In this video, Personal Injury Attorney Ben Schwartz answers a question from Will in Milford, Delaware. Will asks, “Is it possible to have a workers’ comp and a medical malpractice case from the same on-the-job injury?”

Hi, I’m Attorney Ben Schwartz, 

I have a question from Will in Milford, Delaware. Will wrote in and he said he thinks he has got a real stumper like “we are going to play stump the attorney,” but Will, you are going to find out I got an answer for every question. You can send me the question, ‘If I am injured on the job, I am taken to the hospital, and at the hospital, the doctor commits malpractice. Is that a workers’ comp case or a medical malpractice case?’ 

The answer is Yes! The answer is that it is a workers’ comp case, and it is a medical malpractice case. If you are injured on the job, you have a right to make a claim under your employer’s workers’ compensation insurance, and you are entitled to things, a bunch of things if it is a Delaware workers’ compensation case. 

I’ll give you some examples of those things. You are entitled to payment of your medical expenses that are reasonable and necessary as a result of the work injury. You are entitled to what is called total disability lost wages, you know lost wages while you are out of work as a result of the injuries sustained in the on-the-job accident. You are entitled to compensation for your permanent functional impairment. You are entitled to compensation for things like disfigurement or scarring and there are other things that you can get in a workers’ comp case. 

If you are taken to the hospital and the doctor at the hospital commits malpractice and causes further injury as long as it is foreseeable that that could happen as a result of the on-the-job injury you can claim the injuries from the malpractice as part of the workers’ compensation claim. Now conversely, the fact that you are injured on the job in the first place does not stop you from also having a medical malpractice case but what you are going to need to know is that there is a system of liens and credits in a Delaware on-the-job injury case. So, if workers’ comp pays you lost wages for being out due to the botched surgery. 

For example, then you make a medical malpractice case, and you claim lost wages from being out as a result of the botched surgery you have already been paid under workers’ comp, and you have to pay back the workers’ comp insurance company. That is the simplest explanation I can give. If the workers’ comp insurance company paid for medical bills resulting from the botched surgery, then in the by surgery case you claim the medical bills again and you are receiving an award for that you have to pay back the workers’ comp carrier. So, it does get rather complicated when you have an on-the-job injury and there is also a negligence case resulting from the on-the-job injury, but it is something that we deal with quite often in my office. 

So, a good attempt at stumping the lawyer with a complicated question but for every complicated question I have a complicated answer that I will be more than happy to give you if you have a complicated question or I would prefer a simple question about the law or a legal practice or personal injury litigation, please send me an email. 

Thanks for watching!