Most likely, there are no other trials related to damage, in which the knowledge, erudition, and experience of a lawyer are so important as medical negligence and malpractice.
Know what you are doing.
The basic principle of conducting claims related to medical negligence is the approach to doctors, which boils down to the requirement “know what you are doing.”
The insufficiently professional conduct of a claim for medical negligence can lead to an undesirable result, for example, its rejection or only partial compensation for the damage caused. Insufficient understanding of the description and documentation of a medical case, improper choice of a specialist for medical examination, lack of proper instruction from a doctor and a detailed examination of his “second opinion”, as well as the recommendation of a lawyer to file a lawsuit that has no chance of being satisfied – all this can cause irreparable damage to the plaintiff.
Medical malpractice lawyer is not trying to “catch” the doctors
When conducting cases of medical negligence, it is important to understand that the task of a lawyer is not to “catch” doctors on their mistakes in order to justify their fee.
There is no more complex and demanding profession for a person than a doctor. Doctors have to make complex and urgent decisions, while they cannot be sure of their correctness. Therefore, sometimes they make mistakes, like other people every day.
But, sometimes the mistakes of doctors are medical negligence. In this case, the patient has the right to compensation for physical and moral damage. For this, there are insurance companies. The claims brought by him are not a personal prosecution of doctors. In addition to the lawyer’s desire to obtain fair compensation for his client, his goal is also to improve the quality of medical care in order to avoid the recurrence of similar cases of medical negligence in the future. Therefore, I will never sue a doctor if it is possible to sue the medical institution in which he works if this does not infringe on the interests of the client. Practical experience shows that claims for medical negligence, in which there are no elements of personal prosecution or incitement, are more often satisfied by judges.
Should I contact a lawyer to conduct a case of medical malpractice?
Cases of medical negligence require considerable expenses of the plaintiff so that at the initial stage they can reach thousands of dollars. Subsequently, the court may oblige the plaintiff to pay for the second opinion of independent medical experts appointed by the court, as well as the examination of other specialists.
Therefore, the first question that the plaintiff must ask is whether or not to consult a lawyer at all. The latter, in turn, must evaluate, taking into account all the risks and costs, whether the client should file a lawsuit. In many cases, for a number of reasons, it is more correct to dissuade a client from filing a lawsuit, even if medical specialists find grounds for this. How one of the basic rules of medicine fits here: PRIMUM NON NOCERE! Do no harm!
Medical malpractice – preparation for litigation
The main element of a medical malpractice case is the patient’s medical record. It describes the history of the disease, the clinical picture, the train of thought of the doctors, the procedures passed and the information related to his treatment brought to the attention of the patient. Incorrect or inadequate documentation can result in a medical malpractice lawsuit against a medical facility.
Unfortunately, there are often discrepancies between real events and what is recorded on the medical record. The patient claims one thing, and the medical record says something completely different. From this, a simple, but not entirely pleasant conclusion arises: the client/patient needs to record as quickly as possible and in more detail everything that happens to him. Copies of hand-written medical reports, interpretations of research results, preliminary findings, as well as documentation and audio/video recordings of conversations with medical staff can significantly affect the outcome of a case.
Since the medical record is most often the main material evidence in cases of medical malpractice, it is very important to familiarize yourself with it in detail and highlight the most relevant documents. When it comes to medical negligence, every sheet of the medical record is very important. It is important to read each page and line.
Now, it does not really matter what is the origin of the injury that let you visit the relevant doctor, be it an injury inflicted by a coworker or a medical complication, you must keep all the relevant records. For example, recording the hour at which a certain procedure was performed can be important and indisputable evidence in the case. If you have not received an extract with the sequence of actions of nurses, send a second request to the medical institution.
Medical experts
The fate of the medical malpractice lawsuit depends on a second independent opinion submitted by both parties. This is the key to the matter. Therefore, the most important thing in a lawsuit about medical negligence is to choose the best medical specialist and present the best medical expert opinion to the court. Often after reading the report of the medical expert presented by the client, it becomes obvious that the claim will be satisfied.
How to choose a medical expert? Should it be the head of the department? A reputable specialist? An experienced doctor with a great medical practice or a young specialist who reads medical literature and is up to date with all the novelties and achievements of medicine? There are specialists with a solid character, whose “second opinion” sounds dogmatic and insufficiently developed, but there are also young doctors who can write unusually successful and relevant medical expert conclusions.
The first rule in choosing a specialist is to find a complete correspondence between the expert’s specialization and the field of medicine that the lawsuit affects. There are lawyers who file a lawsuit about medical malpractice during childbirth in the hospital, while they bring a “second opinion” of gynecologists who have no experience in hospitals. There are claims for certain medical procedures that were filed after consultation with a doctor with experience in the relevant field, but he himself never performed such procedures. Such discrepancies can be costly for the customer.
Therefore, it is very important to find out in detail with the doctor whether he has experience in specific areas related to the lawsuit. It is not enough just a coincidence in the areas of specialization.
The first call to a specialist is of critical importance. It is not enough just to familiarize him with the medical record and the list of completed procedures, it is also necessary to introduce him into the course of business and precedent. The initial conclusion of a medical expert should give an exhaustive answer to all questions of a lawyer, including questions related to the actions of doctors and their consequences for the client. Sometimes a medical examiner must confirm not only the fact of medical negligence but also direct damage to the client, which she entailed.
A lawyer should understand the topic at the same level as a specialist in this field of medicine. If the lawyer finds relevant medical literature and asks the medical examiner to study what was written there on a topic of interest, the medical examiner’s conclusion can be much more detailed and successful. Sometimes specialized medical literature is able to completely change the opinion of a medical expert.
In conclusion, it is necessary to say that in order to get a “second opinion” you need a specialist with extensive experience and a good reputation who has experience and knowledge in a specific field. In this case, the doctor should be accessible, flexible, accurate, not be indifferent to the case, able to distinguish between the main and secondary and able to write the conclusion of a medical expert. Moreover, he should be able to work with the investigation and have experience working with lawyers. It is important to understand that in most cases, the decision of the judges depends on the choice of the medical expert and the “second opinion” he wrote, and the choice of another, albeit no less professional medical expert, can lead to a completely different outcome.
Usually, cases of medical malpractice are heard in magistrates’ courts. There are lawyers who prefer to file lawsuits in a district court, hoping that district judges are more professional and experienced in such cases and that they will award higher compensation to the plaintiff. Sometimes they are right, and sometimes they expose their customers to undue risk of high legal costs. The court and its location must be selected individually in each individual case.
Appointment by the court of experts for examination
There are judges who are content with the opinions of medical experts submitted by both parties, and there are those who prefer independent experts appointed by the court. It is very important to verify the professionalism of court-appointed medical experts. It is important to find out what their worldview is and what they wrote in their medical articles in the past.
What did they testify to in other matters, what are their connections with other specialists in this field of medicine? Did they do collaborative research? It is important to understand that in most claims the decision of the judges depends on the opinion of the medical expert, and even if the same professional and suitable medical expert were chosen, the outcome of the case would be different.
Mediation, alternative dispute resolution
In cases of medical negligence, parties most often come to voluntary mediation. The settlement of a dispute with the help of an experienced mediator is a desirable and correct solution. In this case, the lawyer takes the initiative into his own hands, while he can take advantage of his professional knowledge, avoid publicity and get a “second opinion” from the medical expert that you can rely on.
But in such cases, it is important to choose the right mediator. As well as specialists in medicine, they differ in their worldview, approach, and sources used. Often, conducting business with the investigation and participation of specialists in the latter is inevitable.
Therefore, according to the logic of things, interrogating a specialist, it is necessary to speak with him on equal terms, that is, in his professional language. It is not enough to know thoroughly the details of the case, such as the procedures and their dates, the lawyer needs to be well versed in the field of medicine considered in the lawsuit, as well as be familiar with relevant medical literature, the results of recent studies, medical articles and previous evidence of the specialist involved in the investigation.
It is important that the investigation is conducted professionally, essentially and without attacks on the defendant. If the lawyer fulfills all the above requirements for medical examiners and investigators, and his arguments in court are confirmed by the relevant and professional “second opinion” of an independent medical examiner, then his main goal is achieved: to achieve maximum compensation for his client and prevent similar cases of medical negligence in the future.
Johnny Thompson is a senior reporter for Generator Research in Los Angeles, reporting on technology, business, finances, and more. He previously worked as a reporter for the Wall Street Journal and got his start at newspapers in New York, Connecticut, and Massachusetts.
So, what can be considered medical malpractice? As a rule, any non-standard treatment given by the attending physician, which does not fit into the established norms and standards, is considered medical negligence. This applies not only to the treatment itself, but also to examinations, prescription of drugs, as well as […]
