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If you followed our earlier blog posts, you should know what constitutes medical malpractice and whether you were a victim. If you think you have a legitimate complaint, the next blog posts will tell you how to assert your legal rights and obtain compensation for medical malpractice.

Compensatory Damages

If you have been injured by someone’s negligence, the law gives you the right to compensation. Bringing a medical malpractice lawsuit against a doctor or a hospital is not being vindictive but simply seeking what is legally and rightfully yours for the injury you have suffered. In fact, the law calls awards for malpractice Compensatory Damages, which means just what it says. They are meant to compensate you for the losses you suffered through a doctor’s or hospital’s negligence.

Loss Allocation

Before 1949 many workers, who were injured on the job, received nothing to compensate them for their injuries. If a worker suffered an injury that made it impossible to work, his or her family was reduced to poverty. After 1949 all states had workers’ compensation laws. Employers in each state paid into a fund that took care of injured workers. It paid their medical expenses, rehabilitated them, and paid a pension if they were permanently disabled. The employer pays contributions, as a cost of doing business, whether his employees are injured or not. It is a way to help people, who have been injured through no fault of their own. It is what lawmakers and lawyers call Loss Allocation.

Today, medical malpractice insurance is considered a Loss Allocation like workers’ compensation. It is no more an insult to ask a doctor for compensation for medical malpractice than to ask your employer’s workers’ compensation to compensate you for injuries you receive on the job. A doctors’ textbook on medical malpractice defense advises them to carry adequate malpractice insurance because: “Accidents do happen, and patients do get injured. So it is only humane that funds be available to compensate the victim of your mistake.”

Thousands of patients suffer, due to malpractice, and do not get the compensation they deserve. If you are malpractice victim, or your client is a malpractice victim, contact JD.MD, Inc., today at 800-225-5363. We can provide you with a Comprehensive Screening Report, an initial case evaluation, by a qualified medical reviewer.

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To show that a doctor committed fraud or deceit, whether in giving you advice, altering clinical records, or helping you with a case, you have to show the following:

1. The doctor knew, or should reasonably have known, the information was false or the records were altered.

2. The doctor intended that you rely on it, and you believed it was true.

3. You based your decision or action on the belief that it was true.

4. You suffered an injury or financial loss because of your reliance on the doctor’s misrepresentation. For example, you consented to surgery or delayed filing a malpractice suit until after the time limit ran out.

Destruction of evidence is a crime and so is tampering with a witness. And, you are now asking yourself why a doctor who alters clinical records, or threatens your expert witness with political reprisals if he testifies for you, cannot be fined or sent to jail. The answer is that he can. And, anybody else who tried it would probably be punished with a fine or jail sentence. But, doctors seem to get preferential treatment from the courts. Although altering clinical records and intimidation of medical expert witnesses or dental expert witnesses happens every day, it would be hard to find any instance of a doctor ever having been punished for doing them.

In a West Virginia case, the doctor called the patient’s expert witness and made threats against his life, if he testified against him. When the patient’s lawyer complained to the court, the judge had a chat with the doctor who explained that what he really meant was the expert would “get killed” by being embarrassed and humiliated on the witness stand. The judge agreed with him. End of complaint.

What about the doctor who offers to help you, then

deliberately destroys your case? You can also recover from him, and this will be dealt with later.

To show fraud in obtaining your consent, or in concealing the effects of medical malpractice or dental malpractice, you must have some proof, either statements made in the presence of a reliable witness or a promise in writing. If it is just your word against the doctor’s word, it tends to turn into a “shouting match”, which the doctor usually wins.

Fraudulent alteration of clinical records can be established by a medical expert or dental expert or by an authenticator of disputed documents (handwriting expert). In the New Jersey case mentioned earlier involving the neurosurgeons, the medical expert witness for the patient spotted the typist’s notations that the documents had been dictated a year later and must have replaced the originals, which had been destroyed. In a Long Island case, the plaintiff was able to prove the doctor had altered the medical records to cover his malpractice and deceive the court. The jury awarded punitive damages, in addition to compensatory damages.

Punitive damages are not covered by the doctor’s malpractice insurance. Therefore, if you discover your expert has conspired against you, or the records have been altered or destroyed with intent to deceive, it gives your lawyer leverage.

The Rule Is: In order to plead fraud or deceit, you must show there was a conspiracy between the doctors or the clinical records were deliberately altered with the intention of defeating your case. Just because the doctors know each other, or are friends and have discussed your case, or because records are lost or edited in preparation for trial, will not do it. You must show deliberate intent to deceive you.

Fraud and deceit usually occur in one of the following forms:

1. Assuring the patient that a diagnosis known to be wrong is correct.

2. Deliberately making a false prognosis as to the risks or outcome of treatment, especially if it is t

o persuade you to submit to surgery, treatment, or expense you would not have had otherwise.

3. Falsely representing what happened while the patient was unconscious or under anesthesia.

4. Falsely representing what was done during surgery and what organs or tissues were removed.

5. Pretending to have skills or training which he does not have.

6. Concealing vital information or a material fact, such as having left a sponge, instrument, etc. inside a patient.

7. Conspiring with another doctor, or any other person, to mislead or deceive you.

Effects of Fraud and Deceit by Physicians and Dentists

Earlier it was stated that a medical malpractice case or a dental malpractice case is not a criminal case, and the court is not going to punish the doctor beyond making him pay for your losses and pain and suffering.  All you can hope to be awarded is what is known as compensatory damages.  That means compensation for the following damages:

1. Your medical and other expenses.

2. Loss of income or the support you would have received from the person who was disabled or died.

3. Pain and suffering, including emotional suffering.

However, if a doctor is guilty of fraud and deceit to induce you to undergo treatment or conceal malpractice, or if he alters or destroys medical or dental records and you discover it, it can strengthen your case in the following ways:

First, jurors do not like doctors, who do these things and will likely award damages.

Second, the judge or jury can award punitive damages, which are in addition to your compensatory damages and are designed to punish the doctor.  They are like a fine, not just to compensate the injured person, but to teach the wrongdoer a lesson.  They are actually a fine, but not like a criminal fine, because the money does not go to the court.  The money from punitive damages goes to the victim.

Third, if a doctor uses fraud or deceit to obtain your consent to treatment or a surgical procedure, the consent is null and void.

Fourth, if the doctor conceals his malpractice after the treatment, it tolls the statute (stops the

clock) on the time limit for you to file your case until you find out about the doctor’s fraud.  But, it has to be active concealment, such as lying to you.  If the doctor failed to tell you there was malpractice that does not count.  The United States Constitution says he does not have to incriminate himself or testify against himself.

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l” style=”text-align: justify;”>Fraud and deceit by physicians and dentists are serious words. They mean the doctor either defrauded you or deliberately deceived you. There are usually four ways in which a doctor can be guilty of these unethical actions.

First, the doctor intentionally misleads you as to the nature

of your condition and what the treatment involves.

A North Carolina surgeon told a patient that a heart operation held no risk. The patient was not yet 40 years old, the operation was not really necessary, and he could have lived for many years without it. But, since the doctor had assured him there was not any risk, he decided to go ahead with it, just to be on the safe side. After the operation, the patient developed an air bubble to the brain and died.

Postoperatively, the patient’s family found out the operation was considered dangerous by heart surgeon, and as many as 10% of the people who have it die. Even though the doctor had performed the operation correctly and had not committed malpractice, he had willfully concealed the dangers of the operation to get the patient to agree to the surgery. The family sued, charging that the doctor had deliberately deceived the patient about the risks, and he did it for the money. The jury thought so, too.

Second, the doctor intentionally misleads you as to what went wrong with a treatment and gives you a false story to keep you from suing him, until the statute of limitations (time limit) runs out.

Third, the doctor alters or destroys his office records, or the hospital records, in order to conceal the truth from your lawyer and the jury. This is known as spoliation of evidence and is the most serious of all.

In a New York case, a woman was sent home from the hospital with pneumonia and she died. When the family’s lawyer obtained the hospital chart, all the reports of laboratory tests were normal. Since that did not square with the patient’s condition, the lawyer obtained a court order to see the original records in the hospital laboratory. It turned out that when the doctor was notified he was being sued for medical malpractice, he went to the hospital and removed the original laboratory report slips that showed his patient had a raging infection. He substituted forged reports that showed a normal white blood count when he sent her home. When that was brought out at trial, the jury not only gave the victim’s family an award for compensatory damages but added an amount for punitive damages, to punish the doctor for attempting to deceive the court.

Since reports of surgical operations and discharge summaries are very important, most hospitals require doctors to dictate the report of an operation before he leaves the surgical suite and the discharge summary within 48 hours after his patient is discharged from the hospital. The dates these reports are dictated and transcribed are indicated by a notation in the lower, left corner that read like this: D: 01/22/09, T: 01/24/09.

In a New Jersey case, a team of neurosurgeons botched a major brain operation, and the patient died. When the patient’s family filed a lawsuit for medical malpractice, and their lawyer obtained the medical records from the hospital, he discovered the report of the operation and the discharge summary had been dictated and typed a year after the patient died and two months after the lawsuit had been filed. Under hospital policy, the doctors would have been suspended and would not have been able to admit patients to the hospital, if the chart had not been completed. But, they had been admitting patients all along, since the patient died, so it was obvious they had destroyed their original reports and substituted falsified reports. The secretary was honest and noted the correct dates she typed the revisions and exposed the doctors’ scheme to deceive the court. The patient’s family won at trial.

Not all cases of alteration of medical records and spoliation of evidence are as easily detected as in this New Jersey case. Sometimes it requires an Authenticator of Disputed Documents (handwriting expert) to prove it to the satisfaction of the court. In a Virginia case, the authenticator found that the doctor had used a pen that was not even manufacturer until after the dates on his handwritten note. If you can show medical records have been altered or destroyed, it puts you in a strong position.

Fourth, a doctor offers to help you with your medical malpractice case or dental malpractice case or promises to be your expert witness. At the last minute, he fails to appear to testify or changes his opinion on the witness stand.

A Utah lawyer was suing an anesthesiologist for medical malpractice, which resulted in the death of a patient during surgery. The surgeon, who had performed the operation was critical of the anesthesiologist and offered to act as the lawyer’s medical expert witness. The lawyer did not bother to look for another expert or obtain any other opinion. The surgeon was also helpful in preparing an airtight case against the anesthesiologist, and there was never any question that the surgeon was responsible, too.

Three weeks before the case was due to go to trial, the surgeon announced that he would not be able to act as the expert witness “for personal reasons.” When the lawyer went to an independent expert, who was located in another city, he was astonished to learn that the surgeon, who had been so helpful, was the one who had committed malpractice and should have been sued. The lawyer did not have a case at all against the anesthesiologist. The surgeon had led the lawyer along until it was too late to sue him. When confronted, the surgeon admitted he never had any intention of testifying. It was too late to find a substitute expert, and the case was lost.

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