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What
is Medical Malpractice?
Medical malpractice is a failure on the doctor's part to follow the customary standards of care in the treatment of a particular patient, thereby causing injury to that patient. It is the same as medical negligence, which is the failure to use reasonable care under the circumstances, or the failure to have the requisite knowledge and skill to provide adequate care. In other words, the care has to be clearly sub-standard.
The issue is seldom an easy question because the "customary standard of care" depends on many different factors unique to each person's circumstance. For example, a woman coming to me with an obstetrical claim may have other medical factors, such as smoking or diabetes or high hood pressure which must be considered in the customary standard of care analysis. Sometimes there may be two or more acceptable standards of care, making the doctor's decision a judgment call.
Then the argument becomes a "battle of the experts" in which each side presents medical experts who give their opinion as to whether the judgment call was what a skillful practitioner would do, or whether it was inept or based on obsolete standards.
To determine whether medical malpractice occurred, the client's medical records must be reviewed by a medical doctor experienced in that area of medicine, and the doctor's opinion on liability will govern, not the attorney's.
Medical malpractice means a failure to follow the customary standards of care. The plaintiff has the burden to prove medical negligence. You do not have a claim against a doctor who was rude to you. If you change doctors, and your new doctor tells you that your previous doctor did something "wrong" or failed to do something, you do not necessarily have a claim. If you had surgery that did not come out as expected, your attorney will have to find out if the bad outcome was due to negligence by having an outside surgeon evaluate your claim. Doctors cannot guarantee a perfect outcome, and in fact warn about possible risks with any procedure.
If your bad outcome was due to a known risk, and you were told about it, then you will not have a case. There are other exceptions as well. For example, a doctor treating a patient in an Emergency Department is given some leeway depending on the need for immediate action. If however, your doctor was not at least as skillful and knowledgeable as the average doctor, or your doctor behaved unreasonably under the circumstances, you may have a case.
Second, you have to be injured. Even if a doctor clearly makes a mistake, if that mistake does not cause definite harm, you have no case. Practically speaking, litigation of medical malpractice actions costs thousands of dollars, so if your damages are limited to a few days of lost work, it is not worth your while to pursue the matter in court. Many potential clients report that "I almost died" as their damages, but lack permanent injuries and months of lost work to justify expensive and lengthy litigation. In other words you can have a valid claim for medical malpractice, but lack the damages to make a case worthwhile.
Few people have the money in their pockets and the anger in their souls to pursue litigation costing in the tens of thousands of dollars on principle alone. Fewer attorneys are willing to take on such burdensome cases if there are no damages worth compensating. Most, if not all medical malpractice attorneys get paid on a contingent fee, that is a percentage of the compensation. A small claim means a small fee. Most cases take 2 to 3 years, and hundreds of hours of work. If the case is worth $10,000 and the attorney gets 25% as a fee, it becomes clear why small claims are not pursued.
Then, what happens to the "small" medical malpractice claim? Nothing. Here's why. Medical Negligence - Malpractice lawsuits name a doctor, hospital or medical group as defendant, but the real claim is against the medical provider's professional liability insurance company. Why should an insurance company pay out on a small claim when they can simply refuse, knowing full well that no lawyer will accept the case, and no lawsuit will result? Most lawyers try to set a value on a potential claim initially to try to determine if the matter is worthwhile - some go by "gut" feeling, others try to evaluate closely and set limits on the value of cases they will accept.
Claims brought before an insurance adjuster may take several months of development, including examination of the client by the insurance company's doctor, and submission of persuasive documents to convince the company to pay on the claim. If no offer is made, or an impasse in negotiations is
reached, a lawsuit is commenced. Litigation involves time-consuming and formal procedures, including documentary discovery and depositions. Once a lawsuit is commenced a law firm is hired by the defense to handle the case.
The defense firm looks to get the lawsuit dismissed through technical arguments, such as the Statute of Limitations and Jurisdiction, and then looks to assess the vulnerability of the insurance carrier on the substantive issues by obtaining very thorough documentation on every issue, and taking depositions of every party and witness. Defense attorneys are paid by the hour (or .1 hour) and have little incentive to find a speedy resolution. Typically there are motions and appeals, and the if the case goes to trial it is only after years of hard work and attempts at settlement.
An expert witness to testify on the question of medical negligence is required by New York State civil procedure. Most lawsuits will not be resolved until an expert has been engaged and the proper disclosure of credentials and opinions made to the defense.
Errors
in Diagnosis
This common type of medical malpractice lawsuit claims either a failure to diagnose a condition which exists, or a diagnosis of a condition which does not exist. Most frequently we encounter this type of case in the context of cancer. A delay in the diagnosis of cancer can result in damages related to the loss of chance for cure or the need for more aggressive, costly and painful treatment.
Of course the client must have reported signs and symptoms which were documented in the medical records, and which would lead a skillful practitioner to test for a particular disease. For example, certain symptoms might be "classic" symptoms for a specific cancer, or gallbladder disease or heart disease, and a failure to follow up on those complaints with appropriate testing might constitute malpractice.
Often a failure to diagnose a disease results in only a short delay before the genuine problem is known. Again, this calls for an evaluation of the harm caused by the missed diagnosis, or any treatment related to the misdiagnosis.
Testing
Errors
Occasionally a claim for malpractice originates from an error by either a laboratory or diagnostic facility. For example a pap smear may be read as negative when cancer cells are visible on the slide. Or the quality of a radiological film may be poor, resulting in missing an important finding.
Testing errors present another problem of proof. Frequently the original evidence has been destroyed. The tissue examined in Pathology following a surgery is not retained by the hospital for very long. Blood samples are also not kept for a great length of time.
These claims require an expert in the particular diagnostic area to evaluate whether the standard of care was met in the testing and/or interpretation. They also require an expert witness, just as the other claims. The question is whether the average hematologist, pathologist, radiologist or other diagnostic practitioner would have correctly identified the disease or injury from the available material.
Sometimes the error is on the report, not the testing itself. For example the testing results are issued under another patient's name, or a typographical error distorts the meaning. To take this one step further, the report may be inadvertently filed in the patient's chart before the doctor has had the chance to read it and make appropriate follow up.
These errors are called "administrative" and are the basis of claims of
negligence, not medical malpractice. You do not need a practitioner knowledgeable in a diagnostic field to tell you that the customary standard of care is to put the correct name on the report. Medical malpractice attorneys handle these types of cases too, and they are also defended by the same medical liability insurance carrier.
Errors
In Treatment
Technically this represents the greatest number of malpractice complaints. A recent case involved the treatment for a bug in the ear. The client presented in the local
emergency room with a live insect in her ear. It was the middle of the night, and she could not get it out.
The on-call physician placed a strong acid in her ear, ostensibly to kill the bug, but she suffered burns to her outer ear, eardrum, and middle ear leaving her with permanent partial dearness. Her claim was that the physician made the correct diagnosis (bug in the ear) but used the wrong treatment.
This shows a clear example of the class of claims referred to as treatment errors. Many dental malpractice claims fall into this category as well. Once a diagnosis is correctly made, a plan of treatment must be established. This plan must conform to the customary standards of care. A defense to a claim of treatment error is that the doctor used good judgment to choose between two or more acceptable treatments. Then an expert must be called in to give an opinion as to whether the treatment plan was one which a reasonable practitioner would follow.
Many cases develop from the use of obsolete treatment plans. Others are based upon the use of unapproved drugs or treatments, or experimental treatments. Of course, the more dangerous the illness, the more tolerance we have for treatment outside the norm. For example cancer patients and AIDS sufferers are often eager to try new therapies, and therefore the only claims they can reasonably make are those rare instances where some unscrupulous provider takes advantage of them for profit.
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