What To Do If You Suspect Medical Malpractice

WHAT TO DO IF YOU SUSPECT MEDICAL MALPRACTICE

By Jack Landskroner, Esq.

The incident rates of medical malpractice in this country are estimated to be 97% greater than the number of claims pursued by individuals suffering a negligent injury from medical care. Nationally, according to the Harvard Medical Practice Study (1990), each year, more than 180,000 people die, at least in part, because of medical mistakes. That means that the majority of these victims of medical negligence never pursue valid claims thus permitting bad doctors to continue providing substandard care to patient after patient without scrutiny or regulation. Moreover, these negligent care providers are able to shift the burden and cost of their mistakes to victims and their families who go uncompensated and are held responsible for the care and expenses incurred as a result of these often disabling and permanent injuries, caused by the Physician's or Hospital's negligence.
Medical negligence arises when a medical care provider fails to act as would an ordinary reasonable physician or care provider under the same or similar circumstance. In other words, either the doctor did something he or she should not have done or, failed to do something that should have been done, and as a result the patient was harmed.

Unfortunately, the overwhelming majority of medical negligence cases that go to trial across the county result in verdicts for the defendants. How could that happen? It is hard to imagine, especially when courts require that plaintiffs obtain proper expert medical testimony confirming medical negligence before their claim is permitted to go forward to a jury trial. Nonetheless, juries consistently return verdicts for Doctors and Hospitals 30-40% more often than they do for their patients. This is certainly explainable in that when pursuing a medical negligence case the cards are stacked against the patient from the start. The physicians control what goes into the records and the hospital controls the record keeping which is the only place a patient's care and medical experience is documented. Thus, in order to prove negligence, the patient must rely on the records kept by the negligent care provider. Hospitals and physicians are also protected by statutory privilege and confidentiality limiting the information they have to produce to a plaintiff. Finally, the doctors and hospitals are in bed together and thus they generally provide a unified defense against any claim made by a patient.

A traditional defense in a medical malpractice case plays upon the notion that Doctors choose to be in medicine because they desire to help people. While this is true in most instances it does not excuse a medical misadventure which results in harm to the patient. Cunning defense lawyers employed by the wealthy liability insurance companies then attempt to shift the focus of the case in order to put the plaintiff on trial rather than the defendant. Tragically, juries frequently give the Doctors the benefit of the doubt and are reluctant to find against a physician who makes a simple mistake in judgment which falls short of an intentional miscue. Moreover, there is no shortage of doctors serving as medical experts that refuse to testify on behalf of an injured plaintiff no matter how egregious the malpractice, but they are more than willing to stand by the negligent physician.
Nonetheless, under the law, a doctor that does not meet the standards of care must be held accountable for his or her actions that result in harm and victims of malpractice should not be dissuaded from pursuing their claims and having their day in court.
In order to best secure your rights as a patient in attempt to level the playing field and in an effort to protect yourself should you believe you or a family member has a claim for medical negligence, there are a number of pro-active steps you can take to preserve the facts and neutralize the defendants advantage.

1) If you believe that a medical mistake has been made in your care, ask the physician point blank what happened. Do not assume just because you are the patient and he or she is the doctor that you are limited in what you are entitled to know or ask. The doctors has an ethical duty to respond to you truthfully. If the doctor hedges in his or her response, follow up the question until you receive a satisfactory response. You have a right to an explanation of the treatment and care received as well as a right to be properly informed of the risks versus benefits of any procedure in advance of care. Any conversations with a treating doctor who commits malpractice can be used as an admission by the defendant doctor which can later prove useful for direct or cross exam in deposition and/or trial.

2) Immediately retain a complete copy of your entire medical chart. Confirm at the time you pick the records up that it is a complete copy of your records and demand certification or an affidavit from the records custodian that nothing has been omitted or removed from the chart. Most states have a statutory requirement enabling patients to receive a complete copy of their medical records within a reasonable time after request. In some states a statutory fee may be required in order to get the records however, the sooner you obtain your records the less likely there is to be any unauthorized alteration or redaction by the doctor or hospital, which would help them in defeating your subsequent claims.

3) Keep a journal of names and dates to assist in recall of the facts and circumstances surrounding the care and resulting injury. Hospital's will invoke every privilege and delay tactic in providing you relevant information including, the names of witnesses such as hospital roommates, nurses on call, orderlies, etc. If you have these names documented, you will level the playing field, and eliminate the hospitals ability to hide witnesses and relevant facts.

4) Obtain photographic or video documentation of any visible consequences of the care provided. The easiest way to impress upon a jury the severity of a medical mistake is to give them the opportunity to see for themselves what resulted from the negligence. Unfortunately, by the time a case is prepared and ready for trial, the visible effects of an injury have often improved or been subsequently repaired. Tragically, in cases that result in the death of a loved one, the best evidence is lost and the hospital buries its mistake. Thus, while it is uncomfortable and often the last thing on a family members mind, the failure to obtain such documentation will only serve to diminish the ability to share with the jury the pain and loss experienced by the victim, consequently giving the defendant the opportunity to suggest it was not significant to begin with.

5) Immediately find and retain a lawyer that is qualified to investigate and pursue your claim. Confirm that the lawyer has tried a medical negligence case to a jury verdict as the lead counsel in the case. Investigate whether the lawyer has obtained any board certifications or if he or she lectures or teaches on the subject. Interview your lawyer and make sure you are comfortable with his or her demeanor and ethics. Look for a lawyer that tells it like it is rather than someone that tells you what you want to hear. Over the course of your representation this lawyer will need to walk in your shoes coming to know you and your background as well as any close relative and acting not only as your representative but serving as a friend. The choice is an important one.

Pursuing a medical malpractice claim is never easy. Lawyers will advance thousands if not hundreds of thousands of dollars in pursuit of litigation on behalf of their clients in a medical negligence action. Doctors who are named as defendants allow their egos to interfere with just resolutions often forcing cases that should be settled into trial. Clients must prepare themselves, their families and loved ones for an emotionally draining battle which can last for years before a resolution can be obtained. They must garner their energy and support while learning to cope with their injury and finding a way to suppress their anger that is so frequently a part of these claims. Clients must know that statistically, it is an uphill battle to obtain a victory and the true satisfaction that is redeemed by such an award, but by pursuing their claims victims of malpractice speak out not only for themselves but for all the innocent patients whose care will be improved simply as a result of the defendant doctor thinking twice about what formerly had been a thoughtless decision, but now is a decision with consequences that could perhaps result in catastrophically altering a patients life.

Jack Landskroner is the Managing Member of The Landskroner Law Firm based in Cleveland, Ohio. He is board certified by the National Board of Trial Advocacy and represents injured victims of medical negligence, defective products, and general negligence. Landskroner is also the founder and director of the Landskroner Foundation for Children, a 501(C)(3) nonprofit child advocacy organization. Contact: Phone 216-241-7000, website www.landskronerlaw.com ,email jack@landskroner.com Copyright Jack Landskroner (2002) All right reserved.

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Medical Care: March 2000 issue. (Harvard School of Public Health study analyzing the prevalence of Medical Adverse Events and Negligence During Hospitalization.)

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