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You Received a Terrible Result. It Must be the Doctor’s Fault.
Your husband had by-pass surgery. Afterward, he developed an embolus (air bubble) that lodged in his brain and left him paralyzed and in worse condition than before the surgery. He is certainly entitled to get something for such a terrible result, right? Not nece
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ssarily. Some surgical and medical treatments carry high risks. Complications, including death, can occur without any malpractice. Remember, there has to have been malpractice, and you have to show that it was the probable cause of your injuries.
The Rule Is: Bad results alone will not win a malpractice lawsuit. In every successful malpractice case, there was some identifiable incident or action that was, more likely than not (a greater than 50% chance), the cause of the injury.
Rudeness and Neglect
No one answered the call button when you were in severe pain, or you found that your mother had been lying on a bedpan all night, or you were kept waiting for three hours in the ER, or they left your father outside the x-ray department all afternoon with no one to attend to him when he was only semiconscious. Outrageous neglect? Yes, but they do not qualify unless they caused some bad result, in addition to the annoyance and aggravation.
A man with a stab wound of the chest was kept waiting in the ER of a Georgia hospital for over two hours and passed out twice before a doctor arrived to take care of him. However, the wound was successfully repaired, and he suffered no bad effects from his ordeal, so his lawsuit was unsuccessful. He should have reported the hospital to the health department or the department of human resources.
The Rule Is: Neglect, rudeness, and bad manners may be infuriating and justification for strong words, but you must show they actually caused some damages to justify a medical malpractice lawsuit.
You Like the Doctor and Really Do Not Want to Sue Him.
Unless you feel strongly that you have been wronged, and have a healthy dislike for the person who did it, you will not win your case. A malpractice case can take several years. If you are not committed to it in the beginning, you will not have the stamina to see it through to a successful conclusion. You will only spend time and money and receive nothing in return. The insurance company lawyers are hoping to wear you down. One of their ploys is to make you feel sorry for the doctor, or run out of patience, so you will drop your lawsuit or settle for a nominal amount.
The Rule Is: A malpractice case is always a fight, ostensibly between you and the doctor, but it really is between you and the doctor’s malpractice insurance company to see who gets the money that was set aside for your protection. Unless you are serious enough to fight and see it through to a successful conclusion, you should not start a malpractice case.
You Want to Sue the Doctor but Not the Hospital or Vice Versa.
For some reason, you do not want to sue one of the parties responsible for your injury. Maybe you work for the hospital or the doctor lives just down the block, and you do not want to make enemies. Forget it. The surest way to lose your case is to leave out a party, who should be named as a defendant.
In a Florida case, a woman suffered a serious injury while under general anesthesia. Since she was asleep, she had no way of knowing whether it was caused by the surgeon, the anesthetist, or a hospital employee. She did not want to sue the local hospital for personal reasons and only sued the surgeon. When her expert witness testified at the trial, the defense lawyers asked him if he could say for certain that the doctor, and no one else, had caused the injury. Of course he could not. The injury could have been caused by anybody who handled her while she was unconscious. So, the judge threw her case out of court. If she had sued everyone involved, Jointly and Severally, admitting that she did not know who was responsible, because she had been asleep, and let the jury decide who was responsible, she probably would have won her case and received an award.
There is another risk in leaving out people, who may have caused your injury. Defense lawyers may find a doctor who was involved but was not named as a defendant in the lawsuit and cannot be sued because the statute has run (too much time has elapsed). The defense lawyers blame it all on that doctor. Maybe he even cooperated to help save his colleague and becomes a Voluntary Defendant, which means that he assumes all the blame for what happened to you. That gets everybody else off the hook, and since he can no longer be sued, it leaves you holding the bag.
The Rule Is: Sue everybody who might have caused your injury. You can always drop your complaint against anyone who turns out not to be at fault. But, you cannot sue anybody after the time limit expires.
Cancer and High-Risk Diseases
Cancer is a dread disease that inspires fear in most people and jurors. The cancer specialist can justify disfiguring surgery or giving the most poisonous drugs or deadly radiation, in order to save his patient from certain death. The same rule applies to heart surgery, in which one patient in ten can die, even with the very best care. In this type of case, the fact that you received a bad result does not mean a thing. You have the difficulty of showing there was no excuse at all for the bad result. The doctor can get eminent professors to testify truthfully that they have had lots of patients die in spite of their best efforts.
The one big exception is failure to diagnose and treat cancer or serious heart disease until it becomes incurable. Today, many cancers are curable if treated early. If you can show that negligent delay in diagnosis and treatment caused a cancer to go from a treatable stage to an incurable one, or that heart surgery was delayed until after the fatal heart attack, you have a solid case.
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Trivial Injuries or Damages
A malpractice lawsuit cannot be brought for the limits of most sm
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all claims courts. The legal paperwork alone costs more than that. But malpractice lawsuits can be brought and settled successfully for as little as $5,000, if handled by a competent lawyer. They are what is known as “nuisance suits” and are usually not worth taking to trial.
It can cost the doctor’s malpractice insurance company $5,000 just to set up the paperwork to defend even the most trifling case and another $10,000 to $20,000 in legal fees and costs if it goes to trial. In addition, malpractice insurance companies always worry about the possibility that a sympathetic jury might give an outrageous award, like the New York jury that gave a woman $200,000 for a cracked bone in her foot.
However, since the chances of winning enough to cover your expenses of going to trial are slim, they do not justify you spending much money or your lawyer doing much work either, and you may even have difficulty finding a lawyer who is willing to accept your case. The lawyers on both sides like to settle small cases for something less than the cost of a trial. They are usually good for a small settlement in the $10,000 to $15,000 range. But, if you become greedy and insist on going for a lot of money, you will probably lose everything.
You should always take your lawyer’s advice regarding the value of your case and not be misled by news stories of enormous awards in malpractice cases. The reason for this is that the occasional big verdict in a malpractice case always receives a lot of publicity. But, you rarely hear about all the plaintiffs who did not win. Being greedy can be a fatal mistake in a malpractice case.
The three important points to remember about trivial or nuisance value claims are:
1. There must be a clear case of malpractice, so you have a good chance of winning something if you go to trial, especially if your injuries were not serious or your financial losses were small.
2. Your injuries were not severe or only temporary. Perhaps the doctor set a fracture wrong, causing some pain and suffering for a few days or weeks before it was corrected, but the final result was good.
3. Your financial losses would not have been over $15,000, even if your medical bills had not been paid by insurance. A jury is not likely to give you much more than you spent.
You have been treated badly. The doctors and nurses have been rude and insensitive. Is that good medical care? No, but it will not win your malpractice case. You have to show actual malpractice caused an injury. You must show there was a departure from good and accepted practice, and it caused you substantial suffering or damages. Rude and insensitive treatment does not equal malpractice.
Maybe you think you will receive a huge verdict in excess of the doctor’s insurance and ruin him financially. Not so. The courts are not going to take away a doctor’s lifetime savings just because he made a mistake. That does not make him a criminal. Even if the jury gets carried away, the judge will probably reduce the amount of the award by what lawyers call Remittitur. Awards in excess of a doctor’s insurance policy are rare and only given in cases of outrageous and offensive conduct by the doctor. So, do not sue a doctor to get even or ruin him financially. It cannot be done. All you can expect is financial compensation for your suffering and financial loss.
Clean Up the Medical Profession
You do not care about the money, but you want to get the doctor out of the medical profession so other people will not have to suffer what you went through. Is that how you feel? You may even have read about how doctors and patients should help in getting bad doctors out of the profession. There is only one problem. It will not work. Even if you win your case, it is not going to affect the doctor’s license to practice and medical societies have little control over doctors.
The Board of Medical Examiners in each state controls medical licenses, and you can file a complaint with the board. But, it usually will not do you any good. Their job is to discipline doctors, not to help you. Cleaning up the medical profession is the job of licensing authorities and the medical establishment; it cannot be accomplished through malpractice suits.
Counter Sue the Doctor for His Bill
The fact that a doctor has overcharged you is no reason to initiate a malpractice lawsuit. The cost of litigation can be many times the doctor’s bill, and even if you win, you are likely to end up with just the amount of the bill being forgiven and not have enough left over to pay your lawyer. Disputes over doctors’ fees are best handled in small claims court or by your lawyer, just like any commercial dispute.
However, if a doctor sues you for his bill and you do not want to pay it, because his services were not satisfactory, you can counter sue in what is called an Affirmative Defense. In some states, you can only counter sue for the amount claimed against you; other states do not limit the amount you can ask for. Either way, it can be an effective means of getting the doctor to reduce or withdraw his bill. Insurance companies do not like doctors who get themselves sued by squeezing patients for money.
style=”text-align: justify;”>A Healthy Person Is Injured
There is not any defense when a healthy person goes to a doctor’s office or hospital and comes out injured. In a North Carolina case, a woman had a spinal tap, which consists of putting a small needle into the spinal canal to take some fluid for testing. She developed meningitis from a contaminated needle, was permanently disabled, and won a large verdict.
This can also apply to Plastic Surgery. When people have a trivial defect repaired just to improve their appearance and the result is worse than before, they usually do not have to prove malpractice. The doctor should not have attempted the surgery unless he was reasonably sure he could produce a good result. In these cases, the doctor usually has the burden of showing that he did not do anything wrong.
The Doctor Has Some Trait Or Characteristic That Sets Him Apart
The doctor you do not want to sue is the all American, pillar of the community who is widely liked and respected. Discrimination is still a fact of life and plays an important role in medical malpractice. Studies by lawyers and law professors have shown that ethnic and religious considerations are strong influences on the way a juror will vote. It is what is known as xenophobia, dislike and mistrust of people who are different. The more a doctor is unlike the rest of us, the more willing a jury is to believe that he is capable of doing something wrong. The rich doctor who drives an expensive car and acts like a snob and the foreign doctor with a thick accent, are both likely to arouse the suspicion and animosity of the jury. The doctor with a foreign accent and foreign credentials is twice as suspect.
Jurors do not like doctors who alter medical records in an attempt to deceive them or who are arrogant, dirty, or sloppy. A Florida plastic surgeon was hit with a heavy judgment when he told the jury he made a million dollars a year and was so busy he could not be bothered coming to court to testify in his own behalf.
The truth is that many great medical discoveries, such as heart transplants and penicillin, were made by foreign doctors, and some of the most outstanding American doctors have been graduates of foreign medical schools. But, the hard fact is that the doctor who has a foreign degree and looks and sounds foreign, or the doctor who acts like he thinks he is better than the rest of us, will not get much sympathy from the average American juror.
The Doctor Used You As A Guinea Pig
Juries do not like doctors who experiment on their patients. Whenever a doctor undertakes any treatment that is experimental, or has an unusually high risk, there are four things he must do:
1.) He must do a careful and thorough diagnostic work-up to be sure his patient needs it and can withstand it.
2.) If there are other, safer ways the condition can be treated, he must discuss them with the patient and choose the least dangerous one that will do the job.
3.) He must discuss everything fully with the patient and/or the family and let them participate in the decisions.
4.) He must warn the patient, or the family if the patient is unable to participate in the decision, of all the risks, whether or not they are serious, and he must get a special consent to treatment outlining all these points in detail. The usual hospital consent form will not do.
A Long Island woman was trapped in her car after a collision and suffered serious burns of both legs. While she was in the hospital, she developed an infection of the burned areas, and the plastic surgeon decided to give her a dangerous antibiotic, which can cause permanent deafness and kidney damage. He did not run any tests to learn whether the risk of giving the drug was necessary; he did not discuss the risks with her or her family or have her hearing checked while she was taking the drug. After 30 days it was discovered, she was totally and permanently deaf, and she could have been treated just as well with a drug that was completely safe. She sued and won a large settlement, because the doctor had used her as a guinea pig.
Conduct which is far below standard, even to the layperson, will win large verdicts. Outrageous conduct can win large verdicts if it is intentional, goes beyond mere rudeness and callous bad manners, and shows a flagrant disregard for the welfare or feelings of the patient or the family.
In a Minnesota case, a mother and daughter who had been injured in an automobile accident were taken to a doctor’s office. The doctor did a superficial examination and failed to diagnose the daughter’s head injury. In offensive language, he told the mother that the daughter was faking, and he put both of them out of his office to wait for transportation in the snow and subzero weather. The daughter subsequently died of her head injury, and the mother won a large settlement with punitive damages to punish the doctor.
The Rule Is: Outrageous conduct has to be intentional, flagrant disregard for the welfare of the patient or feelings of the family, or an openly contemptuous attitude. It has to be bad enough to shock the sensibilities of the average juror. Mere bad manners and rudeness are not enough.