The Basics Elements of Medical Malpractice.

[jbeany]

I attended a legal seminar today, and one of the featured speakers was a medical malpractice lawyer.  He gave a great basic outline of medical malpractice cases.  He's using Michigan law, but the basic elements are the same all over the U.S., regardless of state.  I hope no one on here needs this info, but if you do, here's an overview.

Malpractice is a state level claim, not a federal one brought in the high level federal courts.  (There are a few exceptions, but they tend to apply only to prisoners in federal prisons being treated by doctors in individual states.)   This means that you are suing someone for violating state laws.  The laws, or statutes, forbid medical malpractice.  You need to find your own state statutes to find the exact wording, but the idea is the same all over.

State malpractice claims might be considered together with a federal claim under the Patient Anti-Dumping Law (EMTLA, which says you must be treated in a life-threatening emergency, regardless of insurance coverage or lack of it), because that is a federal law - but the medical malpractice claim that might go hand in hand with such a claim is still a state claim.

Malpractice is a civil lawsuit.  Medical malpractice is NOT a crime. As much as you might wish it was if it was someone you care about injured by a medical screw-up, it's not criminal.  The prosecutor's office won't get involved unless it's an "Angel of Mercy" case, with someone intentionally killing patients. 

To win a medical malpractice case, you must prove 4 elements.
1.  There was a Physician-Patient Relationship
2.  There was a Breach of the Standard of Care
3.  There was Proximate Cause
4.  There were Actual Damages

To go into more detail...

#1.  To prove there was a Physician-Patient relationship, you must establish that there the doctor took an active role in treating a patient.  Giving information and/or opinions without actual patient contact is not usually enough to establish a relationship.  The example given in the lecture:  If you are in the ER, and the the doc there calls your regular doc to discuss your case, the doc offering information about you, or suggesting a possible diagnosis is not enough to include them in a malpractice case.  That falls on the doc who made an actual diagnosis based on the opinion.

#2.  To prove a Breach in the Standard of Care - you MUST have an expert who will testify that your doc did not follow the standard of care that is established by the clinic, the hospital, the state, etc.  Only a doctor who is in the same field, at the same level, can testify to the standard of care.  If the ER doc in the above example says "Oh, you had a mini-stroke.  Take aspirin and follow up with your regular doc,"  only another ER doc can testify to the standard of care that should have been given.  What would any other ER doc have done in the same circumstances?  Would they have refered you to a specialist?  Or done the same thing? 

In the example case, if the aspirin doesn't stop the next, bigger stroke, you might be able to find a neurologist to say cumadin might have helped.  But if you want to hire the expert neurologist to testify that putting you on cumadin instead of aspirin would have prevented the next massive stroke, that won't prove the ER doc was at fault.  The expert doesn't know the standard of care in the ER.  Only another ER doc can say what would constitute malpractice on the ER doc's part.  There might be some new, fabulous drug option that a specialist like a neurologist might have known about that could have stopped any further strokes, but it the ER doc was not expected to be aware of it, and he followed standard procedure, he's not committed malpractice.

#3. Proximate Cause is the part that is most often overlooked, but it's just as important as the other 3 elements.  If you can't prove this, the doc's lawyers can get the case dismissed.  Proximate cause is the "But For" test. "But for the actions of this doc, I would be fine/healthy/whole/not as bad as I am now/etc."  Under Michigan law, the doctor does not need to be the ONLY cause, but he must be A cause of the damages.  For example, if you are injured in a car accident and have surgery that fails to restore your spine so you can walk again.  You can argue the doc screwed up and that's why you can't walk, you may have a malpractice claim if you can prove you would still be walking without his error.  The doc can't blame it all on the car accident IF you can prove element #2 - that he didn't meet the regular standard of care while he did the surgery.  But, if you can't prove he committed an error that was outside regular, routine medical practice during the surgery, it wasn't malpractice.

#4. Actual Damages are provable damages - injuries, economic losses, and, to a certain extent, pain and suffering.  That may sound counter intuitive, but  there must be damages you can see or show or list amounts for.  Pain and suffering can be shown.  This is not about theoretical damages.  If a doc screws up and writes you the wrong script because of a total lack of diligence on his part, but you or the pharmacist catch it before you take it - there's no damage done.  You're ticked and annoyed and imagining what the results would have been, but you didn't suffer any real damages. because being ticked and annoyed isn't enough that a reasonable person on a jury is going to think you were injured.

One of the tricky things most people don't understand about damages is that in order to claim them, you have to have tried to mitigate them.  If the doc sets a broken leg wrong and you can't work your old job ever again, then he's on the hook for a life-time's worth of projected income, right?  Nope.  You have a duty to do what you can to find a different doc to fix the error, or find a way to work in spite of the injury.  If you don't, and you go to court and demand the entire income you calculated you could have earned on your feet for the rest of your life, the defense lawyer is going to counter argue that they only owe the difference between your last job and the one you have now.  You aren't legally required to have more surgery, but you are required to do your best to lower the financial damages (mitigation) in other ways. 

Okay, that's the elements you have to prove.  Now, you need to know there's a time limit to when you can file the claim and attempt to prove them.  In Michigan, you have 2 years to file notice that you think you have a medical malpractice claim.  This 2 year clock starts counting from the minute the malpractice occurred, NOT from the time you discover it.  So if your current doc looks back at your records from 3 years ago and says, "Geez, this guy totally screwed up!" you don't have any claim.  If the malpractice was a long term thing, say going on for 3 years, you only get to claim what damages were done in the 2 years before you filed the claim.

Again, check with your own state laws to see what the time limit, or "statute of limitations" is for you.

Under Michigan law, there's a little leeway on extending the time limits.  If you discover the mal-practice in the 6 months before the clock runs out, filing a "notice of intent" to sue for malpractice extends the clock by 6 months.  This means if you figure it out 3 weeks before the clock runs out, you can file the notice of intent, and have 6 months to work on seeing if you have enough evidence to file a malpractice lawsuit.  The notice of intent must be filed in every case as a standard part of the process, but only the ones filed in the last 6 months affect the clock.  The tricky part to filing notices is that you must be prepared to name everyone who was part of the malpractice when you file the notice of intent to sue.  If you miss somebody crucial, you can't drag them in later.

 If you can't get together enough proof for all 4 of the elements above, and find a doc who will testify that your bad doc didn't meet the normal standard of care, then you can't file the claim.  (Well, you can, but the other side will get it dismissed so fast you'll need a new doc to treat you for your spinning head.)

So that's the basics of medical malpractice.  It's never an easy thing to prove. You must have experts - expert docs and expert lawyers.  It costs a lot, and few lawyers want to take anything other than the most solid cases, because they are so hard to win and so unlikely to pay off.

[willowtreewren]

Very interesting, Jbeany. I hope I never need to use this! 

Aleta

[malaka]

Pretty good note taking, I'd say.  As one who screens these claims, the hardest thing for people to understand is that not all bad results are malpractice.  For instance, a failure to diagnose pancreatic cancer (a very lethal type of cancer) is not going to make much difference in patient outcome.  Therefore, not often actionable malpractice.  The other thing many mistake for malpractice is bad bedside manners.  Its not malpractice for a doctor to be gruff, unsympathetic, etc. 



And the comment above is 100% correct.  You do not want to be in a malpractice case -- you should hope you never are.

[amberrussell]

Most of us heard about medical practice acts and the people who are affected. First, the physicians, and next the nurses. But they are not the only health providers that can be accused.

Basically, medical malpractice is negligence committed by a health care professional, whose performance of duties depart from the standard of care of those with similar training and experience. There are myriad different types of medical malpractice. This includes: medication error, misdiagnosis of a patient's symptoms, and delayed treatment. Most medical malpractice actions are filed against health providers who have failed to utilize reasonable care to treat a patient.

On the contrary, there is certainly a big misconception about medical negligence. The main problem is that a majority of complications similar to infections and other acknowledged problems usually are not viewed as malpractice. To further understand about when to file medical malpractice lawsuit, you can visit this site: Medical Mistakes -- A Primer on the Basics of Medical Malpractice. It was a short article from Mr. Haskell, a popular lawyer in Spokane WA that has won a bunch of million dollar legal claims. That will supplement everybody with information about medical issues, and will widen horizons about medical malpractice.

[malaka]

Its not as easy as many lawyer ads make it appear.  Many of the ads troll for the one in fifty good cases. 

Here's an example.  Failure to recognize signs and symptoms of cancer is malpractice -- i.e. below standard of care treatment. (Assume this is always true for this hypothetical).  Pancreatic cancer has less than a 5% five year survival rate, and there is no generally accepted treatment where the consensus is that such treatment extends a patient's life expectancy.  Dr. X fails to diagnose pancreatic cancer.  Dr. X. isn't responsible for malpractice since his failure to diagnose didn't cause provable harm to the patient.  In short, the defense is "so what??"

Same scenario, but substitute colonn cancer for pancreatic cancer and that colon cancer has an 85% + five year survival rate if recognized and treated in earlier stages.  Failure to diagnose colon cancer is malpractice.

Then there are those cases where there is malpractice but the injury doesn't warrant spending the money or time.  I tried t explain this to a client whose complaint was failure to diagnose gall bladder rupture causing 8 to 12 hours of needless pain and suffering.  Hospital #1 sent her home.  Hospital #2, reading the exact same radiology films, spotted the rupture and referred to surgery right away.   Injury = 8 to 12 hours of pain.
II don't think she understood that nobody was going to view her as permanently impaired despite the easlly proven medical mistake.

My own situation is idiopathic membraneous nephritis. One third of patients recover, on third continue to spill protein in urine, one third go on to kf and dialysis / transplant.  And nobody can predict in advance which group any given patient will be in.  So, filure to diagnose earlier wasn't actionable malpractice since there's no corolation between earlier diagnosis and cure.

[shannonwells830]

Yes proving medical negligence claims can be difficult because you have to show your incident was brought on by unskilled medical care.  You also have to demonstrate that the inadequate treatment actually triggered your injury.

[stringbandbeth]

"
   Malpractice is a state level claim, not a federal one brought in the high level federal courts.  (There are a few exceptions, but they tend to apply only to prisoners in federal prisons being treated by doctors in individual states.)   This means that you are suing someone for violating state laws.  The laws, or statutes, forbid medical malpractice.  You need to find your own state statutes to find the exact wording, but the idea is the same all over.  "
     

 IMPORTANT-  Please note that any case against the Veterans Administration is tried in a federal court.

[Lillupie]

When I was very first diagnosed, people tried telling my mom to sue, and we didnt feel like it.

What happened is I was first anemic, anemic to the point of needing blood transfusions. This was in Feburary of 1999. My hb was, I think, 5 or 6! So we got blood transfusions for me, and I was put on iron pills 3 times a day. A few months later, not much of a change. The hematologist I had said my protein was low (was peeing it out, never was checked) and I need to be in a mental hospital for people trying to starve themselves (I also lost a lot of weight and got down to 76lbs!). We refused for me to go to the mental hosptial because that wasnt true. It was my ultimate dream at the time to be fat. (sorry fat people to me had bigger boobs).
Shortly after that, we went to the ER and asked for a different doctor. This one didnt know what was wrong with me either, he got different doctors from different hospitals to come in and try to diagnose me. It was lupus with kidney failure. This was in May 1999. I was put on 40mg of predisone. By June it was raised to 60mg, and by July all hell broke lose. I was in the hospital for 2 weeks straight just for the sideeffects of the predisone! I was in the ICU for high blood sugar, I had a bacterial infection, was on oxygen, a heart monitor, had to get MRIs, CAT scans, lung biopsy, had glacoma in one of my eyes. The doctor tried saying I had Wegners and I had to go through the ringer to prove to her I didnt. It was all the sideeffects of predisone!

Atleast I was able to keep off of dialysis for 8 years.

[Rerun]

Thanks for posting this Jbeany.

       

[kporter85db]

I think I would have had a case, if I didn't wait past the statute of limitations.