I have many friends who are doctors, nurses, therapists and technicians, and I have a great deal of respect and admiration for their professions. I often hire medical expert witnesses to help me prove my legal cases. I am a plaintiff’s medical malpractice lawyer.
Those three words -- medical malpractice lawyer -- can instill fear in hearts and minds of medical professionals. They have almost an unnatural fear of being sued. Some say they feel as if their work constantly is being scrutinized and second-guessed by patients and lawyers alike.
I have been asked repeatedly, especially by physicians, what they can do to make sure they are not sued. It seems to be at the forefront of their lives. Is this fear of being sued rational? Maybe not, but how many people go to work with the mindset that if they make one mistake, they can lose everything they have worked for during their career?
With that in mind, I offer the following observations about medical malpractice cases. I should note that I, like my colleagues, do not take suing a medical practitioner lightly. We realize that not only is the patient’s care at issue in these lawsuits, but so too is the reputation of the medical practitioner. Although it does not always appear to be so, there is great deal of mutual respect between the plaintiff’s bar and the medical profession. Only the most serious cases are brought to court.
Lawyers do not enjoy bringing malpractice suits. They are among the most difficult types of cases we handle. I would prefer an automobile accident case over a malpractice case any day. Malpractice cases are some of the most expensive cases an attorney can pursue, and the most difficult to prove.
Most people do not realize that plaintiff’s lawyers pay the case expenses for these lawsuits. Case expenses can range from filing fees to medical record copy costs to issuing subpoenas. They are also the fees we pay witnesses for their time testifying at depositions and in court. In a simple auto accident, an attorney can expect to pay $2,000 to $30,000, depending on the extent of the injuries suffered by the client. If we lose, that money is lost. We never ask the client to reimburse the expenses because, for the most part, these clients cannot afford to pay attorneys to handle their cases.
Defendants, on the other hand, are generally covered by insurance policies, which guarantee free legal representation. For malpractice cases, depending on the complexity of the medical issues involved, the case expenses can add up quickly. In a straightforward medical negligence case, an attorney can expect to spend a minimum of $50,000.
One of my colleagues told a legal seminar I attended recently that whenever his office accepts a medical malpractice case, $85,000 to $100,000 in case expenses are automatically budgeted, regardless of the issues involved. If a lawyer accepts a malpractice case involving labor and deliver of a baby, the case expenses skyrocket to at least $250,000. I have heard of attorneys losing over one million dollars in case expenses on a malpractice case that was lost. Imagine handling a handful of these cases. How many malpractice cases can a law firm afford to lose before they shut their doors for good?
Did you know that malpractice attorneys will reject 9 out of 10 cases they are asked to take. This is true at my office, as well. The only way a malpractice lawyer can survive is by being very selective with cases.
Most people probably don’t know that malpractice lawyers are not allowed to bring a lawsuit against a medical professional unless a member of the same profession as the person we are trying to sue certifies that the lawsuit has merit. The certification is done by way of a written report, which is attached to the lawsuit. This means that one of your peers must certify that the case has merit. The certificate requirement serves as a check valve to make sure that only legitimate cases are brought. Any frivolous matter are dismissed instantly.
Most people also don’t know that the majority of malpractice cases are lost. In Cook County, Illinois, where I practice, two-thirds of malpractice lawsuits are lost. In some of the more conservative counties, medical professionals win close to 80 percent of the cases brought against them. It is common knowledge that juries hold medical professionals in high esteem and are reluctant to enter verdicts against them. This means that if you are sued, odds are that you will win.
Now that we have a little background about medical malpractice lawsuits, let’s look at what you can do to minimize your risk of becoming a defendant.
A patient’ s medical records are at the core of every malpractice lawsuit. Ironically, the same set of medical records can serve as the sword for which to bring a lawsuit or a shield with which a lawsuit is defended. If you are sued, you can make sure you are protected by documenting all pertinent findings and impressions. Be as specific as possible. Chart any significant negative findings. Remember and live by the old saying, “if it’s not in the records, it didn’t happen.” I have seen defense lawyers blow up exhibits of medical records at trial showing the jury that their client was meticulous in record keeping. When in doubt, write it down. The note can be as simple as “I advised patient of test results.” Or, “I told the patient to come back
if the problem persists.” Juries hate cases where the patient missed scheduled appointments or failed to follow the provider’s instructions. If it is your word against the patient who is suing you, your records will save you, but only if the notes are clear and detailed.
“Standard of care” are the magical words that set the standard by which medical providers are judged in a court of law. Simply put, the standard of care is what a reasonably careful provider would do, or not do, under a specific scenario. Malpractice occurs when the provider violates, or breaches, the applicable standard of care. For example, a child falls off a swing and strikes his head. There was a loss of consciousness followed by a headache and nausea. Given the signs and symptoms, a CT scan might be indicated when the child presents to the emergency room. Failure to order a CT could result in a violation of the standard of care for an emergency medicine physician. If the child suffers an injury as a result of the failure to do a CT scan, it can open the door to a lawsuit against the provider.
It is important to remember that “the standard of care” is an everevolving target. Ten years ago, the standard of care required a simple blood screening test known as a PSA test for men over 40 years of age to detect early prostate cancer. Today, based on new studies, I can see a change in the standard of care. Because of the potential for false positives and the fact that elevated PSA tests usually call for invasive biopsies and prostatectomy, and because prostate cancer is a slow-growing cancer, the standard of care may one day call for a change to the present practice of requiring a PSA test for men over 40 years of age. Accordingly, it is important to stay up to date on what the standard of care calls for in any specific setting.
Another principle that medical providers don’t seem to know when it comes to being sued is that if a decision is made by a provider based on a judgment call by the provider, then the provider wins. Medical providers are often asked to make a judgment call as to which way to proceed with respect to a particular patient. For example, if there are two different medicines available to treat a specific ailment and the provider prescribes one over another, then the provider is making a judgment call based on his training and experience. Such decisions seldom give rise to a lawsuit. In fact, if the court determines that the medical practitioner made a judgment call, the case will likely be thrown out.
Providers often worry about a patient who became sick and was hospitalized after something was or wasn’t done during a visit. I will invariably ask the provider how the patient is doing now. If the answer is that the patient suffered little or no harm, I will typically tell the provider not to worry about it.
No attorney in their right mind will accept a malpractice case unless the damages or injuries are catastrophic because the cost of litigating the case would outweigh any potential verdict.
I cannot tell you how often I have a prospective client tell me, that “the doctor misdiagnosed me”. My first question will be, “how are you today? Do you have any permanent problems stemming from the misdiagnosis?” If the answer is no, and there are no residual problems, then I turn down the case. Just because there may be a mistake, does not mean that it is worth pursuing. If it will take $85,000 to prove the case and a jury is only likely to award $25,000 in damages, there’s no lawyer who would take the case. So don’t worry about small mistakes that do not result in harm to the patient. Learn from them instead.
It is a universally accepted fact that people are less likely to sue a person they like. It is true in life and it is similarly true in my practice. In the context of reviewing a case, I sometimes learn that a client’s long time, family doctor may also be guilty of negligence as the doctor that the client wishes to sue. It is my obligation as an attorney to discuss and inform the client of their potential case against the family doctor. Frequently, the client will say that they do not wish to sue their family doctor because they have known the doctor for a long time and like the practitioner. That is fine with me and I’m sure, fine with the family doctor.
Medical providers often worry that they will lose everything because of a malpractice suit. In my experience, I can say unequivocally that the likelihood of that happening is miniscule. First and foremost, providers who work for a hospital are automatically covered under the hospital’s insurance policy. As long as the physician employed by the hospital was acting within the scope of his or her duties as an employee of the hospital, the insurance coverage will be activated to provide the physician with coverage and legal representation. That means that the physician will not be responsible for any part of a verdict.
If the provider is not an employee of a hospital, typically they will have individual coverage for themselves and for the group they practiced with. During the course of my 20-year career, I have never seen a provider pay a single penny out of his own pocket. This is because most attorneys only wish to deal with the insurance companies that insure the group of doctors and not the doctors individually. As such, if the provider’s insurance company makes an offer, the money will not come from the individual provider. It is not the intent of any lawyer I have ever encountered to take money from the individual. We recognize and respect your life’s work and don’t wish to send you to the poor house! All we seek is fair compensation for our clients. It is not our intent to bankrupt the medical provider.
Every time a story appears in the press about malpractice awards being too high, ask yourself how likely is it that the defendant will be personally liable for that verdict. Not very likely. As I said earlier, I have never seen it, nor have I heard of one of my colleagues going after the personal assets of medical provider.
In conclusion, I hope I have been successful in highlighting the fact that there are straightforward steps you can take to avoid getting sued and even if you do make a mistake and are sued, it is not the end of the world because odds are, you will win.
Nicholas Loizzi is a malpractice attorney based in Chicago.
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