What kind of advise is good for a patient before medical litigation?
Lawsuits towards the medical profession and clinicians are reaching an all time high. We can focus on a variety of variables; poor economy, inadequate care, clinicians rushing through care and becoming overwhelmed, long hours in the emergency department, and lawyers running television add after television add as soon as side effects of certain medications are founded.
The patient should understand a few basic concepts before pursuing a claim against a provider. (Please be advised, although I am in the health field, I strongly support the patient when there has been clear evidence of negligence.) I have also been called upon to provide expert testimony on medical cases when physician assistants are being sued. If I feel the case is frivolous, I do not accept the case. Some of the important basic concepts are:
1. Just because the patient may have a bad outcome does NOT equal a malpractice suit. Let me explain. Many times a fracture, a pneumonia can become worse at no direct cause by the clinician. A fracture can have a bad outcome because the patient was non-compliant with fracture care. A pneumonia can become exacerbated because all the medication was not taken, or a missed appointment. The list goes on and on. Of course some bad outcomes are due to negligence, and there may be grounds for a suit.
2.One must prove negligence, and/or a breach in standard of care. In other words was there intent to harm? There are standards of care that clinicians must abide by. If these standards of care are not followed then there can be foundation for a suit. An example, a complex fracture of the ankle called a tri-malleolar fracture which is seen in an urgent care center and NOT referred to an orthopedic surgeon. That is a clear breach of standard of care, and increases the risk of a bad outcome. I personally had a case of this nature, referred the case and the patient refused. They kept coming back and I had no choice but to tell them I could not treat them for it went beyond my ability. I documented, documented and documented as well as having nurses as witnesses. Sure enough one year later he sued me. The case was dropped because his attorney saw the notes and realized he refused follow up care.
3.Patients must realize that frequent frivolous law suits costs everyone financially. Insurance rates go up, attorneys make money, judges making money, loss time from work, the clinician loses wages, potential for a label on their license, as well as increasing health care dollars in general all the way around.
The main reason individuals sue is due to a dissatisfied patient, with extreme anger and passion, not necessarily a conscious behavior to cause harm. Yes there are negligent clinicians; however this is the gross minority. Most likely mistakes on medication, diagnoses and treatment are secondary to a high stress position, over worked, with ridiculous hours, and hence an over sight. This is NO EXCUSE, however one needs to look at all variables when seeking that dollar amount.
When looking for a lawyer, make sure they have a reputable history. they are not the “ambulance chaser type.” This holds up with more respect in the community and will benefit you in the long term. Like any profession there are good and bad lawyers. Litigation can be an ugly process, it can also be an important move if there is truly an infraction. Look closely before acting, do not let your passion and anger burn a bridge with a clinician that you may have had a great relationship with. On the other side of the law suit coin, if true negligence has occurred then you are deserving of a settlement.