The scope of the medical malpractice problem.
Statistics vary dramatically on the number of medical mistakes that occur in the United States. Some studies place the number of medical mistakes in excess of one million annually while other studies place the number as low as a few hundred thousand. It is widely accepted however that iatrogenic disease (disease or injury caused by a medical mistake or medical treatment) is the third leading cause of death in the United States after heart disease and cancer. See, The JOURNAL of the AMERICAN MEDICAL ASSOCIATION (JAMA) Vol 284, No 4, July 26th 2000.
As an attorney who has limited his practice to representation of victims injured by someone else’s negligence, medical or otherwise, I have received thousands of calls from prospective clients over the last 20 years asking me if they have a medical malpractice case. Since medical malpractice litigation is very expensive and very protracted the lawyers in our firm are very careful what medical malpractice cases in which we choose to get involved. It is not at all uncommon for an attorney, or law firm to advance litigation expenses in excess of $100,000.00 just to get a case to trial. These expenses are the costs associated with pursuing the litigation which include expert witness fees, deposition costs, exhibit preparation and court costs. What follows is an outline of the issues, questions and considerations that the lawyers in our firm consider when discussing with a client a prospective medical malpractice case.
What is Medical Malpractice?
Medical Malpractice is medical treatment that breaches of the “Standard of Care” for medical doctors (or nurses, chiropractors, dentists, podiatrists etc…) which results in an injury or death. “Standard of Care” means medical treatment that a reasonable, prudent medical provider in the same community should provide. Most cases involve a dispute over what the applicable standard of care is. The standard of care is usually provided through the use of expert testimony from consulting doctors that practice or teach medicine in the same specialty as the defendant(s).
When did the malpractice happen (Statute of Limitations)?
In Ohio the medical malpractice statute of limitations is one year from the date of the malpractice, or the last date the defendant treated the plaintiff (victim) or the date the plaintiff discovered or reasonably should have discovered the malpractice. Some states have a two year statute of limitations. In Ohio if the victim is a minor the statute of limitations will not even begin to run until the minor becomes 18 years old. Be advised however derivative claims for parents may run many years earlier. If you think you might have a case it is important you contact a lawyer soon. Irrespective of the statute of limitations, doctors relocate, witnesses disappear and memories fade. The sooner counsel is engaged the sooner important evidence can be preserved and the better your chances are of prevailing.
What did the doctor do or fail to do?
Simply because a patient does not have a successful result from a surgery, medical procedure or medical treatment does not in and of itself mean the doctor made a mistake. Medical practice is by no means a guarantee of good health or a complete recovery. Most of the time when a patient experiences an unsuccessful result from medical treatment it is not because the medical provider made a mistake. Most of the time when there is a bad medical result it is despite good, quality medical care not because of sub-standard medical care.
When discussing a potential case with a client it is important that the client be able to tell us why they think there was medical negligence. As we all know people often die from cancer, heart disease or organ failure even with good medical care. However, we also know that people usually should not die from knee surgery, appendix removal, hernia repair or some other “minor” surgery. When something very unexpected like that happens it certainly is worth exploring whether there was a medical mistake. If in doubt most medical malpractice lawyers will discuss your case with you informally on the telephone. Most lawyers do not charge for an initial consultation in negligence cases.
So what if there was a medical mistake (proximate cause)?
In any negligence case not only is the burden of proof on the plaintiff to prove the medical malpractice the plaintiff must also prove that as a direct result of the medical negligence some injury or death resulted (damages). This is called “proximate cause.” Since medical malpractice litigation is so expensive to pursue the injuries must be significant to warrant moving forward with the case. All medical mistakes are “malpractice” however only a small percentage of mistakes give rise to medical malpractice cases.
By way of example, if a parent takes his son to the emergency room after a skateboard accident and the ER doctor doesn’t do x-rays despite an obvious bend in the child’s forearm and tells the dad his son has “just a sprain” this likely is medical malpractice. But, if the child is properly diagnosed within a few days and makes a complete recovery it is unlikely the “damages” are severe enough to undertake a lawsuit that likely would cost in excess of $50,000.00. However, if because of the delay in being properly diagnosed, the boy has to have his arm re-broken and the growth plate is irreparably damaged due to the delay then the damages likely would warrant further investigation and a possible lawsuit.
Other important considerations.
Other issues that are important when determining whether a client has a malpractice case include the victim’s behavior and medical history. Did the victim do anything to cause or contribute to the bad medical result? A common tactic of medical malpractice defense attorneys is to blame the patient. If it is a birth trauma case, did the mom have proper prenatal care, did she smoke or use drugs during her pregnancy? In other cases, did the patient follow the doctor’s orders, keep his appointments, take his medicine as instructed and tell the doctor the truth? These are facts that we need to know in order to determine whether the doctor will have a valid defense to the malpractice lawsuit?
What happens if it looks like there is a case?
If it appears that the patient may have been a victim of a medical mistake, the medical mistake caused a significant injury or death and the patient was compliant with his doctor’s orders, then we need to get the patient’s medical records. In most cases, obtaining the medical records involves nothing more mailing a release signed by the client to the doctor and/or hospital along with a letter requesting the records. In the case of wrongful death, an executor of the victims estate needs to be appointed in the local county probate court and then the executor can sign the release requesting the records.
Once the records are received we review them to make sure they are complete. It is not unusual in medical negligence cases to receive incomplete medical charts. Once all the relevant records are obtained they are provided to a qualified medical expert for review and opinion. If the case is against an emergency room doctor we have an emergency room doctor review the case, if it’s against a cardiologist we need to obtain an opinion from a cardiologist, etc.
Primarily, what we want to know form the expert is 1) was the medical care provided below the standard of care, 2) did the violation of the standard of care result in the patients injury or death? If the doctors opinion is favorable on both counts a lawsuit will be prepared on the client’s behalf and usually filed in the court of common pleas in the county where the malpractice was committed or in the county where the defendant lives. In some limited situations jurisdiction for the malpractice lawsuit could be federal court or some other court.
In sum, a good malpractice lawyer will carefully and thoroughly review any potential malpractice case before filing a lawsuit. It’s not fair to the victim or the doctors to file a lawsuit unless the expert tells us that he thinks there is a strong basis to bring the lawsuit. Due to the expense of pursuing a medical negligence action no good lawyer has the time or resources to waste on a “frivolous lawsuit.”
When consulting with a malpractice lawyer it’s important to accurately give the lawyer as much detail as possible and answer the lawyer’s questions as completely as possible. Prior to talking to a lawyer consider making some notes so you don’t forget some important fact or situation the lawyer might need.