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Posts Tagged ‘medical malpractice’
Thursday, February 18th, 2010
School of Thought Rule
You have already read about the New Jersey case, which held that a podiatrist cannot be expected to treat a cardiac arrest, because he is only trained to work below the ankle. However, an Arizona podiatrist treated an elderly man for pain in the leg and lameness. When the patient asked if they should call in another doctor, the podiatrist told him it was not necessary, and everything would be all right. The man had a blockage of the artery to the leg; he eventually developed gangrene and had to have the leg amputated. He sued for medical malpractice, alleging that arterial bypass surgery could have saved his leg. He won his case.
What about chiropractors? They believe diseases are caused by pressure on the spinal nerves and cannot be held to the same standard as M.D.’s or D.O.’s. However, they are expected to know when a disease is beyond their skills and refer the patient to a doctor. A Pennsylvania woman consulted a chiropractor about pains in her back. He took a chest x-ray and manipulated her back for over a year. When she did not improve, she went to a doctor who found that she had advanced cancer of the lung. It was visible on the x-ray taken by the chiropractor, and at that time, it was in an early stage. She sued for medical malpractice and won. The chiropractor claimed he was not a radiologist, an x-ray specialist, and could not be expected to read x-rays as well as a specialist. But, the judge said that if he took x-rays, and his patients relied on his reading them, he had a duty to read them correctly.
How About Faith Healers and Religious Counselors?
Your chances of prosecuting a successful lawsuit for malpractice against a religious counselor or faith healer are not very good. Since there are no recognized standards as to what is acceptable practice for faith healing, it is virtually impossible to establish a complaint of malpractice, which is a departure from good and accepted practice.
If a faith healer or religious counselor is connected with a religious organization, he is probably protected by the First Amendment to the Constitution and immune to lawsuit. About the only claim that has much chance of success against a faith healer or religious counselor is if you have a treatable, medical illness and one of them persuades you not to consult a doctor by promising you a faith cure.
In a California case, the parents of a boy who committed suicide sued his religious counselor for malpractice. They lost the case because: 1.) a religious counselor is not a psychiatrist and cannot be held to the standard of competence of a psychiatrist, and 2.) all communications between a clergyman and a believer were private and privileged under the Constitution and could not be inquired into by the court.
The Doctor Went Outside His School of Thought or Specialty
There is one common exception, to all these limitations on liability that comes up frequently. Whenever a doctor holds himself out as a specialist, or undertakes a medical or dental case that should be handled by another school of thought, medical or dental specialty, he can be held to the standard of that specialty.
If your family doctor treats a serious eye condition, which turns out badly, and you lose the eye, and he says, “It could not be helped. I did my best, but I am not an eye specialist.” Is that a valid excuse? No. If he undertook to do what a specialist should normally have done, he can be held to the level of a specialist. Today, some doctors go outside their field and do things which they are not trained or qualified to do. If it turns out badly, they cannot plead ignorance.
As long as a doctor stays within his area of expertise, he is protected by what lawyers call the presumption of competence, which means the law believes he was competent to do whatever he did. You have the burden of showing he did something wrong. He does not have to prove he did it right. But, if he goes outside his field, that is more difficult for him. It is more difficult to prove you did not do something wrong.
Podiatrists and oral surgeons may commit malpractice in their own field or if they go outside their field. For instance, if a podiatrist tries to do knee surgery or an oral surgeon works on the ear or neck, and anything goes wrong, they are on the defensive.
There are two exceptions to the standard of care that you have to be aware of, the respectable minority and error of judgment rules. They will be discussed in our next post.
Tags: chiropractor, dental malpractice, faith healers, medical malpractice, podiatrist, religious counselors, school of thought rule
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Friday, February 5th, 2010
The State of the Art Rule
This means the doctor has to be up-to-date and in step with modern medicine or dentistry. For example, we know today that lumpectomy (non-disfiguring removal of individual lumps) and simple mastectomy produce better results in most cases of breast cancer than the disfiguring, disabling radical mastectomy that was popular with breast surgeons for many years. Today, a doctor who rushes in and does radical breast surgery, without considering conservative treatment, is not up to the state of the art and is guilty of malpractice.
In a New York case, a 19 year-old girl had been treated with radioactive cobalt for Hodgkin’s disease (cancer of the lymph nodes). The cobalt treatments were successful, and she could have lived a normal life, except for susceptibility to a severe reaction if she were ever given a blood transfusion. One day the hospital mistakenly gave her a transfusion that killed her.
At just about that time, it was discovered that the transfusion reaction could have been prevented by irradiating the blood (exposing it to radiation). When her family brought suit, the case hinged upon whether using irradiated blood was the “state of the art” at the time she died. If it had happened two or three years earlier, it would not have been, and there would not have been any malpractice. If it had happened two or three years later, when irradiating blood had been written up in all the medical journals, it would have been a clear-cut case of medical malpractice. The result? The lawyers finally compromised.
The Rule Is: No one can tell what medical or dental advances will be made next year or even tomorrow. A doctor only needs to practice according to the state of the art today. Even if new developments have been reported in the news, he cannot be criticized for failure to utilize them until they are officially recognized and accepted by the medical or dental profession.
The School of Thought Rule
A doctor can only be judged by the standards of his school of thought. A podiatrist (foot doctor) cannot be held to the standard of an orthopaedic surgeon. An otolaryngologist (ear, nose, and throat specialist) need not be an expert in dentistry. The schools of thought are:
Allopathy (M.D.) - Medical Doctors.
Osteopathy (D.O.) - Osteopaths used to be bone manipulators, but most osteopaths now receive the same training as M.D.’s.
Homeopathy - Homeopaths believe in giving very small doses of drugs. There are few of them practicing. Most homeopaths have become M.D.’s or D.O.’s.
Podiatry (D.P.M.) - Podiatrists work below the ankle and are recognized experts in foot disorders.
Dentistry (D.D.S. or D.M.D.) - Doctor of Dental Surgery or Doctor of Dental Medicine indicate the degree awarded upon graduation from dental school to become a general dentist. There is no difference between the two degrees; dentists who have a D.M.D. or D.D.S. have the same education.
Chiropractic (D.C.) - Chiropractors believe that diseases are caused by pressure on the nerve roots and manipulate the spine. They are licensed to take and read x-rays.
Holistic Healing - Drugless healers who treat the body as a whole and not the disease, usually by diets and nutrition.
Faith Healing - Any one who tells you that you can be cured by faith or belief alone.
Tags: allopathy, chiropractic, dental malpractice, dentistry, faith healing, holistic healing, homeopathy, medical malpractice, osteopathy, podiatry, school of thought rule, state of the art rule
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Wednesday, January 20th, 2010
A physician or dentist does not undertake to cure you. He only has to do his best for you according to the standard of care for his community or medical or dental specialty. If he did not, you have a legitimate complaint. If he did, you probably do not have a case, no matter how disastrous the results.
Many years ago, an anesthesiologist in Rhode Island had a patient die while under anesthesia. The doctor admitted that it would not have happened if he had learned up-to-date techniques used by anesthetists in Boston, which was only 40 miles away. But, he had never gone there to learn and claimed that his outmoded and dangerous techniques were the same as those used by other doctors in the same small city, and the court believed him.
That excuse would not work today. With modern education and travel facilities, more and more states have recognized that a small-town physician or dentist has plenty of opportunity to attend meetings and take courses to keep abreast of new developments in medicine or dentistry. In most states, it is no longer a defense for the doctor to claim that he met the local standard, especially if it is a low standard.
In 1929 the American Dental Association began to establish dental board certification for dentists who wished to specialize. These doctors spend two or more years in advanced training and then must pass examinations administered by a specialty board recognized by the American Dental Association. Since the training, exams, and standards of practice for Board Certified dental specialists are the same everywhere in the country, they can be judged by a national standard.
In the 1930’s, the American Specialty Boards were established to insure that a physician, who claimed to be a medical specialist, was really competent. To be Board Certified as competent in a specialty, a doctor has to spend years training in a hospital and pass rigorous exams. Here, too, since the training, exams, and standards of practice for Board Certified medical specialists are the same everywhere in the country, they can be judged by a national standard.
Sometimes Board Certified specialists will try to defeat medical malpractice cases by claiming they are only local doctors. A heart surgeon in California claimed that he practiced according to a lower standard when he operated in San Bernardino than when he operated in a university hospital in Los Angeles. Unusually, that does not work.
The Standard of Care
There are several ways you can judge whether or not a physician or dentist lived up to the standard of care, or whether he has indeed committed malpractice. In other words, whether the bad result that was devastating for you and your family was justified, or whether the doctor was really to blame.
The Average or Reasonably-Competent Practitioner Rule
A physician or dentist does not have to be the best in the country or even in the top 50%. If all the doctors in the U.S. were rated on a scale from 1 to 10 and the average was 5, half would be above 5 and half below. Does that mean that all the doctors who fall below the 5 average should be considered incompetent? No. As the U.S. Supreme Court once put it, if 51% of the doctors in the U.S. do things in a certain way, it does not mean that the other 49% are automatically guilty of malpractice. The average is what is considered as generally accepted by the profession. All a doctor has to show is that he acted with reasonable skill or as most of his colleagues would have acted.
Tags: american dental association, american specialty boards, average or reasonably competent practitioner rule, board certified, dental malpractice, dental specialty boards, local standard of care, medical malpractice, national standard of care, standard of care
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Thursday, November 12th, 2009
Before you decide whether you have a legitimate complaint for lack of informed consent, let us look at some of the ways you can consent to a doctor’s treatment and some of the ways a doctor can treat a patient without that person’s formal consent.
Implied Consent
This is consent implied by your actions. The very act of walking into a doctor’s office, or a hospital ER, or voluntarily submitting to treatment is a valid consent. If you go into a doctor’s office with a boil on your neck and do not object when he lances it, you have consented. A Mississippi mother sued her local school board, because her child developed a severe reaction to an inoculation that was given to the child at the school clinic. She complained the shot had been given without her consent. The court held that she had given her implied consent by allowing the child to be sent to the clinic.
Verbal Consent
Any time you solicit a doctor’s opinion, advice, or treatment you have consented. It does not matter whether it is in his office, or a hospital, or on a street corner. This applies to simple everyday treatments and office visits, which are easily understood by the average person. It does not cover more complicated procedures, especially surgery.
A South Carolina woman requested a dermatologist to remove a blemish from her face by freezing it with carbon dioxide. The doctor warned her that it might leave a permanent depigmentation (white spot) and even with that knowledge, she agreed. It did and she sued the doctor for medical malpractice, because she had not signed a consent. The court held that her verbal consent was binding, because it was a simple procedure which anyone could understand.
Written Consent
Most medical malpractice lawsuits for lack of informed consent involve written consents. Theoretically, a doctor can do the most complicated and dangerous treatment with only your verbal consent. However, no doctor in his right mind would do such a thing. If the treatment is complicated, dangerous, or involves anesthesia and surgery, a prudent doctor or hospital will obtain a written consent from the patient. This type of consent is valid and binding on the patient, provided it is Fully Informed, meaning that you understood what you are agreeing to.
Consent by Proxy
This is when someone else consents to your treatment on your behalf. The obvious case is a parent consenting to surgery on a child. What if your father is unconscious from a fractured skull and needs immediate brain surgery? Can you give a legally-binding consent? No. In that situation, the doctors have to make the decision and do what they assume the patient would have consented to, if able. Only a spouse, legal guardian, or healthcare power of attorney of a patient can give a proxy consent for someone else.
That does two things. First, it means the doctors cannot pass the buck to you. They are the experts. They are responsible for the technical decisions and must do what they know is best. Second, they cannot do anything to an unconscious patient they know the patient would not have agreed to. For example, they cannot give a blood transfusion to a Jehovah’s Witness or do a hysterectomy on a young, unmarried female.
A teenage girl, who was visiting her aunt in Boston, decided to go to a doctor and have warts removed from her face. Both she and her aunt signed the consent for treatment, which scarred the girl’s face. She sued the doctor for medical malpractice and won. The court held that she could not consent, because she was underage; the aunt was not her legal guardian, and there was no emergency. Therefore, the consent was not legally binding on the girl or her parents.
However, this type of complaint may be difficult to win. It is based on the traditional legal theory that a minor cannot enter into a contract. In recent years, that rule has been seriously undermined by laws permitting teenagers to undergo abortions without their parents knowledge or consent. While the law still requires minors to obtain parental consent for other forms of treatment, the courts are more reluctant to enforce the rule. It does not make sense to permit a doctor to do an operation like an abortion, with only the teenager’s consent, but penalize him for doing trivial procedures, like removing a wart, with the same consent.
The child of two Jehovah’s Witnesses was admitted to a hospital in Maine following an auto accident. A blood transfusion was urgently required to save the child’s life, but the parents refused to consent on religious grounds. No one else could do it. So, the hospital administrator went to a local judge, who appointed the administrator and the doctor in charge of the case as temporary legal guardians. That gave them legal authority to order the transfusions, and the child’s life was saved. When he was out of danger, the judge returned the child to the custody of its parents. How did the parents feel when it was all over? They were happy and grateful their child’s life had been saved without having to violate their religious beliefs.
The Rule Is: There are a number of ways you can consent to treatment for yourself or a member of your family. However, the important points to remember are:
1. A consent only covers your specific illness and the immediate treatment agreed upon between you and the doctor. It does not cover any other disease condition the doctor may find, unless it says so in the consent form.
2. It is not transferable. It only applies to the doctor and the patient named in the consent. If you consent to surgery by one doctor, they cannot switch doctors. That is abandonment. If you consent to have one child’s tonsils out, they cannot do the other child. That is a battery.
3. Consent cannot be given by a family member, even if the patient is unconscious, unless the family member is a spouse, the legal guardian, or has healthcare power of attorney. If the patient cannot consent for some reason, the doctors will obtain a consent from the closest relative available. But, it is not legally binding on the patient. In that situation, the doctors must make the decisions themselves.
Tags: consent by proxy, fully informed consent, healthcare power of attorney, implied consent, informed consent, medical malpractice, medical malpractice lawsuit, medical malpractice lawsuits, verbal consent, written consent
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Sunday, September 27th, 2009
A mugger sticks a knife in you and kills you or leaves you maimed for life. A surgeon sticks a knife in you, and kills you or leaves you maimed for life. What is the difference between the two? The mugger will go to jail and the surgeon will not. Why? Because you consented: you signed a consent form and gave the surgeon permission to stick the knife in you.
What if you did not consent? What if you were in an auto accident and unconscious, or the patient was a child who could not understand what was going on, or the doctor did something against your will? Do you have a valid complaint? It all depends on the circumstances.
Under normal circumstances, a doctor who does something to a patient without consent commits what lawyers call a Battery, which is when someone actually touches you without your consent and does you some harm. It is different from an Assault, which means putting you in fear of imminent injury. Angry words do not constitute an assault, unless you have good reason to fear that violence is about to follow. It is important to remember the difference when you are thinking about whether you have a valid complaint for lack of consent.
A Maryland ENT specialist obtained a consent form to operate on a patient’s right ear. By mistake, he operated on the left ear. He claimed there was no harm, since he had done a good operation on the left ear, which was also diseased and would eventually have required surgery. But, the court held that no matter how skillfully he had operated, he had committed a battery, because he did not have permission to operate on the left ear. He was guilty of medical malpractice, because he negligently failed to check and make sure he was operating on the correct ear.
A Missouri plastic surgeon, who was confronted by an angry and dissatisfied patient, pulled out a can of mace and sprayed the patient in the face. Spraying mace in the patient’s face was a battery. It got into the patient’s eyes, nose, and mouth and did a lot of harm. If the doctor had just threatened him with the can, so he was afraid he would be injured but had not actually sprayed him, that would have been an assault. Actually, it was both assault and battery, because the outraged patient was put in fear as soon as he saw the can of mace coming at him, as well as being injured. The doctor’s action was worse than medical malpractice. It was a crime, and the doctor lost his license to practice medicine.
That case was unusual. Many medical malpractice cases involve battery, but it is what lawyers call Inadvertent Battery; the result of carelessness or an honest mistake. The doctor operates on the wrong eye, or a nurse gives an injection to the wrong patient. They do not mean harm, but it is medical malpractice all the same. The doctor who operated on the wrong ear certainly did not intend to harm his patient. In fact, he did a first-class operation, but he made a careless mistake.
The courts treat inadvertent battery as plain malpractice or even a slip of the wrist accident. They are not willing to penalize a doctor for a mistake that could happen to anyone and may dismiss such a complaint or give a small award. However, if a doctor deliberately does anything to harm his patient’s physical or emotional well-being, without the patient’s consent, that is what is known as a Battery with Malicious Intent.
A Long Island dentist was found guilty of having had sex with his patients while they were asleep under anesthetic. That was battery with malicious intent. A psychiatrist in a VA hospital gave a patient a potent, mind-altering drug used only on animals as an experiment and without his knowledge or consent. The patient went crazy and committed suicide. The jury found the doctor guilty of battery with malicious intent and assessed heavy damages that he had to pay out of his own pocket.
The Rule Is: If you have been the victim of battery with malicious intent, it means the doctor is under tremendous pressure to settle.
Tags: assault, battery, battery with malicious intent, consent form, inadvertent battery, informed consent, lack of consent, malpractice. slip of the wrist accident, medical malpractice, medical malpractice cases, valid complaint, victim of battery with malicious intent
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Friday, September 18th, 2009
Multiple Defendants
You were treated by many doctors over a period of time and cannot be sure which one was responsible or whether they all were. This is the most difficult type of malpractice case to win for the following reasons:
1. Medical malpractice lawsuits against multiple defendants require an enormous amount of paperwork and added expense.
2. Juries might believe that one or two doctors committed malpractice but are reluctant to believe that all the doctors and two or three hospitals were all negligent.
3. Jurors are turned off by what they see as harassment suits against innocent people.
4. The most important reason is that the lawyer for each defendant will make a summation speech to the jury at the end of the case, which means that the jurors will hear multiple arguments against you and only one argument - your lawyer’s - in your favor. That loads the odds heavily against you, and such cases are usually lost.
An airline attendant sued a California dentist for dental malpractice that resulted in her losing most of her teeth. However, in the course of her work, she had been treated by four other dentists in different cities, during and after the poor work done by the California dentist. Her lawyer had an impossible job of trying to sort out who was responsible for what, and he could not drop any of the defendants, because their work was overlapping. She finally dropped her case.
The Rule Is: As your attorney makes discovery and finds out what really happened and who was responsible, you drop your complaint against everybody who was not responsible and try to end up with not more than 1 or 2 opponents in court.
The Doctor Made a “Slip of the Wrist.”
Be careful of the mishap which can be defended as a “slip of the wrist” or unforeseeable accident. We all make honest mistakes, and medicine and surgery are arts and not exact sciences. If the statistical chances of a bad result from the operation you had are 2%, and your doctor testifies that he has done over 200 and yours is the first one he ever had to go wrong, the jury will probably go along with him. No one is perfect, and doctors are only expected to adhere to good and accepted medical practice.
Unless the doctor has persuaded you to go ahead with surgery or treatment on the basis of a promise of specific, good results, such as in Cosmetic Plastic Surgery, the law says that he only undertakes to treat you and does not guarantee any results. However, if there was a Pattern of Negligent Behavior - he was negligent on more than one occasion while treating you - it blocks the simple mishap defense, and your case is much stronger.
The Local, Small Town Doctor
The physician who looks and acts the part of the sincere, dedicated, well-qualified doctor, and who is well thought of in the community, can be a tough opponent, no matter what he did. The jury is going to believe his version of what happened, because the jurors like and trust him.
In a case in upstate New York, a neurosurgeon had a patient who died. The doctor was in his 80’s - too old to open somebody’s head - and made terrible errors, which caused the patient’s death. No doubt about it. Technically, it was an open-and-shut case. The widow sued and brought in well-qualified professors in Neurological Surgery and Pathology as her medical expert witnesses. The doctor’s medical expert was a pathologist with dubious credentials, who showed microscopic slides that he said were from the patient but were proven to be from another person and exposed as fraudulent. No matter! The doctor was a beloved old, local character who knew practically everybody in town. The jury was not about to find him guilty of malpractice - and it didn’t.
The Rule Is: Eminent doctors and famous hospitals can usually brush off weak or dubious lawsuits. Juries are reluctant to believe that they would do anything wrong. They are tough opponents and you must have a strong case if you hope to win. One way your lawyer can neutralize local popularity or prestige of a formidable opponent is by a legal maneuver called Change of Venue.
Tags: change of venue, cosmetic plastic surgery, dental malpractice, expert witness, malpractice, malpractice case, medical expert, medical expert witnesses, medical malpractice, medical malpractice lawsuits, multiple defendants, pattern of negligent behavior
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Friday, July 3rd, 2009
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.
Outrageous Conduct
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.
Tags: altered medical records, consent to treatment, contaminated needle, doctor outrageous conduct, experimental treatment, foreign doctors, healthy person injured, medical malpractice, permanent deafness, Plastic Surgery, spinal tap
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Friday, April 17th, 2009
Medical and Dental Records:
What you need to know and how to understand what you have.
Types of Records
Medical and Dental Office Records:
1. Notes made each time the patient was seen
2. Records of telephone conversations with the patient
3. Reports of laboratory tests and x-rays made in the office or somewhere else
4. Copies of x-rays made in the office
5. Copies of photographs made in the office
6. Copies of important parts of the patient’s hospital chart, if applicable
7. Copies of insurance claims
8. Copies of correspondence with other doctors regarding the patient
Hospital Records
A. Primary
The following records should be considered a must, if applicable to your case.
1. Face sheet
2. Emergency room record, if applicable
3. History and Physical examination
4. Doctor’s admission and progress notes
5. Reports of consultations with other physicians
6. Anesthesia records, including the anesthetist’s preoperative consultation and
examination
7. Operative reports
8. Labor and delivery records, if applicable
9. Examination of newborn infant
10. Recovery room and/or ICU records
11. Surgical Pathology report
12. Reports of x-rays, EKG, fetal monitoring strips, and any other special
diagnostic tests that were performed
13. Copies of x-rays or other diagnostic tests that were preserved on film or CD
14. Graphic chart (temperature, pulse, blood pressure, etc.)
15. Incident and accident reports, if the patient fell or was injured
16. Autopsy protocol, if applicable
B. Secondary:
These records may comprise as much as 80% of a hospital chart. Request only those pages that contain pertinent information.
1. Routine laboratory reports
2. Nursing notes
3. Physicians’ orders
4. Medication records
5. Consents to treatment or surgery, unless lack of informed consent is part of your client’s complaint
C. Limited value:
Do not order these records, unless they are pertinent to your case.
1. Dietary notes
2. Input and output records
3. Nurses’ worksheets
4. Physiotherapy, respiratory therapy, counseling, etc.
5. Correspondence regarding your client’s case
6. Financial records
7. Receipts of valuables
Hospital - Internal Records:
These are records the hospital keeps, and very little is ever heard about them. In certain states, some of these records are protected by law and not available.
1. Operating Room Log
This is a record kept by the head operating room nurse. It records everything that went on and who was in the OR, including the pre and postoperative diagnoses and the names of all nurses, anesthetists, and personnel who went in and out of the room. From this log, you can learn what actually happened (not the doctor’s version as found in the operative report) and the names of witnesses, who can give a true account of events.
2. Morbidity and Mortality Conference
Extreme problems with a patient or unexpected death may result in the medical staff convening a Morbidity and Mortality Conference. Here doctors speak out frankly about what was done wrong and ways to prevent it from occurring in the future. Frequently, the minutes of these meetings are not available, even with a court order.
3. Tissue Committee
This committee reviews surgical pathology reports on specimens removed during surgery to check on the necessity of the operation. Often, this committee will find the doctor’s diagnosis incorrect, and the surgery should not have been performed.
4. Infection Committee
This group monitors infections occurring within the hospital and discusses methods of prevention. If the doctors on this committee are critical of treatment your client received, it will greatly enhance your case.
5. Tumor Committee
Monitoring of diagnoses and treatment of cancer patients is the primary focus of this group. If there is a question as to timeliness or accuracy of diagnosis by the treating physician, the records of this committee could be beneficial.
6. Medical Records Committee
The Joint Commission on Accreditation of Hospitals has established strict rules and requirements on how a hospital is to keep, maintain, and preserve records safely. Periodic reviews of medical charts for deficiencies, inconsistencies, and alterations are conducted by this group.
7. Credentials Committee
This committee reviews the qualifications of all doctors, who apply for staff privileges. While hospitals are not generally liable for what an independent doctor does in each case, the hospital does have an obligation to be sure the doctor is qualified to exercise the privileges accorded him or her and to check his or her performance periodically. If the records of the Credentials Committee indicate the doctor was not qualified to treat your client, the hospital may also be liable for the injuries sustained by your client.
8. Quality Assurance Committee
Once a doctor is admitted to the hospital staff, his or her performance is monitored. If your client was a victim of malpractice, it can be assumed, the case was discussed by this committee. You may also find this doctor was in trouble with the credentials committee before, for the same type of malpractice.
9. Medical Staff/Department Meetings
In smaller hospitals, the medical staff meets periodically to discuss cases. In larger hospitals, departmental meetings are held for the same purpose. In either case, minutes are written and maintained as permanent records.
These are only a few of the many internal hospital records, which may contain valuable information. In order to encourage hospital staffs to improve patient care, and to protect doctors who serve on committees from reprisal, most states have passed laws making some of these internal records secret. Laws vary from state to state. In some states, you cannot obtain access to them, for any reason. In other states, some or all of them may be available; if you can convince a Judge they contain information essential to your case.
Tags: dental malpractice, expert, expert witnesses, experts, medical malpractice, medical record review, trial witnesses
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Monday, March 30th, 2009
Over 60% of malpractice cases are decided in favor of the defendant. The majority of cases are not decided by chance but by the actions of the attorneys involved. Simple, preventable errors make the difference between winning and losing.
Reasons for Losing Cases
The three main reasons why plaintiffs’ attorneys lose cases:
1.) The complaint was without merit and the action should never have been commenced, because there was no departure from good and accepted practice. Medicine and Dentistry are not exact sciences, and the best-planned treatment can end disastrously. Bad results alone do not make a prima facie case. Every successful malpractice action begins with an identifiable departure from good and accepted practice.
2.) Failure to secure the assistance of a qualified medical or dental expert, who can give reliable guidance during the conduct of the case and can testify effectively. Do not commence an action until you have secured a competent medical or dental expert.
3.) Failure of the attorney to acquire a thorough grasp of the technical, medical or dental questions involved. Like the law, medicine and dentistry cannot be learned by home study or seminars. Only thorough, in-depth research and interpretation of the literature can adequately prepare an attorney to conduct a malpractice case.
If you avoid these three fundamental mistakes, you can more than double your chance of winning.
How do you avoid these errors?
1.) Either before you accept a case, or while you can still amend the pleadings, and certainly well before the statute runs on any possible defendant, obtain a reliable analysis of the case and an opinion as to its merit.
2.) Secure the assistance of the best medical or dental expert available, even if it means paying more. There is no second prize in a malpractice action.
3.) Utilize all the facilities at your disposal to familiarize yourself with the technical details of your case. You must obtain the latest and most comprehensive literature and by all means seek assistance from your expert or someone who can explain it in terms you can understand. Before you commence discovery, you must know as much about the technical questions involved as possible.
The most important of these three is the second, getting the best expert witness you can find, because a good expert can get you over the other two hurdles. A medical or dental malpractice case is no better than its expert witness.
What do you look for in a good expert? There is probably no such thing as a perfect expert, who is ideal for every case. The inexperienced physician or dentist may make costly errors, but the experienced testifier may be attacked as a hired gun. The big city professor may be resented by the jury as an outsider, but the local doctor may take a dive under political pressure.
What are the qualities that make winning experts?
1.) He or she should be certified by a recognized specialty board.
2.) The expert should have at least five years experience in clinical practice or teaching and not have been retired for more than two years.
3.) He or she should have an impeccable reputation in the medical or dental community and, preferably, a connection with a medical school.
4.) The expert should have the ability to identify legal as well as clinical issues in a case and to explain them in simple, understandable terms.
5.) He or she should have testified at least once before, so the expert is less likely to waffle or panic under attack by opposing counsel.
6.) He or she should be located far enough away form the situs of the action to be beyond reach of the local, medical or dental establishment but close enough that travel is neither too expensive nor time consuming.
7.) The expert’s fees should be reasonable and consistent with those charged by comparable professionals. Fees that are too high or too low are danger signals that may indicate a hired gun or an unreliable witness.
How do you find this ideal expert?
There are four ways. Any one of them can produce a good or bad expert, who will win or lose your case. The one that appears the least expensive and easiest may turn out to be the most expensive and risky. Here is how to avoid pitfalls that await the unwary attorney who sets out to find a credible expert.
I. The Local Amateur
1.) He or she is the most dangerous and uncertain. The so-called conspiracy of silence is really a conspiracy of intimidation. A doctor easily can be made to see that he or she is risking a career by testifying against a colleague. Local experts are notorious for their tendency to recant their testimony or bow out just before trial and throw your case into the legal equivalent of cardiac arrest.
2.) Doctors, who value their professional connections, will not testify against local colleagues. One who does probably does not have the standing or repute to be an effective witness.
3.) Unless you have an unusually large circle of friends in the medical or dental profession, it is unlikely you know a doctor with the necessary board certifications or credentials, who will also testify for you, and your expert may not be qualified to testify.
4.) The local doctor, who offers to help you, may really be helping the defendant by feeding you false information and lulling you into a sense of false security until it is too late.
5.) If he or she is a relative or close friend of anyone in your law firm, the expert may be disqualified as having an interest in the case.
II. The Medical or Dental Authority
Some authors and lecturers recommend seeking a doctor who has published works which agree with the allegations of your case. This approach is expensive and rarely successful.
1.) The old-school-tie spirit is much stronger in medicine and dentistry than in law. Most doctors have a deep-seated aversion to plaintiffs’ attorneys and will not even talk to you, much less help you sue another doctor. The more eminent the doctor, the more this holds true.
2.) Appeals to eminent doctors to testify “in the public interest” or “to help clean up the medical profession” are simply naïve and doomed to failure. Doctors know perfectly well that your interest is financial and that medical and dental disciplinary committees are the proper forum for policing their colleagues.
3.) The time and expense involved in traveling around the country, seeking interviews with eminent doctors, is usually prohibitive.
III. The Solo Expert
This is the professional witness, who advertises his or her services directly in the legal media. He or she may be a superb expert or a disaster.
1.) Opposing counsel, and malpractice insurance carriers, also read the ads in legal media, and if a doctor has ever advertised his or her services, he or she is open to collateral attack as a professional witness.
2.) The professional witness may claim fictitious credentials, conceal adverse data, or have testified as an expert outside his or her specialty, all of which destroy the expert’s credibility. You may be unpleasantly surprised at trial.
3.) He or she has no backup. If the solo expert drops out or is disqualified, your money is lost, and you are back to square one, possibly at a critical moment in your case.
4.) Solo experts tend to be very expensive, charging up to $2,500.00 or more to review a file and up to $10,000.00 or more per day for courtroom testimony.
IV. The Medical Legal Service
The basic function of a medical legal service is to provide accurate case evaluations and qualifiable medical and dental expert witnesses, who will testify for plaintiffs and defendants.
1.) A good service will utilize reputable, qualified physicians and dentists, offer ongoing back-up and ancillary services, and charge reasonable fees that are clearly spelled out.
2.) Their preliminary case evaluations should be performed by a specialist qualified in the specialty involved. Preliminary case evaluations by qualified specialists not only point your case in the right direction from the beginning but protect you against countersuit for legal malpractice.
3.) The service should be able to guarantee you experts from the different specialties your case involves and back-up experts, if your expert must withdraw from the case.
4.) A medical legal service should be able to provide you with an expert in your geographic area but far enough away to be immune to peer pressure by the local medical or dental establishment.
Tags: dental malpractice expert witness, dental malpratice, expert witness, medical malpractice, medical malpractice expert witness
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