Medical Errors and Litigation: Investigation and Case Preparation

medical errors and litigation investigation and case preparation. Golden Resource Book. DOC GUIDE ID ab. Golden Resource Book. Medical Errors And.
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Taylor suffered an injury that was 4 caused by Dr. The claim is seemingly that Dr. Harris did not move quickly enough to seek critical care attention for Mrs. Taylor and that the delay caused the cardiac arrest and subsequent brain damage. We use this case to plumb the broader policy perspectives of malpractice and its effect on patient safety and deterrence of errors.

Because some aspects of the litigation are still pending, we could not obtain comments from the plaintiff's attorney; however, we contribute our own thoughts about the plaintiff's likely view of the case. From the plaintiff's perspective, there are three reasons to sue the physician for malpractice. First, filing a lawsuit is a way to secure compensation for the injury 2.

Taylor no doubt has some uninsured costs associated with this injury; for example, it is highly unlikely that her health and disability insurance will provide coverage for years of rehabilitation or custodial care 3 , compensate her family for the loss of her household services, and recompense Mrs.

Taylor's and her family's suffering. Harris may provide a sense of corrective justice 4. An injured party is made whole through restitution from the injurer. Provoking feelings of remorse, shame, and guilt in the defendant is an integral part of this corrective justice.

Finally, tort litigation is meant to have a deterrence function 5. By forcing the negligent party to pay a penalty, the system creates an economic incentive to take greater precautions in the future. Presumably, being sued will cause Dr. Harris to approach acutely dyspneic patients differently in the future. Presented as such, the tort system has theoretical appeal. Regulating health care quality: Commissioned paper for the Agency for Healthcare Research and Quality; It is essentially a cost-free form of regulation for taxpayers because the regulatory vigor is provided by market incentives that direct plaintiffs' attorneys to select and bring cases.

Attorneys weigh the costs of bringing a case investigating the claim, hiring experts, and going to trial against their expected compensation usually a percentage of the award made to the plaintiff, referred to as a contingency fee 6. This attractive theoretical account of tort law's social role is challenged, however, by the available empirical evidence about how medical malpractice law actually operates. Tort law performs its compensation function relatively poorly because most patients injured by negligence do not bring malpractice claims The differences are stark: With respect to corrective justice, the malpractice system does induce negative emotions in sued physicians 11 , but it rarely inspires genuine remorse or feelings that justice has been done.

Rather, most defendants find little merit in the suits brought against them and feel that they are the victims of a random event 12, The deterrence function of malpractice litigation also seems unavailing Studies of the relationship between lawsuits and subsequent quality of care have largely centered on obstetrics. Most studies have failed to correlate variations in care patterns or birth outcomes with the obstetrician's history of malpractice claims The single broad study of hospital adverse events reported limited evidence that a greater number and severity of malpractice claims was associated with improvement in medical injury rates Even defensive-medicine effects, that is, promoting higher-than-optimal levels of taking precautions, have not been conclusively reported 14, Anecdotal evidence suggests that in periods of tort crisis, fear of being sued and the unaffordability or unavailability of liability insurance may have a different deterrent effect: It may deter physicians from remaining in practice or continuing to perform high-risk services 20, Such effects, if they become widespread, affect patient access to care.

Thus, much of the plaintiff's view of malpractice litigation is controversial. From the facts of Mrs. Taylor's case, most readers probably have concluded that there is little evidence of negligence on the part of Dr. Within 40 minutes of the evaluation, Dr. Harris had moved Mrs.


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Taylor to the care of an expert in the ICU. Since this action plan was within the standard of care expected of a reasonable practitioner, the malpractice suit seems unfair. The sense of unfairness is compounded by the fact that the lawsuit blames the individual physician. This event clearly occurred in several layers of the system: Harris picks up the care in the morning from another physician; the emergency response and admission to the ICU; and the issue of emergency intubation on the floor. It seems unreasonable to blame Dr. Harris, given the possible contributory role of these systemic factors.

Plaintiffs' attorneys routinely sue several individuals, as well as the hospital. They may not believe that all individuals are liable, but they hope that some will offer at least a small settlement to avoid the nuisance aspects of the suit and the risk for a larger jury award. These settlements enable the plaintiff's attorney to fund further litigation against other defendants in the suit. Dean, the defense attorney, is savvy about the respective roles of patient injury and negligence in initiating and settling a malpractice claim:.

Dean makes the important point that the degree of injury is critical to the outcome of the case. His contention is supported by empirical evidence from the Harvard Medical Practice Study, which examined rates of hospital adverse events, negligence, and malpractice claims in New York 7, Negligence was determined by physician reviewers unaffiliated with the sued providers' insurance companies. The investigators followed the malpractice claims for 10 years and determined that the only statistically significant predictor of a payout to the plaintiff was the plaintiff's degree of disabilitynot the presence of negligence Other studies have suggested that negligence does influence the size of settlements 24, 25 , but these analyses have been based on insurance claims adjusters' determinations of negligence rather than independent judgments.

If the main factor determining compensation is injury severity or disability even in a system that ostensibly revolves around a negligence determination, then one must ask why we cling to the tort model of compensation for medical injury.

After a long pretrial period of fact-finding discovery , expert witness reviews, and depositions, Mr. Dean felt that his client's case was very strong. Taylor's horrendous adverse outcome and concerns unrelated to Dr. Harris's care about her care by the hospital and other providers led Mr.

Dean to recommend that Dr. Harris offer to settle the case for a relatively small amount of money. In explaining the decision to settle, Mr. Dean weighed three factors. First, if a jury found his client negligent, what would the plaintiff's damages probably amount to, both in economic and noneconomic pain and suffering terms? Second, how likely is a jury to find in favor of the physician? Third, what is his gut instinct about the case's worth?

His judgment incorporates subjective factors, such as the likely composition and liberality of the jury in a given venue and sympathetic or unsympathetic characteristics of the plaintiff, her injury, and her circumstances. One would not blame Dr. Harris for feeling that the outcome of her case is unfair. Yet it is perfectly in accord with empirical research on litigation outcomes and with attorneys' strategic decisions as they function within an imperfect tort system. Harris, settlement is the most rational choice in a system that could produce an utterly calamitous outcome. Those persons directly involved in this litigationDr.

Taylor, and their families and attorneysfeel the greatest effect of the malpractice system's shortcomings. However, these failings also have strong implications for the nascent patient safety movement. The traditional rule in the common law is that all available probative evidence evidence that proves a fact should be admitted to the court for consideration But legislators have long recognized that peer reviewers would be chilled if they knew that their review would be available to a plaintiff and to his or her attorney; thus, they have granted a privilege of nondiscoverability to peer review information, which courts generally have enforced The breadth of the privilege varies from state to state 28 , but generally, hospitals must confine discussions about adverse events to small committees of insiders to retain the privilege.

The need to minimize legal exposure leads them to eschew more public debate about quality issues. In the Harris case, it seems that it would have been beneficial for the hospital and staff to have openly evaluated issues of seamless cross-coverage, protocols for emergent intubation on the floor, and timely transfer to the ICU. Unfortunately, it appears that nothing of this sort occurred.

The hospital cannot necessarily be blamed for failing to follow up. Perhaps the hospital concluded after an initial evaluation that there were few grounds for quality improvement. More likely, the hospital realized the extent of the resources necessary to complete a formal peer review process and decided it was not worth the effort.

Harris's ignorance of the formal mechanics of peer review at her hospital, and its essentially hidden nature, demonstrate the tension between error prevention or quality improvement and medical malpractice. Fear of litigation either stifles injury reduction efforts or drives efforts underground. The Institute of Medicine's report on medical errors 29 has fomented a critical change in attitude about patient safety activism. Many risk management offices a euphemism that obscures whether the risk is for a medical injury or for a successful malpractice claim are now becoming patient safety offices or are partnering with newly created, separate patient safety offices.

The use of careful root-cause analysis is becoming prevalent at the departmental level in many institutions Yet malpractice fears continue to retard these salutary efforts, and many hospitals still approach error-related injuries the way Dr. These apprehensions not only chill educational discussion but also exert profound pressure against initiatives to disclose adverse events to both patients and governmental reporting systems.

We 31 and others 32 have long advocated greater transparency about medical errors. Codes of professional ethics, as well as the new patient safety standards promulgated by the Joint Commission on Accreditation of Healthcare Organizations 33 , support an obligation of disclosure to patients. The enormous potential for learning about errors through epidemiologic analysis argues persuasively for reporting to centralized data collection systems.

However, providers reasonably fear that greater transparency will tremendously increase the number of successful malpractice claims, with concomitant increases in malpractice premiums and decreases in the availability of insurance. Advocates of reporting counter that honesty may actually decrease physicians' malpractice risk Physicians who have poor relationships with patients are the ones who get sued, and what patients really want is to be dealt with forthrightly 35, The sole piece of published evidence on this issue is methodologically weak and comes from the Veterans Administration system, in which the physicians cannot be sued and institutional liability is limited Researchers have yet to disprove providers' suppositions that greater disclosure will lead to more requests for compensation.

Legislation to protect centralized error reporting from legal discovery can help, but not all states have adopted such protections Even in states that guarantee confidentiality, the continued public and media attention to medical errorswhich provides valuable impetus and momentum for patient safety initiativesmay make injured patients more disposed to file claims.

The tensions between the tort system and patient safety demand that we reexamine our attachment to adversarial dispute resolution in health care. The options boil down to three paths. First, we can maintain the status quo and simultaneously push the safety agenda harder. It is possible that appeals to physicians' ethical commitments to patient welfare 39 and the demonstrated successes of industry-based models of systemic quality improvement may gradually yield buy-in to safety initiatives.

We have our doubts, however. The conflicts between the tort system and error reduction programs are fundamental and severe, and physicians' concerns about being sued and losing their liability insurance have reached a fever pitch. Appeals to professionalism may ring hollow with physicians operating under a siege mentality. A second option is to take legislative steps to curb the frequency and economic effect of malpractice litigation.

During past tort crises, providers successfully lobbied state legislatures to change litigation rules to make them less favorable to plaintiffs Tort reform aims to decrease the expected value of a case for plaintiffs' attorneys, changing the calculus about when it is worthwhile to bring a claim. Among the most efficacious reforms are caps on noneconomic damages; changes in the amount that attorneys may take as contingency fees; reductions in the length of time that injured patients have to bring a claim; and elimination of the collateral source rule, which allows plaintiffs to recover medical expenses and other costs even if these have been covered by insurance Today we are in the throes of new tort crisis, with claims rates and average payouts rising in many states, especially those that did not institute tort reform in previous crises The concurrence of the tort crisis and the attention to medical errors has not gone unnoticed by insurers.

Lobbying for tort reform at both the state and federal levels is under way The tort reform strategy is problematic, not the least because of its contentiousness. Many state legislatures cannot pass meaningful reform because of the competitive gridlock interposed by health care providers and trial lawyers. Moreover, traditional tort reforms aim to reduce providers' economic exposure, not create a more efficient system. The system's fundamental flaw is not simply that it costs health care providers too much but that it tends to overcompensate some patients while undercompensating others 8, Reform should strive to do more, and we believe a no-fault approach is the answer.

In a no-fault system, the injured patient would only have to demonstrate that a disability was caused by medical management as opposed to the disease process: There is no need to prove negligence. This approach comports better with the patient safety movement. Modern notions of error prevention, emphasizing evidence-based analysis of systems of care 29 and application of technological and structural methods to foster prevention 50 , find little value in assessing individual moral blame.

No-fault compensation for avoidable injuries is far better suited to support error prevention than a system that revolves around culpability determinations. We believe that such an approach could produce important incentives for prevention, the so-called deterrent effect, if risk were aggregated in institutions and medical groups. Experience-rating individual physicians' insurance premiums has not been actuarially feasible because physicians are sued too infrequently and their claims experience fluctuates too radically from year to year However, hospitals and integrated medical groups have a more consistent risk profile and their premiums can be experience-rated.

An even better approach may be to set up so-called channeling programs, in which hospitals and their medical staffs are insured by the same entity and all efforts to prevent medical errors are undertaken jointly. Some medical school and academic medical centers already use a channeling approach, and, as links grow between hospitals and integrated medical groups, the potential for a substantial amount of the health care system to operate under channeling approaches increases.

In a channeled program, the foundation for greater safety is established by integrating the physician and hospitals or health care centers. The enterprise bears the liability for injury and has incentives to address prevention of errors in both inpatient and ambulatory settings. We have also noted that in practice, compensation in the current tort system turns on severity of injury more than negligenceso why maintain a system focused on determining negligence?

It is expensive and administratively cumbersome to make these determinations, as it involves an adversarial battle of the experts. Moreover, even negligence judgments by financially disinterested expert reviewers are notoriously unreliable In the context of a vigorously adversarial system, the focus on negligence also incites emotion-provoking behavior by litigants.

Not only does this leave lasting psychological scars on persons involved, it pollutes what otherwise might be a useful exercise in root-cause analysis leading to quality improvements Finally, good data suggest that the no-fault approach would be less costly administratively. Similar no-fault programs in Workers' Compensation and vaccine liability operate at less than half of the costs of tort litigation, largely by minimizing the role of the lawyers. This is where politics will play an important role: Lawyers will fight to maintain the present system.

Elsewhere we have described a limited no-fault approach to medical injury compensation that could work on an elective basis [14]. We believe that no-fault compensation can 1 promote greater transparency about adverse events, 2 partner with a hospital-based, experience-rated insurance system that does not remove incentives for error prevention, and 3 lead to more equitable and efficient compensation Table. There are people who doubt no-fault proposals; they highlight the historical absence of effective self-policing, the possibility that the present malpractice system has improved safety by promoting vigilance and better documentation, and the uninspiring example of other no-fault systems, such as Workers' Compensation Dean's view of the matter reflects the prevailing uncertainty about its probable outcomes:.

We acknowledge this uncertainty, but believe the proposal is worthy of experimentation. The Harris case illustrates how difficult it is to move forward with an error prevention agenda in a heated malpractice environment. It is not surprising that providers are reluctant to buy in.

Patients deserve innovative approaches that will reduce their chances of being injured by errors and lead to fair compensation if an avoidable injury occurs; providers deserve an environment in which participating in patient safety and compensation initiatives does not put them at risk for financial and professional ruin.

Legislative intrusions into the common law of medical malpractice: Relation between malpractice claims and adverse events due to negligence. A Measure of Malpractice: Reality in the economic analysis of tort law: Harvard Medical Practice Study Investigators. Patients, Doctors, and Lawyers: The relationship between malpractice claims history and subsequent obstetric care. Effects of the threat of medical malpractice litigation and other factors on birth outcomes. Office of Technology Assessment. Insurance-squeezed doctors fold their tents. Physicians fold under malpractice fee burden.

Incidence of adverse events and negligence in hospitalized patients. Relation between negligent adverse events and the outcomes of medical-malpractice litigation. The influence of standard of care and severity of injury on the resolution of medical malpractice claims. Federal Rule of Evidence Confidentiality and privilege of peer review information: To tell the truth: Joint Commission on Accreditation of Healthcare Organizations. Facts About Patient Safety. The relationship with malpractice claims among primary care physicians and surgeons.

National Academy for State Health Policy. State responses to the problem of medical errors: Medical professionalism in the new millennium: Legislation on medical malpractice: And then the majority of the discovery process involves taking depositions. Depositions are simply asking questions, and the plaintiff or the doctor answers them under oath and then this can be used at trial as a way of pinning down testimony.

Normally in a medical malpractice case, the plaintiff will give a deposition and then the defendant doctor will give a deposition. Then other fact witnesses will give depositions, perhaps nurses or respiratory therapists. After those depositions are done, the defense or even the plaintiff may want to take the depositions of those treating physicians, physicians who have treated after the malpractice has occurred. The last type of deposition that is taken involves the experts.

The plaintiff's experts will give depositions. The plaintiff's attorney will take the depositions of the defense experts. And it's not unusual in a medical malpractice case for there to be dozens of depositions that are taken. I mean, I have had cases where we have had close to depositions taken in a medical malpractice case.

It takes time and a lot of depositions are part of a medical malpractice case. The short answer is no. That's definitely the exception rather than the rule. I think I can count on one hand the number of times that has happened in the 20 years that I have been practicing. Medical malpractice cases are usually filed.

They are aggressively defended and they are litigated for many years. Some of it depends on where you file the case. Some court jurisdictions are more crowded than others. I remember many years ago filing a case downstate in a county and it was the fourth lawsuit filed in that county that year and we filed it in October. Now, if you were to file a medical malpractice case in Cook County in October, there could have been thousands of medical malpractice cases filed before October.

So, it depends on where you file the case and a lot of it also depends on the complexity of the case. Some cases truly will involve one plaintiff, one doctor and maybe very little subsequent treatment. Other cases are very complex and there may be a number of defendant doctors that caused or contributed to the injury. And the injury may be very severe and a lot of discovery will need to surround the severity, nature and extent of the plaintiff's injury.

In general, I would say a good rule of thumb is two to five years. Some take longer than that. But two to five years I think is a reasonable estimate. Whether a case goes to trial or not is variable. My experience has been that most of these cases ultimately do settle because we do a good review before we file them and hopefully they are meritorious when we file them or we wouldn't be filing them. However, if they do settle, they usually do not settle early. They oftentimes settle right as you are walking in the courtroom door for trial. Every case has to be prepared as if it is going to trial.

You can never assume that a case will settle. One of the reasons that cases don't settle in medical malpractice, it's a little bit different than in other areas of the law. In a lot of medical malpractice cases, the doctor has the right to consent to settle the case or not. Now that's different than in an auto case. Now if you have an auto Accident, your insurance company can settle the case without your knowledge or consent. Doctors usually have the right to consent and some doctors feel very strongly that they did nothing wrong.

Insurance companies also get involved. So an insurance company may decide to defend a case even if the doctor wants the case to be settled. Oftentimes, these cases are complex with multiple defendants and there may be fighting as to who is responsible and who is going to pay what.

And that will drive a case to trial. The length of a trial is also variable. It depends of the complexity of the case and the number of witnesses. Cases can go from one week to many months. Most cases in my experience are two to four weeks just for a general medical malpractice case. The majority of cases in Cook County that actually go to trial are won by doctors and hospitals.

I think the statistic is 70 percent to 80 percent that are won at trial by healthcare providers. And you may ask why has that happened? I think people want to trust their doctors and they have respect for doctors and hospitals. So it's very hard sometimes for a jury to find a healthcare provider responsible for malpractice. Some of these cases are so complex that it may be difficult for a jury to understand the medicine and the issues. They say, how can I criticize a doctor if I don't understand it and a good defense attorney is going to make it seem very, very, very difficult, and it's our job as the plaintiff's attorney to make the case and medicine as simple as possible.

And I think there is also an undercurrent. You have probably heard about Tort Reform. There is some feeling out there among people that perhaps there are too many frivolous lawsuits. That we are driving doctors out of the practice of medicine and that medical malpractice suits raise the cost of everyone's healthcare. Now, if we have time, I could tell you that none of those things are true in my opinion. But there are those beliefs out there that are held by some people. That's a good question. Medical malpractice is a very distinct and specialized type of law.

You want to choose an experienced medical malpractice attorney — an attorney who deals with these types of cases and who has handled these cases in the past. Most law firms now have websites and you can go to the website of the law firm and see a record of the types of cases they have handled. I think you also want an attorney who has trial experience, an attorney who has taken many malpractice cases to trial.

If your case goes to trial, you want the best shot of winning and your best shot is with an experienced trial attorney. You also want to choose a law firm that has the manpower and financial resources to prosecute your case. You want more than one attorney working on the case so if a deposition is scheduled on Monday and if the partner on the case can't do it, there can be another partner and associate who can step right in to do that deposition to keep the case moving.

We have not talked about it in great detail, but these cases can be extremely expensive to prosecute. The cost of litigation in a medical malpractice can be in the tens of thousands of dollars. You want a firm that is going to be able to advance those costs so they can hire the very best expert for your case.

So they can afford the demonstrative exhibits at trial that will teach and educate the jury about your case. I think most importantly you want an attorney who cares.

Medical Malpractice Attorney FAQ

An attorney who cares not just about your case, but about you as a person. When you meet that attorney, are they responsive to you? Are they listening to you? Are they putting you at ease?

An overview of each stage in a typical medical malpractice lawsuit.

Do you feel comfortable? So the bottom line is you want a competent, hard-working, caring attorney to handle your case. Very carefully, and in a very detailed and organized manner. Usually, a client will call and there will be some initial questions asked over the phone. When did it happen? Most clients then will be instructed to get a copy of their medical records and they send the records to us for review. We will review the medical records.

We may do some medical research, some literature searches to research the particular topic and then a meeting is set up with the client and at that meeting we want to go into detail about what happened. We might want to talk to the client about their health history to see if they've had any similar problems. We might get some authorizations signed to get other related medical records. We might ask them to write a written summary about what happened with their case. The medical records sometimes only tell half the story. There is a lot that may be missing so sometimes we ask the client, "give us your side in writing.

After the client meeting, we will obtain additional records. We may obtain films, pathology slides. We will then do a review in-house of all of this relevant information and if you are with an attorney who does a lot of this, they will have a pretty good idea if there is something here that merits going forward with the case. The next step, which is unique to medical malpractice cases, is sending the case out to an expert for review to find out if it has merit.

And oftentimes in the cases, it may be multiple experts that will need to review the records. Going back to our example of a breast cancer case. You may need to send the records to an internist who initially examined the lump for review. If a mammogram was done, you may have to send those records and films to a radiologist to see if the film was interpreted correctly. You may need to send those records to an oncologist who is going to determine what difference that delay in diagnosis made. So, there may be multiple expert reviews that are needed before a case can be filed.

That's why it's important to consult a medical malpractice attorney as soon as possible after you suspect malpractice because an investigation may take several months. You have a limited period of time to file a medical malpractice suit. This time limit is called the statute of limitations. And this will vary by state and it will also vary based on the specific facts of the case. There are some facts that can extend the statute of limitations. In general, in Illinois, a medical malpractice action must be filed within two years of the negligent act. There are exceptions to that.

Some suits may need to be filed sooner and some later.

Professional Malpractice

In Illinois, the statute of limitations may be extended beyond two years by something called the Discovery Rule. In other words, you have two years to file a lawsuit from the time you knew or should have known that you had an injury and that it was negligently caused. But even with that discovery rule, you cannot file a lawsuit more than four years from the negligent act.

This is called the Statute of Repose. Now there may be exceptions to that, too. Going back to the example of a baby. If a baby is injured in birth, in Illinois, the parents would have eight years to file a lawsuit from the date of birth generally. If a person is disabled because of the negligence, the statute may be tolled, so it can be filed basically at any time while the disability continues.

As you can see, determining when the statute of limitation runs can be very complex as a legal question and a very fact specific question. And the only way to truly know is to consult an attorney who concentrates their practice in this area. In Illinois, it's filed in the county of resident of any defendant or in the county where the malpractice or some part of it occurred. So let me give you an example. If malpractice occurs at a hospital in Kane County and the physician who committed the malpractice lives in Cook County and you sue both that hospital and that physician, you can file the case in either county then and you would be proper in either place.

But the hospital may come in then and argue that Kane County is a more convenient forum and they would file a motion under a doctrine of law called Forum Non-Conveniens. And what that means is that the hospital is acknowledging that Cook County is a proper venue if you filed your case in Cook County, but Kane County would be more convenient. And then a court would balance various public and private interest factors to decide where the case would go.

But as a general rule of thumb, it's usually in the place where the malpractice occurred. A thorough investigation and a positive review from a good expert. You need to know if you are the attorney filing this suit that you have all of the pertinent records. You need to make sure you are filing it in the right place and time. You have to make sure that you are naming all the necessary parties and their corporations. In that example with the breast cancer, if you were to file the case against the internist and not have had that mammogram reviewed, and the radiologist misread the mammogram, and you didn't sue the radiologist, that could be a big problem because the internist could point to that empty chair and say, "but for that radiologist reviewing the film wrong, you know, I wouldn't be here.

It's actually the radiologists problem. You want to make sure you can prove all of those elements, the duty, the breach, the proximate cause and the damages. You want to have your experts lined up to testify. In Illinois, there is a special requirement that's a statute. In the Illinois Court of Civil Procedure, Section , that requires you to actually have a physician's report. And in this physician's report, your reviewing consultant has to say that there is a reasonable and meritorious reason for filing the case, that he has reviewed the medical records and this is how the defendant doctor deviated from the standard of care and caused an injury.

And that physician's report actually has to be attached to the complaint that you file with the court. And an attorney also has to file an affidavit saying that they consulted with a qualified expert. So it's an additional step that is required in a medical malpractice case to have this report, that would not be required in an automobile Accident case.

Medical malpractice cases can be very costly to prosecute. We are talking tens of thousands of dollars. And the attorney will pay these costs and be reimbursed at the end of the lawsuit if we are successful. But the biggest cost I think in any medical malpractice case is expert witnesses. So you can see if you have five of six experts on a case how the costs can go up very rapidly and you need these experts to prove your case.

Records, duplication of records can get expensive in these cases. And depositions can get expensive. Every time a deposition is taken, the transcript is typed up by the court reporter and there is a cost associated with that. So that is cost. The other element is attorneys' fees. In January, , a new law was signed by the Governor in Illinois that caps attorneys' fees at one third. There is no statutory requirement in Illinois for a doctor to carry malpractice insurance and it's not tied to licensure as you might expect. I know that my Dad recently renewed his driver's license and he has to show evidence of insurance when he did that.

Not so with medical malpractice. But in actuality, almost all doctors do carry malpractice insurance.


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And it's a requirement usually to get staff privileges at a hospital. A hospital will make sure they have medical malpractice insurance and it's not a concern if you go to some of the larger healthcare institutions that actually employ the doctors because hospitals to carry ample insurance. It's a very good question and it is a very real phenomenon out there. Often times, physicians who will review records as an expert will be happy to review the records and help us behind the scenes, but when it comes to giving an opinion in public or taking the stand at trial, they don't want to do that.

Or, we may have a client that comes to us and they will tell us that their new doctor is very critical of their old doctor and will help their case. They may actually tell the client, go see a lawyer. But then when we contact them, it's a different story. Or in a deposition, they clam up. I think it's very hard for a doctor to testify against a colleague. They might see this doctor three weeks from now at a professional meeting, and it could be very uncomfortable and very difficult. And it could affect referral patterns. Many doctors depend on referrals for their patient populations.

So they don't want to do something that could harm their business. And some doctors have actually been criticized or persecuted by other members of their profession for being an expert witness. So this conspiracy of silence is simply doctors refusing to publicly point out the negligence of another doctor.

It's difficult for a doctor to get up there and say that another colleague has committed malpractice and that's why we are grateful for the courageous doctors that will do that on behalf of our clients. That's a very good question. I think the most important advice that I could give was that you have to be an involved and savvy healthcare consumer. You have to be an active member of the healthcare team.

Do research, get on the internet and research a potential physician you are going to see. Most physicians have privileges at hospitals.

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You can get on a hospital website and learn about the doctor's training and experience, where he has practiced before. The internet, I think has changed what a patient can do now before going for healthcare. I encourage you to get on the internet, on Google. It doesn't have to be complex medical research. Google is wonderful; Wikipedia is great. It will give you an idea of what your disease is about and what the treatment is.

Another thing that you can do is determine if your doctor is board certified.

4 REASONS Why Hospital Doesn't Want to Settle Your MEDICAL MALPRACTICE Case Here in New York

After training, a doctor can go on and take an additional examination that recognizes special competency in an area. For example, a doctor can be board certified in obstetrics and gynecology and they have to sit through a special exam. Now they are not required to be board certified, but that is an indication that they have special competency and expertise. I again, would encourage your listeners to be very active participants in their healthcare and if they do feel that there has been malpractice in their treatment, contact a professional and have their case reviewed.

Our dedication and hard work have led to many favorable outcomes over the past 30 years. Disclaimer Site Map Email Filedrop. We asked Susan to answer your medical malpractice attorney FAQs: What is medical malpractice? What do I need to prove to be successful in a medical malpractice case? Should I consider a medical malpractice lawsuit if I have had a bad result? How do I know if I have been the victim of a medical malpractice and to proceed in contacting a medical malpractice attorney?

What are some examples of medical malpractice? If I think I have been a victim of medical malpractice, what should I do? Do medical malpractice lawyers need a document of times and places of conversations? Is it a good idea to know when I saw a doctor and have my medical records on hand?