Medical Malpractice

If circumstances have required you to get involved in litigation, you may find the process of selecting an attorney to be overwhelming.  There are, however, some steps you can take to make the selection process a bit easier.

First, you should consider hiring someone who specializes in your type of case. If you had an automobile accident, consider hiring an attorney who exclusively practices personal injury law and preferably one with a track record of success in car accident cases. If you were wrongfully fired, hire a litigator with experience in employment rights.

Since you and the attorney you choose will be working very closely together, it’s important to choose someone with whom you feel comfortable.   How long has the attorney been practicing law? Has the attorney ever handled a case like yours before? What was the outcome? How much are fees and how are they paid? Does the attorney seem like he or she is concerned about your case? Does the attorney seem knowledgeable about the area of law?   Does the attorney articulate himself clearly and effectively?  Does he have a credible and trustworthy demeanor?  Remember, a judge or jury may be making the same assessments down the line.   

With respect to fees, most attorneys will take a personal injury case on a contingency basis, meaning that you only pay if they succeed, typically about one-third of the judgment or settlement amount.  You may be able to negotiate the percentage, especially if your damages are significant and your case against the potential defendant strong.  In addition to contingency fee structure, you should also be aware that many attorneys will bill for “out of pocket expenses” such as $0.25 per page for photocopies, $1.00 per page for faxes and cost of hiring experts and consultants.  Again, depending on the strength of your case, you may be able to negotiate these terms.  If you’re involved in a commercial or contract dispute, most such cases are billed on an hourly basis.  If you’re a plaintiff, a hybrid fee structure whereby you would pay a lower hourly fee but provide the lawyer with a percentage of the settlement may be an interesting option.

It’s also a good idea to find out how long the attorney believes the case will take. Obviously, many factors are beyond your attorney’s control, but you should be able to determine a general timeline and what type of resources the attorney will commit to your case.   It’s also important to know how you will be kept updated throughout the proceeding. It can be very frustrating if your attorney does not keep you informed on the status of your case. Ask the attorney how he or she plans to communicate with you and how often you can expect a status report.

Choosing an attorney is a big decision. Before you decide to choose one based on the number of television commercials he or she runs, or the size of the yellow pages ad the firm maintains, it’s important to sit down with the attorney to make sure the relationship is the right fit for your case.

In civil cases, plaintiffs have the burden of proving defendants are to blame for their injuries or economic losses by a preponderance of the evidence, which essentially means, that based on the evidence, the defendants were more likely than not responsible for the injuries.  That can be a lot more complicated than it sounds  Expert witnesses can be a critical key to success in winning over the jury and winning these complex matters.

Each day, thousands of advertisements for personal injury lawyers can be found in local newspapers, on television stations and even on social networks like Facebook and LinkedIn. Most of these ads explain that the firm doesn’t collect any fees unless they win. Of course, there’s usually a catch with this statement and it centers around what the advertising firm means by “fees” and what other costs you might be expected to pay regardless of whether or not you win your case.

Attorney fees usually involve the time and labor of the attorneys and their staff. These fees do not include the out-of-pocket case costs that are inevitable in any court proceeding. So while you may not be required to pay any attorney fees upfront or at all (unless you win), you may be required to pay all related case costs. Case costs are usually expenses charged by third parties for work on your case. These may include court filing fees, expert witness fees, cost of obtaining medical records, court reporter fees, etc. Depending on the scope of your case and the duration of these proceedings, these fees can easily be thousands of dollars.

While some firms will require you to pay case costs as they are incurred, others won’t require upfront payment (especially, if you have a very strong case) and will instead deduct these expenses from the final settlement. Combined with legal fees, these costs may add up to 50% or even more of the settlement. In selecting an attorney for your personal injury matter, it’s important that you take time to understand what expenses, in addition to attorney fees, you will incur.

Information About Reporting Rates for Medical Errors
Because no centralized complaint agency exists for reporting medical malpractice, accurate statistics about the medical error rates in the United States are difficult to come by.  A 2010 review of medical records by the inspector general of the Department of Health and Human Services (HHS) revealed that about 134,000 Medicare patients were harmed in the hospital in a single month. Another HHS report revealed that hospitals report only about 1 percent of adverse medical events they are required by state law to register.  The report went on to state that the low percentage is most likely due to hospitals’ failure to identify medical errors that occur in their facilities, as opposed to failure to report known medical errors.

In short, available data suggest that hospital error reporting does not accurately reflect the number of hospital errors that actually occur.  The data also suggest that one reason for low reporting may be that hospitals do not have accurate systems in place to identify adverse medical events resulting from medical negligence or medical malpractice.

Why Are Hospital Errors and Medical Malpractice Incidents Rarely Reported?
Hospitals may need to improve their reporting procedures if hospital error data are to more accurately reflect reality.  There are other reasons for low reporting rates, as well.  Patients who suffer from hospital errors may be too traumatized to make the report, they may be focusing on other aspects of their lives after a disabling medical error, or they may find the current reporting bureaucracy too complex to navigate.  Without a centralized reporting system, patients and their families must choose from several different complaint options:

• The state medical professional licensing board
• The state public health department
• The Joint Commission, which accredits hospitals
• A Medicare Quality Improvement Organization

These different agencies do not have procedures in place to communicate complaints among one another, and no agency collects accumulated data from all agencies into a centralized location.

Summary of the Agency for Healthcare Research and Quality’s Proposed Program
The AHRQ’s proposal is to design a prototype system to collect information about patient harm events, to test telephone and internet patient questionnaires, and to test follow-up surveys of health care providers after a report of hospital error.

You can Visit the Federal Register Website for information about commenting on the AHRQ’s medical error complaint prototype system.
 

Matters that are subject of litigation are ultimately decided on facts and the applicable law. The process by which parties uncover those facts is called discovery.  There are many tools in the discovery toolbox.  A deposition (questioning of a party or witness under oath, often referred to as a “dep” or “depo”) is one of the most powerful tools.

If you watch the evening news or read the local paper, you’ve probably come across the term “Wrongful death.”  Legally speaking, wrongful death is a term used for a type of action that can be filed by the heirs and beneficiaries of a person who was killed because of the wrongful conduct of another person. Wrongful death laws are intended to provide compensation to help support the dependents of the deceased.

Conduct that can result in a wrongful death claim include negligence, such as reckless driving, or intentional crimes such as assault or murder. In most states, the standard of proof for wrongful death cases is a preponderance of the evidence meaning that the injured party has to prove to the jury that there is a greater than 50% chance that the defendant’s negligent or criminal actions were the cause of death. This differs from criminal cases where the prosecutor must show proof beyond a reasonable doubt, a much higher standard. Therefore, it’s often easier for survivors to prove a wrongful death case than it is for prosecutors to prove a criminal case. One well-known example is the O.J. Simpson case where the survivors of Ron Goldman and Nicole Simpson chose to sue for wrongful death and won after O.J Simpson was acquitted in the criminal case.  

 Civil lawsuits arise because of a dispute between parties.  They’re unable or unwilling to resolve the dispute, so they get lawyers involved and cases are filed.  The litigation process is a way to resolve those issues with the help of a judge or jury.  But that’s not the only way to resolve a dispute.  

Defensive Medicine: Many Doctors “Over-Treat” Patients Due to Fear of Medical Malpractice Claims

The skyrocketing cost of medical malpractice insurance premiums has changed the way many physicians practice medicine, prompting some to refuse certain patients with complex medical problems or to order unnecessary tests on other patients. Such “defensive medicine” can involve unwarranted lab tests or x-rays or even more invasive procedures to help ensure “certainty” regarding a diagnosis. Even more troubling for the most vulnerable patients, defensive medicine can result in a surgeon’s refusal to perform a complex operation on a sick patient for fear of a negative outcome and eventual malpractice lawsuit.

A recent study published in the Archives of Internal Medicine revealed that many patients receive “too much” medical care and treatment. The study found that 42 percent of American primary care physicians believe that patients receive more aggressive medical care than is necessary. The study also revealed that many doctors feel they must provide “excessive care” to patients, due in large part, to concerns about being the subject of medical malpractice claims.

The study involved 627 physicians, most of whom had practiced medicine for nearly 25 years. Of the doctors surveyed, just 6 percent expressed concern that patients were receiving too little care. Most doctors reason that they could risk medical malpractice lawsuits if they fail to take every conceivable measure to cure or prevent an illness. They admitted over-treating and over-testing, in order to attain clinical performance standards, despite the small amount of time they have to actually consult with each patient.

The vast majority of physicians surveyed – 83 percent – believe they could be sued if they opted not to order every test that is indicated for a particular situation. On the other hand, just over 1 in 5 doctors believe they could be sued for ordering an unnecessary test.

Nearly half of the survey respondents reported that nurse practitioners and physician assistants provided more aggressive treatment than primary care doctors, and 61 percent indicated that subspecialists also provide more aggressive treatment. Experts believe that defensive medicine could be mitigated if doctors more effectively communicated with their patients about their illness and the pros and cons of various tests.

Despite efforts to mitigate their occurrence, medical errors by doctors, nurses and other healthcare providers result in a significant number of injuries and deaths every year.  It’s important to note that not every treatment which results in the degradation of the patient's condition(s) or in failure to restore health constitutes medical error or malpractice.  Instead, malpractice occurs when there is professional negligence by healthcare providers or facilities.

Professional negligence by act or omission by a health care provider occurs when the treatment provided falls below the accepted standard of practice in the medical community and causes injury or death to the patient. In order to determine whether there was malpractice, the key issue is whether physicians and caretakers followed accepted standards of care.

If you have been injured by the negligent actions of another, you may be entitled to compensation for your medical expenses, physical and emotional pain and suffering, permanent physical impairment or disfigurement, lost income, decreased earning capacity, property damage, or other economic losses. Deciding whether to settle a personal injury lawsuit without taking the case to trial is a major decision demanding the full consideration of many factors.

Some plaintiffs wish to settle the matter quickly, while others want to let a judge or jury determine whether damages should be awarded and how much. There are advantages and disadvantages to each option; only you can decide what is best for your specific situation but an attorney can help you put the pros and cons of each option into perspective.

The vast majority of personal injury lawsuits never see a courtroom, evidence that the benefits of early settlement are compelling to a great number of injury victims. Settling a case is often more advantageous to the injured party, rather than taking the case to trial.If you have received a settlement offer from the defendant or the defendant’s insurance company, you should review the offer with your attorney as soon as possible.

Settlement agreements have many advantages. Settling your case is much quicker than taking your case to trial, which can take up to a year – or more, depending on the jurisdiction and the complexity of the case. You can receive the money, or at least a portion of it, immediately so you can pay off your medical bills and repair property damage. Your attorneys’ fees and other legal costs are greatly reduced by avoiding protracted discovery and the trial itself. Additionally, the emotional benefits are undeniable. You have the peace of mind of knowing exactly how much money you will receive, and you can get emotional closure right away so you can move on. Finally, settlement agreements can remain confidential, whereas court proceedings are public records.

On the other hand, there are tradeoffs. In exchange for the benefits stated above, you will typically have to accept a smaller monetary award than you might get if the case goes before a judge or jury.

Taking your case to trial, letting the court decide the outcome, also has its advantages and disadvantages. If you go to trial and win, you may feel a sense of emotional satisfaction having prevailed in the lawsuit. And, as noted above, you may be awarded a much higher amount than what was offered in the settlement negotiations.

However, there is never any guarantee that you will win your case at trial, or that the amount awarded will be more than what you could have settled the case for. The value of any settlement offer or potential court verdict must be weighed against the increased costs of dragging the case out for many more months before a trial can take place. In considering your options, an experienced personal injury lawyer can provide you with a realistic assessment of whether a settlement offer is fair, and the likelihood of winning a greater award at trial.

The vast majority of significant personal injury settlement offers come with a catch – the defendant wants a confidentiality clause included in the settlement agreement, barring the plaintiff and his or her attorneys from publicly discussing the facts of the case or terms of the settlement.In exchange for keeping their “mouths shut”, plaintiffs often benefit by obtaining higher compensation.  In many circumstances, the plaintiffs also have a preference for maintaining their own privacy.

Why do the defendants’ attorneys routinely insist on confidentiality clauses in their settlement agreements? Typically, defendants – and their attorneys – want to prevent evidence, such as witnesses or documents, from being accessible to future plaintiffs. In the grand scheme of things, this makes the defendant less accountable for its conduct.

Arguably, our legal system and the overall population would benefit from an outright rejection of confidential settlement agreements. Yet, most plaintiffs’ lawyers quickly capitulate; a settlement in hand is a sure thing, prevents future expenses necessary to bring a case to trial, and avoids the uncertainty regarding how much a jury might award in damages. Plaintiffs typically agree to maintain secrecy, as well. Seriously injured victims and their family members may be struggling financially and emotionally, and have a strong desire to put the matter behind them. It is understandable that they focus on their own needs and recovery, rather than how it may impact future plaintiffs’ or the public’s access to information and evidence.

Some attorneys and ethicists believe that lawyers’ rules of professional conduct provide them with sufficient grounds to reject secrecy clauses. Most states’ ethical rules favor enabling the public to have a realistic understanding of which attorneys have expertise in cases involving certain circumstances or against particular defendants.

However, those same rules of professional conduct also require attorneys to act in the best interests of the client – which often means agreeing to a speedy or generous settlement offer. Some legal ethicists suggest addressing confidentiality upfront, at the beginning of settlement negotiations. However, this approach may reduce the amount of a future settlement offer, or cause the defendant to take settlement off the table entirely. This risk, too, must be discussed with and agreed to by the client.

Furthermore, in this type of situation, the risk is borne by the plaintiff but the benefits are only realized by the general public, as mentioned above, or the lawyer who later enjoys “bragging rights” when he would otherwise be muzzled. It can be a tough sell, and one fraught with its own ethical implications. In the end, only the client can decide what is best for his or her situation. Some will agree to the risk “for the greater good” while others must do what is best for them and their families.