exam. Don’t exaggerate your symptoms, but don’t hide them either. If there is a list of things that you are asked to provide, and you can’t think of anything else, let the doctor know that’s all you can think of at the time.
7. Don’t Fill Out Any Forms: If you are asked to complete any forms, ask for them in advance. Do not fill them out at the exam.

In conclusion, a Defense Medical Exam can be a stressful experience, but with the right preparation, you can ensure that your rights are protected and your injuries are properly evaluated. If you have any problems or concerns during the exam, do not hesitate to contact your personal injury lawyer. They are here to help you and will fight for your rights.

Five Things You Must Know About Commercial Vehicle Accidents

Accidents involving commercial vehicles, such as trucks and tractor-trailers, usually cause severe injuries to the people who are hit, and they total the vehicles they’ve been driving. Such a traumatic experience makes it difficult for the affected drivers and possibly their passengers to do much of anything at the accident scene, let alone take the types of action that would help them get compensated later.

Nonetheless, if you’re conscious and able to move around, there are some important things you can do at the scene that can help you later as you fight to reclaim your life. Below you will find five things you must know about accidents with commercial vehicles.

1) What You Should Do (And Not Do) at the Accident Scene

Here are the most important things you should do at the accident scene if you’re able to safely do them, along with what you should absolutely not do.

The first thing to do would be to call 911. This will alert the police and also summon an ambulance if needed. Next, you should document what happened, both in images and videos, as much as you are able. Be sure to get the truck’s license plate information if possible, as well as the driver’s name, driver’s license number, employer information, trucking company name, and so on. Pictures are the easiest way to document everything. Make sure that you email the pictures to yourself so you do not lose them.

Also get the names and contact information of any witnesses, so you and your lawyer can contact them later. And, of course, be sure to get whatever medical care you may need.

On the other hand, here is what you should NOT do: If you have any back, neck, or head injuries, do not try to move. Instead, rely on the ambulance to transport you safely to the emergency room.

Furthermore, do not give any statements, apologize, or talk about the accident to anyone, especially anyone from an insurance company. Don’t agree to being recorded. Anything you say will be used against you as you try to get compensated for your losses. Be sure to hire a Delaware personal injury attorney who has plenty of experience with truck accidents to help you.

2) Why Is the Damage in Commercial Truck Accidents So Severe?

Tractor-trailers and 18-wheelers are huge. They can weigh up to 80,000 lbs when they are fully loaded, which is more than 20 times as much as your average car, which weighs around 3,000 to 4,000 lbs. No wonder that a crash simply decimates a car.

Trucks also need a longer distance to stop, especially in inclement weather. Most of the time, they operate at high speed because they travel on interstates as they strive to deliver their goods in a timely manner.

No matter whose fault it ends up being, a collision with a big truck will cause severe damage to any cars and drivers that are hit.

3) Who Is at Fault in an Accident With a Commercial Vehicle?

After an accident, it has to be determined who was at fault. However, this is not as easy as it may seem. In a surprising number of cases, it’s actually the car drivers who are at fault. They might have been tailgating or driving in the truck’s blind spot. They might have also pulled in front of the truck without leaving enough room for the truck to brake.

Truck drivers are often at fault as well. They are under a lot of pressure to cover vast distances to meet their deadlines for deliveries. There are strict rules about just how many hours truck drivers are allowed to drive before they have to take their required rest breaks. However, high-quality, restful sleep cannot be legislated and can sometimes be hard to come by.

As a result, truck drivers are often tired and occasionally even fall asleep at the wheel. That can be a fatal mistake. Similarly, like so many other drivers, they may also fall into the trap of distracted driving. A short lapse in attention can mean the difference between life and death.

They must also be well-trained, both in how to operate and navigate their rigs and in how to check and take care of them. That way, they’ll be able to keep them in prime operating condition and avoid any mechanical failures.

4) Other Parties That Could Be at Fault

Truck drivers and passenger car drivers aren’t the only parties that could potentially be found at fault for a truck accident. The next party would be the company that employed or subcontracted the driver for a specific job. They are responsible for hiring safe drivers and training them properly. They should also allow them to do their job safely without putting them under too much pressure.

Trucking companies also have maintenance crews that are responsible for keeping the trucks in safe driving condition. The manufacturers of the trucks or their parts can also be held responsible if they have sold defective parts.

Furthermore, the crews that have loaded the truck could have made mistakes and created an uneven load. This could have caused the truck to lose its balance and topple over, especially in a curve or while passing another vehicle.

5) Why You Need an Experienced Truck Accident Attorney

As you can see, finding out who was at fault can get complicated and holding the responsible parties accountable can be a challenge. Moreover, all this has to be done within the two-year statute of limitations.

While trucking companies and truck manufacturers have high insurance coverage, their insurance companies will fight hard to protect their bottom line. They will make it as difficult as possible for the accident victims to collect any compensation.

To have a fighting chance, you need an experienced Delaware truck accident attorney who knows all their tricks and is willing to pursue your case in court.

Considering the severity of the damage that commonly happens in collisions involving commercial vehicles, there is a lot of money at stake. Compensating the injured parties for medical expenses, lost wages, potential future loss of income as well as pain and suffering can involve millions.

An experienced lawyer will know how to track down the parties that are at fault and fight to get you a fair payout. At Hudson, Castle & Inkell we have the kind of experience that will give you the best chance at getting fairly compensated for your injuries and losses.

If you have been injured in an accident with a commercial truck, or if a loved one has died in such an accident, call or email us to arrange for a free case evaluation. We will be glad to help you.

There are four elements that make up a medical malpractice claim. They are the following:

• Duty,
• Breach of duty or any deviation from the standard of care,
• Damages suffered and directly caused by the breach of duty, and, finally,
• Financial loss caused directly by the damages resulting from the breach of duty.

They must all be proven for a medical malpractice case to be valid, and if even one of them is missing, a medical malpractice case is unlikely to succeed. Below, we will discuss each of the four elements in more detail.

The First Element of a Malpractice Case

The first element is duty. This addresses the duty that the physician or other medical professional has to provide their patients with the standard of care that is customary in their profession. There must also exist a doctor/patient relationship between doctor and patient for the patient to be able to expect that kind of standard of care.

The duty of care requirement also extends to institutions involved in people’s medical care, including hospitals, emergency rooms, private medical and dental practices, and everybody who works there.

The kinds of things that are part of a medical provider’s duty include keeping patients fully informed about their medical condition and treatments, including any possible risks of procedures that might be undertaken. Of course, they should also take great care while providing any and all treatments.

The Second Element of a Malpractice Case

The second element is the breach of the duty of care. This means that the medical care provider deviated from the standard of care that could have reasonably been expected. For example, they may not use the kind of diligence that similarly qualified colleagues would have used.

Such deviations could include misinterpretation of test results, failure to order the correct types of tests, misdiagnosis, and recommending or administering wrong dosage amounts of prescription medication. They may also use wrong surgical techniques and treat their patients improperly in other ways.

These kinds of issues are difficult for a patient to spot. That’s why you need a skilled personal injury attorney, who has experience with investigating these issues and can engage highly qualified experts to assist in the case.

The Third Element

The third element involves damages that were inflicted on the patient through the medical provider’s negligent action. There must be proof of a direct cause and effect relationship. These damages could be physical, emotional, or financial.

They may include hospital bills and other costs resulting from the original treatment, as well as additional costs that will come from treating the long-term effects of the medical negligence. Additional expenses may result from mental health therapy, physical therapy, and home care.

Other losses include lost wages and lost earning capacity, reduced ability to enjoy life, as well as other pain and suffering.

In addition to compensating the patient for any financial losses and their suffering, an experienced medical malpractice attorney can also pursue punitive damages, especially in cases of egregious negligence.

The Fourth Element

After proving all of the above, the patients and their lawyers must also prove that there was a direct cause and effect relationship between the negligent action and the resulting injuries and the damage they caused.

This is very challenging for the patient, but an experienced and skilled medical malpractice attorney, together with expert witnesses who have expertise in the involved specialties, can often make a powerful case for the patient. It is critical to have strong proof that cannot easily be swept aside by the defense. That’s key when it comes to the anatomy of a medical malpractice case.

The Statute of Limitations

As you can see, medical malpractice cases can be complicated and a challenge to pursue successfully. Evidence has to be assembled, which includes witnesses and medical records as well as financial statements. In addition, the right kinds of experts must be found.

For a heart injury, you’ll need a cardiologist, for a brain injury, you’ll need a neurologist, and so on. Assembling all these experts and materials can take a lot of time.

At the same time, you have to race against the clock of the statute of limitations. What’s more, you should take action and hire a lawyer as soon as possible because evidence is crucial and it can disappear.

What makes the statute of limitation even trickier is that sometimes, the damage caused by the negligent action is not immediately obvious and can in fact take years to be discovered. This is especially the case when surgical instruments and things such as gauze were left behind in the wound after surgery.

While the statute of limitation allows for such a delay, it only does that to a point. The regular statute of limitations for medical malpractice cases is two years from the date where the error occurred, while the time can be extended to three years in cases where the patient was not aware of the problem until later.

If a child younger than six was injured through negligence or medical malpractice, the patient’s parent must file the lawsuit either within 2 years of the error or when the child turns six years old, depending on which date is later.

In all of the above cases, whether it’s two years, three years, or the special case of a child under six, the deadline can be tolled or delayed for 90 days. To extend the deadline in that way, the patient or the patient’s lawyer must send a “Notice of intent to investigate†to every defendant involved in the suit, such as the medical provider, a staff member, or the hospital.

The notice must be sent by certified mail to the defendants’ normal place of business, and a return receipt must be requested. It must include the name of the defendants and a brief description of the issue that is under investigation. It also has to be sent before the statute of limitation expires.

What Else Should You Know?

You should also know that there is no cap on punitive damages in Delaware. And if the patient was partially at fault, they can still collect a proportionate percentage of damages, just as long as the patient’s share is less than 50%.

If you have been injured by a negligent healthcare provider and suffered severe damages, be sure to seek out an experienced medical malpractice attorney. Call or email us for a free case evaluation. We will be happy to talk with you.