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First, not every bad result from medical care or a medical procedure constitutes malpractice. Doctors are not guarantors of the medical care they provide. Your client cannot collect from their insurance company simply because an injury occurred. It must be proven in a legally sufficient way. Many people seek legal redress for a bad medical result for which there is no legal blame. The patient may feel the doctor was disrespectful and wish to file suit to seek revenge. Or the patient may receive bills from the doctor or hospital after a bad result. It does not make economic sense to pursue a medical case unless the damages are severe and the liability is fairly clear. The law does not provide a remedy for hurt feelings.

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Second, even if your client was the victim of medical malpractice, there are numerous factors to explore. The doctor’s negligence is only one of many considerations. This is not the type of litigation that should be pursued by a general practitioner, or even by most personal injury lawyers, as many complex issues comprise a medical malpractice case.

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Does Your Client Have a Case?

To make a determination concerning whether a patient has a case, you should have more than a basic understanding of the anatomical, physiological, and other practical medical issues involved in the case. For this purpose, many attorneys in this field recommend that you receive training in anatomy, a “medicine for lawyers” course, and acquire and study medical texts that deal with the issues you are facing.

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Acquiring this knowledge has become easier because of the availability of texts, the Internet, and institutions such as the College of Physicians of Philadelphia (search the library at: http://pacscl.exlibrisgroup.com:48998/F/resource.htm), the American College of Physicians, or the National Institutes of Health (search the database at: http://www.nlm.nih.gov/medlineplus/) Information available from the NIH may help you screen cases and establish the standard of practice.

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Also consult specialized texts for lawyers, such as Anatomy for Litigators, Cross-Examining Doctors, and Medical Records for Attorneys. These books are available from the publisher of this book, American Law Institute-American Bar Association Continuing Professional Education, www.ali-aba.org (1-800-253-6397).

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Many factors will determine if a lawyer will accept a medical malpractice case. Despite what you may read in the newspapers, a medical malpractice case is not a guaranteed million dollar lottery ticket. They are among the hardest types of personal injury cases to win, and doctors win the majority of cases that go to trial.

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Because most cases take years of litigation, the cost of preparing and presenting the case through trial is a major factor for a lawyer to consider before accepting a case. Like other injury cases, medical malpractice cases are taken on a contingent fee basis. When the case is resolved, the lawyer is reimbursed for expenses, and the attorney’s fee is paid from a percentage of the verdict or settlement. See Chapter 3 for a discussion of contingent fee arrangements.

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These cases are very expensive to pursue because they require the lawyer to gather medical and other records and hire medical professionals to review them, write reports, and testify as expert witnesses. The lawyer must also pay the costs of pretrial preparation and trial. It simply does not make sense to pursue a case that has a potential value of $50,000 if the estimated cost of pursuing and presenting the case is also $50,000. Consequently, many smaller cases are not pursued, even if the negligence and causation are clear.

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If the case is particularly difficult, the attorney may ask the client to pay at least some of the costs of the suit. This makes the case economically viable for the lawyer and causes the client to feel more invested in and committed to the process.  If the case is strong, the attorney should be willing to front the costs. If not, expect the client to shop around for another lawyer.

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Do not expect the case to settle quickly; it will not. Most of these cases must be tried before a jury. In many states, without the express consent of the physician, the insurance company cannot settle the case. Because the doctor usually does not pay the judgment, the doctor often has little risk if the case goes to trial. The doctor may want to preserve his or her reputation for providing quality care rather than accept a settlement that implies malpractice. The doctor’s concern for reputation is especially relevant in states that permit the public to view malpractice case records.

In assessing whether a case can be won, the lawyer considers a number of other factors. The lawyer evaluates whether there actually was a breach in the standard of care that caused or increased the risk of harm to the patient. Equally important is the lawyer’s ability to present proof of negligent conduct at trial. If credible proof is not available, the case is likely not winnable.

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The patient’s medical records typically serve as primary proof of the facts of the case. Medical records are often seen as more credible than the patient’s testimony. Consequently, even if you allege a clear case of negligence, if the facts are not documented in the medical records, the lack of documentation may persuade the jury that there was no negligence.

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Occasionally, a question will arise as to whether key medical records were altered or crucial entries deleted. It is not uncommon for medical professionals to alter or delete records in attempting to prevent documentation of malpractice. Of course, this is unethical and illegal. If discovered, there is a greater chance of settlement since the insurance company will fear a large jury verdict.

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The possibility that records were altered or deleted is another reason for hiring an expert to review the records. It would be extremely difficult for a layperson to detect a missing or altered record. In some states, if it can be proven that medical records were missing or altered, an inference is created that the missing or altered records contained information that is unfavorable to the physician. For example, an expert may be able to reconstruct what happened in a particular case, which in turn may suggest that particular lab results are missing from the file or inconsistent with other contemporaneous tests or other records.

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The patient’s age may also be a factor in whether the case is economically viable. Although this may seem unfair, the law does not value the life of a 90-year-old the same as the life of a 20-year-old. When a jury considers an award for a permanent injury, a younger plaintiff has to endure that injury for more years than a senior citizen. All other things being equal, the award should be higher. The older a person is, the less likely the case has enough value to pursue.

In some states, damages for pain and suffering, loss of consortium, and other non-economic damages are capped. This means, regardless of the size of the jury verdict, the defendant will not have to pay more than a legally set limit. Some states cap the limits so low that it is not economically feasible for an attorney to accept a case under a contingency fee arrangement, even if the malpractice is obvious and the injuries severe. These caps do not apply to economic damages like medical bills and lost earning capacity.

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Caps on non-economic damages are problematic in cases in which those damages are the primary losses, such as with a 90-year-old plaintiff, a homemaker of any age, or an unemployed plaintiff. Consider a case in which an elderly plaintiff dies due to medical malpractice in a jurisdiction where non-economic damages are capped at $100,000. If the costs the attorney must pay to properly prepare the case for trial may also approach $100,000, the attorney would have no financial incentive to accept the case.

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Extraordinarily large awards are rare. They typically involve catastrophic injuries requiring a lifetime of medical care and expense. If the injury is only temporary or if the injury does not result in any impairment or disability that lasts a significant period of time, the value of the case may not be sufficient to make the claim worth pursuing.

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Referring a Medical Malpractice Case

Medical malpractice litigation is a highly specialized field. Not every attorney has the experience or resources to handle a malpractice case, regardless of their competence.

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It is essential to meticulously question any lawyer to whom you consider referring a medical malpractice case. Ask how many years have been dedicated to handling medical malpractice cases, the percentage of the practice that is devoted to medical malpractice cases, the number of malpractice cases actually tried, and whether the firm employs doctors or nurses to assist in preparing for this type of case. These are common-sense questions to ask any lawyer claiming to be a medical malpractice lawyer.

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Typically, there are certain firms that are recognized in the legal community as having a strong background and expertise in the area of medical malpractice. One way to locate a suitable attorney is to obtain recommendations from lawyers who do not handle medical malpractice cases. You can excellent recommendations from your listserv.  It is a good idea to interview two or three attorneys before referring a malpractice case.

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A great deal of information about an attorney can be gleaned from databases that collect pleadings, motions, reported and unreported cases, as well as newspaper databases, docket entries, and legal newspapers. You may be able to determine if the attorney’s account of the case is consistent with that described in reported cases. 

Nuts and Bolts of a “Med Mal” Case

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A comprehensive discussion of medical malpractice litigation is beyond the scope of this discussion. Each case is unique and presents a multitude of issues. A medical malpractice case boils down to three elements that must be proven by the plaintiff. Proving less than three is insufficient and will result in a verdict in favor of the doctor, healthcare provider, or hospital. It is always the plaintiff’s burden to prove all three propositions.

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Negligence

The first issue is negligence. Negligence in a medical malpractice case means that the defendant deviated from the standard of care that was required under the circumstances. The term standard of care is a term of art. It has no precise definition. Standard of care generally refers to the type of medical care that a reasonable and prudent doctor would provide under the same or similar circumstances.

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Standard of care is a guideline based on the facts surrounding the case and the prevailing medical practices in your client’s local medical community. As long as the art of medicine is practiced up to the standard of care, the doctor is verdict-proof, even if the medical outcome is poor. Medicine is an art and not an exact science. Perfection is neither required nor expected. The law does not require doctors to practice with mathematical precision.

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To prove the standard of care, the plaintiff’s attorney must engage the services of a knowledgeable physician experienced in the area of medicine at issue. For the case to have any chance of success, this physician must render the opinion that the care was substandard.

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It is important to recognize that even if you and your client think the doctor committed malpractice, this does not mean your case is a clear-cut win. An opinion from a physician is almost always required. And even if an expert testifies that the care was negligent, this only means you can present proof of negligence at trial. You must still convince the judge or jury that this took place.

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There are rare cases in which an expert witness is not necessary to prove negligence. If the carelessness of the physician is obvious, expert testimony from a physician is not necessary. A good example of this would be if a sponge or some other medical device is left in the patient’s body during surgery.

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Causation

Just as important as establishing a doctor’s negligence, a plaintiff must also prove that this negligence caused injury. In short, it must be proven to a reasonable degree of medical certainty that the doctor’s conduct was a substantial factor in bringing about the harm the patient suffered. Proving causation in a malpractice case is difficult. There are complications that can arise from almost every type of medical care. Complications often occur not because of negligence, but simply because there are inherent risks connected to most medical procedures or treatment.

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In most medical malpractice cases, direct causation cannot be proven. For example, if a physician negligently fails to diagnose early stage cancer, and it is later discovered at an advanced stage, surely one cannot say the physician’s negligence caused the cancer. Yet, the patient may have missed the opportunity to treat the disease. By failing to treat the disease early, the patient has lost a chance of a better cure rate.

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In most, if not all, states, the law allows the plaintiff to proceed in this type of case under a relaxed standard generally known as increased risk of harm. This means that, even though one cannot prove that the doctor’s conduct caused the harm, a plaintiff can satisfy the burden of proving causation by establishing that the doctor’s negligent conduct increased the risk that the harm would occur or worsen.

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Damages

The third proposition that must be proven is damages—that is, the actual harm caused by the malpractice. The objective of any case is to compensate the victim for the actual harm suffered. No matter how egregious the doctor’s conduct was, if the harm is minimal, it may not be economically feasible to pursue the case.

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The law categorizes types of harm that may be compensated. They include economic harm, such as medical bills and lost wages, and non-economic harm, such as physical or mental pain and suffering, loss of enjoying everyday pleasures, embarrassment, and humiliation. See Chapter 7 for a discussion of damages.

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The case will fail if any of the three elements (negligence, causation, or damages) cannot be proven to the degree legally required. A qualified malpractice attorney can usually determine within a short period of time if the case can be won. If it cannot, at least your client should come to feel that his or her concerns were taken seriously and that there simply is no feasible legal claim. This is a far more satisfactory situation than being left to wonder if a member of the medical community has wronged the client or a family member. If a malpractice lawyer thoroughly explains why the claim cannot be successfully pursued, the client should be able to reach a measure of closure.

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The Fee Agreement

Again, medical malpractice lawyers work under contingency fee agreements. Medical malpractice cases may warrant a higher contingency fee than a garden-variety motor vehicle or slip-and-fall lawsuit. This is because the amount of work and the lawyer’s own financial investment is usually significantly more.  Some states have laws that limit the lawyer’s contingency fee in “med mal” cases.

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Getting Started

No lawyer can properly evaluate or pursue a medical malpractice case without first obtaining all relevant medical records and interviewing available witnesses. If family members or friends accompanied the client to doctor visits or were present during any interactions with the doctor, they should be interviewed. The medical records are vital to your ability to prove a case. A lawyer who delays obtaining these records, more often than not, is not giving the case the attention it deserves.

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It is important that your client inform you of the most recent medical care. Ask your client to keep you updated on matters that are relevant to the case, such as medical care that continues after the lawsuit is filed.

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Lawyers typically rely on their staff, usually their secretary or paralegal, to keep files updated with current medical records. Typically, the secretary or paralegal is more accessible to receive telephone calls from the client. As the case progresses, maintain an open line of communication with the legal staff so that you are up to date on important case developments.

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Expert Witnesses

One feature of a medical malpractice claim that distinguishes it from a garden-variety negligence claim is the use of expert witnesses. In the average motor vehicle case, most people have a sufficient understanding of the duties of a motorist on the highway. People know that a driver must stop for a red light and that failure to do so is negligence. It is not necessary for an expert to testify.

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In medical malpractice cases, the issue of proper medical care is almost always complex. There is rarely a definitive statement in a medical textbook that will prove the case. Consequently, a lawyer must seek an expert witness to provide an opinion as to what is considered proper or improper medical care.

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An expert witness in a medical malpractice case can be a physician who reviews the medical records, perhaps examines the plaintiff, speaks to the plaintiff’s lawyer, and then renders an opinion on the medical issues in the case. When the issue is negligence, the expert will give an opinion regarding the standard of care owed by the physician to the patient and whether, under the circumstances, the physician’s conduct met the standard of care. If the issue is causation, the witness will render an opinion as to whether the doctor’s conduct was a material factor in causing the ensuing harm.

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In addition to expert opinions on the issues of negligence and causation, expert testimony is often needed for other issues arising in a medical malpractice case. Typically, opinions from an economist or a vocational expert are required when the plaintiff contends the injury disabled him or her from employment. See Chapter 7 for a discussion of loss of earnings and earning capacity.

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If a person has a permanent injury, the plaintiff may need an expert opinion regarding life expectancy so the jury can evaluate the length of time the plaintiff could have worked. If a person can continue to work despite a physical injury, but can no longer work at the same job or for as long as before the injury, a vocational expert (typically a psychologist with specialized training) is needed. This expert will give an opinion on the work the plaintiff could do prior to the injury and the limitations resulting from the injury.

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If a case involves a claim that the injury affects the plaintiff’s future ability to earn a living, the expert who renders an opinion on loss of earning capacity will likely have to meet with the plaintiff. For example, if the client was a heavy laborer, but the injuries require him to seek a new line of employment, a vocational expert will likely meet with him. The expert will review the client’s educational and employment background to render an informed opinion.

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Before suit is filed, you should review the medical records with an expert for a preliminary opinion of the merits of the case. It is vital to do this in the early stages of the litigation. In most cases, an attorney can make a negligence and causation assessment early in the investigation by engaging an expert to perform a preliminary review of the case.

Too often, an attorney will accept a medical malpractice case and place it in suit without knowing if a medical expert will support the view that the physician was negligent and the negligence caused the injury. After months, if not years, of litigation, the client learns the case was dismissed because the lawyer could not find anyone to support the claim. This is obviously a highly unsatisfactory situation, if not legal malpractice.

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Once the attorney has completed pretrial discovery (depositions, interrogatories, and requests for production of documents), there are only a limited number of reasons why the attorney cannot have the file reviewed by an expert witness. Without a compelling reason, an attorney who has not obtained the necessary expert opinions will not be in a position to pursue the case through trial or even engage in a meaningful settlement dialogue.

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No insurance company will settle a medical negligence case unless they are convinced that the plaintiff’s attorney can prove the claim at trial. If the attorney has not produced a written report from an expert that the doctor was negligent, there is little chance the insurance company will ever settle the case. More likely, the insurance company’s lawyer will seek to have the case dismissed on grounds that the plaintiff is unable to prove it.

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In some jurisdictions, the court will set deadlines by which the attorney must produce reports from all expert witnesses they intend to present at trial. If the attorney misses the deadline, the court may dismiss the case.  In other jurisdictions, the court will not permit a case to be scheduled for trial unless all parties have produced their expert reports. In these venues, the case could go on for years if the attorney is not aggressively pursuing the matter and has not obtained or produced expert opinions. If the insurer sees that you have back-burnered the case, it may negatively influence the insurer’s view of the case’s settlement value.

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Nuisance Value

Attorneys who file medical malpractice lawsuits without first thoroughly investigating them do everyone a disservice. Malpractice lawsuits should only be filed after the records are obtained and reviewed by an expert. Some attorneys hope to harass doctors into settlements simply by filing suits. This is called going for nuisance value. Although this might sometimes work with ordinary injury lawsuits, in medical malpractice cases it usually leads to huge, lengthy, and bitter legal battles with the doctor, insurance company, and defense lawyers.

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Valuing the Claim

In medical malpractice cases, as in most personal injury cases, valuing a case is no simple task. There is no book, journal, or scientific study that tells lawyers that a broken arm is worth X or a torn rotator cuff is worthY. The value of a case is based on many factors.

 

Some factors that should be considered in valuing a medical malpractice claim include:

• Nature of the injury

• Effect of the injury on customary and usual activities

• Permanence of the injury

• Treatment involved

• Cost of the treatment

• Effect on employment

• Effect on lifestyle

• Credibility of the witnesses

• Likely weight to be given to the testimony of the witnesses

• Weight of the medical science behind the claim

• Jurors’ potential sympathies for the parties

 

Many of the factors that go into valuing a claim cannot be properly evaluated at the beginning of a lawsuit. The lawyer cannot know how a jury may react to the doctor until the lawyer has had an opportunity to take the doctor’s deposition. Thus, it is unrealistic for any lawyer to advise the client of a specific dollar value of the claim before this stage.

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Any lawyer who tells a client the case is worth a specific amount at the first meeting is more likely making a sales pitch than offering an educated opinion. Better attorneys know that at the outset of a case, one can only provide a preliminary estimate of a range of values for the case. As the case progresses, it is more accurate to discuss value in terms of a range rather than any one number.

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Settling the Claim

As a general rule, medical malpractice cases are difficult to settle for reasons that have nothing to do with the merits of the case. First, many malpractice insurance agreements contain a provision that the insurance company cannot settle the case without the doctor’s written consent. In most cases the physician’s personal assets are not at risk, so there is little incentive for the doctor to agree to a settlement.

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Second, unlike a car accident or a slip-and-fall case, malpractice cases deal with a person’s professional reputation. No one likes to admit making a mistake while performing their professional responsibilities. Even doctors who have clearly committed malpractice may be unwilling to admit this to the other side or even to themselves.

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Often, doctors are often extremely offended when contacted by medical malpractice attorneys regarding a possible claim. If the case is settled, it shows up as a black mark on their record. Doctors tend to be exceptionally reluctant to settle these kinds of cases without a bitter battle.

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Political action groups on behalf of physicians and insurance companies have propagandized that medical malpractice litigation is out of control and consistently results in unreasonably large awards to the plaintiff. This message has served as a grassroots type of tort reform, which instills in potential jurors a bias in favor of doctors. Jurors may fear that a plaintiff’s verdict will somehow affect the medical community in general and, in turn, the jurors themselves.

For example, jurors may fear a large malpractice award will drive doctors out of their community, making it more difficult to obtain treatment by the doctor of their choice. Armed with this knowledge, there may be little desire for a defendant doctor or the insurance company to settle a case. They know that, regardless of the strength of the evidence, there is a good chance the jury will find in favor of the doctor.

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If a doctor is willing to settle, bear in mind that a settlement is a compromise. More often than not, a plaintiff who is considering a settlement offer must recognize the likelihood of having to accept an amount less than originally desired. Given the difficulty of winning a medical malpractice jury trial, you should strongly consider settling if the offer approaches the realistic value of the claim.

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How Your Client Can Help

The attorney performs the vast majority of the work necessary to prepare a medical malpractice case without the client’s involvement. There are, however, a number of ways the client can assist throughout the case. Ask your client to keep you updated regarding their medical condition and treatment. Ask them to save all insurance statements and medical bills and periodically mail them to you. This can be a big help in determining the amount of the medical expenses or the amount paid by the health insurer for treatment. It can also ensure that you are aware of all medical providers the client has seen.

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Another way the client can help relates to witnesses. Often, attorneys do not consider which witnesses to put on the stand until shortly before the trial begins. The attorney may not be aware of a neighbor or relative who can testify regarding the effect the injuries have had on the plaintiff’s life. Ask your client to provide you with names, phone numbers, and addresses of individuals who are familiar with the situation and who are willing to testify on the client’s behalf.

Also, the client should keep a medical care diary. Many people keep a daily calendar in which they note the date and time of doctors’ appointments. Ask your client to give this to you.

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Generally speaking, the doctors who treat your clients for the injuries caused by malpractice will not want to get involved in the case. In most areas, the medical community is tightly knit. It is quite understandable that a doctor may not want to testify against a colleague. However, there are occasions when a subsequent treating physician will wish to testify on your client’s behalf. If the treating physician indicates to the client a willingness to do so, that is a big advantage. Most lawyers will assume that a treating physician will not want to get involved. Consequently, the client can greatly assist the lawyer by passing along information suggesting that the treating physician may be willing to testify.

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The Medical Malpractice Crisis

The insurance industry, in conjunction with business groups and medical associations, attempts to blame the civil justice system for the medical malpractice crisis to further its own agenda. However, the evidence does not point to the civil justice system as a principal cause of the problem. The reality is that the legal, medical, and insurance fields play intertwining roles in this situation.

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The American Association for Justice reports that each year, approximately 98,000 Americans die because of medical malpractice. Only a small percentage of these cases result in lawsuits. In fact, the number of new medical malpractice claims filed annually is consistently declining. You can find a wealth of information about the so-called medical malpractice crisis at AAJ’s website, www.justice.org/cps/rde/xchg/justice/hs.xsl/default.htm.  AAJ reports that medical malpractice cases make up only 7.7% of all tort filings. Medical malpractice was the underlying claim in only 1% of punitive damage awards. Although multi-million dollar awards make the headlines, the median jury damage award from medical malpractice is roughly $254,000.

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In the winter of 2003, President George W. Bush proposed a $250,000 cap on medical malpractice non-economic damages, such as pain and suffering, declaring, No one has ever been healed by a frivolous lawsuit.People who work can recover lost wages, which is an economic damage. But children, stay-at-home mothers, the unemployed, and the retired are much more limited. If they cannot recover for pain and suffering, there may be little compensation available to them.

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The medical malpractice crisis is really an insurance crisis. The insurance industry admits that stock market losses and low interest rates have eaten up the reserves of many medical malpractice insurers. According to a press release dated January 7, 2003, from the North Central Pennsylvania Trial Lawyers Association, St. Paul Insurance Company lost $100 million on Enron bonds. St. Paul has left the medical malpractice market.

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Mary Alexander, former president of the Association of Trial Lawyers of America, says, “Tort reform is a misdiagnosis. We see this every ten to twelve years.” As in the mid-1970s and 80s, the insurance industry raises premiums to offset losses in the stock market.

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The medical profession bears its share of the blame. Its reluctance to self-police is a major contributing factor to the “crisis.” According to the federal government’s National Practitioner Data Bank, 10.6% of Pennsylvania’s doctors have paid two or more malpractice awards to patients. These repeat offenders are responsible for 84% of all payments. Yet, only 6.8% of doctors who made ten or more malpractice payments were disciplined.

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Medical Malpractice and the Death of a President

One of history’s most famous cases of medical malpractice involved President James Garfield. Garfield was shot twice by a frustrated office seeker, Charles Guiteau.  Garfield’s doctors malpracticed Vice President Chester Arthur into the White House.

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One bullet lodged in the President’s torso. Each doctor probed the wound with unwashed fingers and instruments. One is thought to have touched manure shortly before inserting a digit. Infection set in and the President slowly and painfully wasted away. In a desperate attempt to locate the bullet, Alexander Graham Bell was brought to Garfield’s bedside. Bell’s use of a newly invented metal detector caused the President to fear electrocution. Bell was unknowingly frustrated by the coil spring mattress on which the President rested. Had Bell moved Garfield to the floor, he would have found the bullet, and surgeons could have saved the President. The President died 2½ months after the shooting.

In 1881, American medicine was undergoing great changes. Therapies such as bleeding, purging, and blistering were falling away. Doctors were just beginning to understand the relationship between germs and disease. Blood transfusions, antibiotics, antisepsis, IV fluids, x-rays, and standard resuscitation measures such as monitoring of blood pressure either did not exist or had not yet been fully accepted.

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President James Garfield’s doctors were woefully uninformed in their outdated allopathic practices. Fast forward 100 years. Ronald Reagan was shot at close range. His wounds were more serious than Garfield’s and included a punctured lung. He was twenty years older than Garfield was when he was shot. How far modern medicine has come. Reagan was back to work within two weeks. Had James Garfield been shot in 1981, he would have rapidly recovered from his injuries. American medicine in 1881 simply was not as open to antisepsis as were doctors in Europe. The rest is history.