Medical Malpractice: What Does and Does Not Legally Constitute Medical Malpractice

Welcome to Legal Squeaks, I’m Dennis VanDerGinst, and before we get started, I’d like to ask you all to please subscribe to Legal Squeaks, rate and review it, if you haven’t already done so.

Today, I’m going to talk to you a bit about medical malpractice. Medical malpractice occurs when a hospital, doctor, or other health care professional through either a negligent act or an omission, causes an injury to a patient.

The negligent, negligence might be the result of errors in diagnosis, treatment after care, or health management. So essentially what that means is someone was injured by the treatment provider’s negligence. It can arise from the negligence of just about any type of treatment provider, including medical doctors, nurses, chiropractors, physical therapists, etc..

And I want to state at the onset that I truly believe that most medical professionals are competent, caring, compassionate and diligent, but anyone can make mistakes. And unfortunately, when it’s a medical professional making the mistake, the outcome can obviously be devastating. And that’s why they, like other professionals, are held to a higher standard, standard of care with respect to their treatment of patients.

Now, there’s a lot of confusion and debate over how much malpractice actually occurs in our health system. A John Hopkins study from a few years ago claimed that in the United States, more than 250,000 people die each year from medical errors, which would make it the third leading cause of death behind cancer and cardiovascular disease.

Other reports claim that that number is low because death certificates, which are what the CDC relies on when compiling statistics, usually only note system failures. The system failures are what caused the death, but they don’t note the human errors involved in causing those system failures. Therefore, that report argues that the correct number is likely more than 440,000 deaths per year. But to be fair, there are also compelling reports and arguments that suggest that these reports are skewed and alarmist and that the actual figures may be a lot less, perhaps less than 100,000 a year.

In addition to fatality figures, there are reports that more than a million patients per year may be injured by medical negligence. Nobody knows for sure exactly how many people are injured or die due to medical malpractice because there has never been an actual count of the number of patients who experienced preventable harm.

This leaves us with estimates like these, which are imperfect. There’s too many inaccuracies in medical records and some providers are obviously reluctant to report their mistakes. But while the exact numbers will never be known due to some cases not being reported and other variables, the estimates clearly indicate a serious problem in the American health system.

Yet whatever the actual and accurate numbers may be, only between 14,000 and 17,000 medical malpractice lawsuits are filed in the United States each year. Why is this?

Well, there are a number of reasons. First of all, patients are often reluctant to bring the claims because first of all, they may not even realize that there’s been a medical error. Sometimes bad things happen and you don’t know as a patient whether it had to do with something somebody failed to do or something somebody did wrong or if it’s simply one of the inherent risks in a procedure or treatment. So a lot of times they go unrecognized by the patients.

The other reason that patients sometimes are reluctant to bring claims is what I call the angel of mercy considerations. Medical providers are usually good and caring people and patients will often overlook the mistakes, especially if the mistakes don’t result in serious injury or death.

And the third reason is what I refer to as claim shame. And if you don’t know what claim shame is, I’ll refer you to one of our other podcasts which discusses that in, in great detail. But basically what that means is that sometimes patients are conditioned to feel embarrassed about bringing claims even when they have legitimate concerns.

Another reason why these cases don’t get filed, perhaps as often as they should, is because attorneys are reluctant to bring medical malpractice lawsuits for a few reasons.

First of all, they’re expensive. And secondly, they’re difficult to win. With respect to expense, some states actually require that a review panel or tribunal of sorts must prescreen malpractice cases before they’re even given the go ahead to file a lawsuit.

Other states require that a certificate of merit be filed, with the lawsuit indicating that other experts have reviewed, you know, the circumstances surrounding the alleged malpractice and that they’ve concluded that there’s merit now in those situations. You know, the the attorney on behalf of the patient or plaintiff has is being required to spend thousands and even tens of thousands of dollars on experts to get the case reviewed before they can even file the lawsuit in assuming that the case can be filed.

It’s not unusual to spend tens or even hundreds of thousands of dollars for the experts necessary to make the case on behalf of a client during litigation. So, you know, obviously, in all instances, the plaintiff has the burden of showing that there’s been a digression from the acceptable standard of care and that that negligence was the cause or a contributing factor toward the complaint of injury, illness or death. And then they also have to show what those damages would be.

All of the evidence showing the digression, showing that that digression caused the injury, illness or death and what the damages should be. All of that is typically going to be presented by very costly experts. So, again, pursuing those cases can be very expensive. You couple that with the fact that these cases are difficult to win and that really makes sense as to why these cases are not probably filed as frequently as they could be.

There are very few treatment providers that are going to acknowledge that they’ve made a mistake. They know that medical textbooks can list a lot of different ways to treat a specific injury, illness or disease. So a lawyer representing a complainant is often going to be stuck with nothing more to rely on than a doctor’s own notes, which obviously can be very self-serving. And the law recognizes the practice of medicine more as an art than a science. So what’s considered a digression from the standard of care is often an interpretation by competing experts over what a reasonably competent practitioner would do when presented with similar circumstances.

On the one hand, you’re going to have the plaintiff’s experts saying it is a digression, and on the other hand, you’re going to have an equal number or a greater number of defense experts saying it wasn’t a digression. So when juries hear competing testimony as to what the standard of care may be, and different interpretations as to whether what was done or not done was correct or incorrect, they’re often going to be sympathetic to treatment providers and find in their favor because juries understand that the practice of medicine is hard.

And, you know, often there’s no one right way to do something. They realize that most doctors try their best and that, you know, not every patient is going to end up with a good outcome. So unless the doctor made an obvious mistake, like leaving an instrument inside a patient after a surgical procedure, juries are often going to give the doctor the benefit of the doubt.

In fact, some studies report that physicians, win 80 to 90 percent of the jury trials that have weak evidence of medical negligence. They win approximately 70 percent of the borderline cases, and they even win 50 percent of the trials in cases that have strong evidence of medical negligence.

Also, another factor, unlike other injury related lawsuits, medical malpractice cases often do require litigation. Now, some of those cases may settle before trial, but they still end up costing a lot of money and taking a lot of time and risk that attorneys need not be concerned about in, say, you know, a car accident case.

And the reason for that is in a car accident case, for example, if someone claims that I was at fault and caused injury, well, it’s going to be my insurance carrier who’s going to decide whether they want to settle the case, regardless of whether I agree or not. So I can be vehemently opposed and say it wasn’t my fault. Or I can argue that the plaintiff in that case was not that damaged. And I don’t want my insurance rates to go up, and I don’t want it to be paid.

It doesn’t matter. I have no say in the matter. If my insurance company wants to settle that case, they’re going to settle the case. But with medical malpractice and other professional malpractice claims, the malpractice insurance coverage often has what’s referred to as a consent to settle clause, meaning that the doctor or whatever treatment provider it is, has to consent for their insurance carrier to settle the case with the patient, or the patient who’s complaining of malpractice that is. Now, if the doctor doesn’t consent or the treatment provider doesn’t consent, then that insurance carrier has to go through the legal process, including litigation, if necessary.

Sometimes insurance carriers can exert pressure to eventually allow or force a settlement. But by that time, the patient/plaintiff may have been forced to spend a lot of time and money to get to that, to that state in the case. So, doctor, you know, one of the reasons that doctors and treatment providers withhold the consent even and clear liability situations because they’re they’re going to be adversely impacted, whether they settle the case or allow it to go to trial and get an adverse jury verdict.

And they’re, the impact on them is going to be, in numerous ways. First of all, their professional integrity is going to be questioned, which means the possibility of losing patients. Any time there’s a whisper that a doctor has a pending or has lost a malpractice case, it’s going to impact their their patient load. Additionally, if they allow a settlement to occur, they may still be reported to the National Practitioner Databank, which may mean that their licensing, credentialing and or hospital privileges can be suspended, revoked or otherwise hampered. Obviously their insurance premiums may also be impacted.

So for that reason, as I said, a lot of times, you have to anticipate that they may withhold consent and that’s going to force attorneys and malpractice patients to be prepared to file litigation and possibly go to trial, which again, is going to mean exposure to risk as far as the cost of pursuing the case.

In addition, some states limit the attorney fees in medical malpractice cases, which makes them less appealing given the risk that the attorneys are taking, because most attorneys will front those costs and of course, their time, they are usually working on a contingent fee. So when the fee is limited, it’s not going to be that appealing to a lot of attorneys.

In addition, some states also limit the amount of damages a plaintiff can be awarded. Typically, we’re talking about non-economic damages like pain and suffering, but that can drastically reduce the amount of a potential jury award, meaning that sometimes the risks may not be offset by the potential outcome, making them even less attractive to both attorneys and, and the clients who have alleged malpractice.

But even with those considerations in mind, it’s clear that malpractice does occur and victims can recover compensation for their damages. There’s, there’s simply a lot of considerations that you have to go through. So I also want to make sure that you understand that bad outcomes can still result from good care. Procedures and treatments often have risks of potentially bad outcomes, even when everything is done within the standard of care. So not every bad outcome is going to result in a viable claim for malpractice. Many adverse events are not preventable and do not imply medical errors or substandard medical care.

Moreover, determining whether a given medical error directly caused or contributed to a death or an injury is not straightforward, in most cases. It can be very complicated. If you have a case, the most common types of malpractice complaints fall into three categories.

First of all, failure to diagnose. So a medical professional is alleged to have failed to diagnose an existing medical condition or has provided an incorrect diagnosis for the patient’s medical condition.

The second is negligent treatment, where a medical professional is alleged to have made a mistake that reasonably competent professionals in the same position would not have made. That means the digression from the acceptable standard of care.

Another way is a failure to warn. A medical professional is alleged to have a treat, In this situation, a medical professional is alleged to have treated the patient without warning the patient of the known risks and then obtaining the patient’s informed consent to that course of treatment.

In other words, every patient has a right to know what they’re getting themselves into. And if they are not alerted to what those risks are and they’re not given an opportunity to sign off on those risks, and then one of those risks come to fruition, they may have a viable complaint for failure to obtain informed consent.

Some common examples of malpractice allegations include, as you mentioned, misdiagnosis or failure to diagnose, unnecessary or incorrect surgeries, which that that does occur, premature discharged from a hospital or other treatment. So, for instance, if a patient, they perhaps misread or, misread the notes, the discharge notes or orders from a doctor and a patient is let go before they probably should have been, that can be the cause or the underlying basis for a cause of action for malpractice.

Failure to order appropriate tests or to act on the results from those tests. You know, the lack of follow up in general is always a potential basis for malpractice. Prescribing the wrong dosage or the wrong medication. Leaving things inside a patient’s body after surgery. And by that, what we’re referring to often are sponges and or instruments. It happens much more frequently than, than you might suspect.

Additionally, another thing that happens frequently is operating on the wrong part of the body. Obviously, that could be a very clear instance of medical malpractice.

Potentially fatal infections are sometimes acquired while in the hospital. Pressor ulcers or bedsores or failure to to properly, properly shift or move a patient can also occur. Those are other common areas of medical malpractice or at least potential medical malpractice.

So in all of these scenarios, the plaintiff, who is the patient, is going to have the burden of proving all the elements of negligence for a successful medical malpractice claim.

So that would include showing that there was a duty owed. That’s easy because a legal duty exists whenever a hospital or health care provider undertakes care for care or treatment for a patient. The second element is that you have to show that the duty was breached. In other words, that the provider failed to conform to the relevant standard of care. And this is where it gets a little hairy, as I mentioned. Thirdly, you have to show that that breach of that duty is what caused or contributed to an injury.

Now, the breach of duty, there’s a term of art called a proximate cause of the injury. And sometimes when a, you know, a provider can do something wrong, but what they did wrong wasn’t necessarily what caused the illness or injury that’s complained of. And that’s an important distinction. You have to show that it was a proximate cause of the illness or injury complained of. You have to show that there’s been a deviation or a digression from that acceptable standard of care.

It has to be shown that the practitioner was acting in a manner that was contrary to the generally accepted standard of care in his or her profession. And you also have to show the damages, because without damages, and of course losses can be financial or emotional, but without them there’s no basis for the claim, regardless of whether you show that the provider was negligent.

You know, in other words, you can show that a provider did something wrong, but if you didn’t incur damages, pain and suffering, medical expenses, lost income, things of that nature, then there’s no case.

So given the risks and the complications inherent with medical malpractice cases, anyone who’s facing complicated treatment should do what they can to minimize those risks and or to accumulate relevant information during treatment so that if you’re going to, you know, consider pursuing a malpractice case, perhaps you’ve, you’ve garnered some of the information in the ammunition you need in order to proceed.

So, be sure when you’re undergoing some kind of complex medical treatment, you ask questions, get as much insight as you can from your health care provider, ask about the benefits, ask about the side effects, the advantages and disadvantages of a recommended medication or a procedure. Use social media to learn more about your condition and also to learn about medications and procedures that were prescribed. But, you know, bear in mind, don’t don’t think that that makes you a doctor just because you’ve done some online research or checked on social media. But it can certainly be helpful in garnering information, so you know what to look for.

Also, ask for a second opinion. If the situation warrants it or there’s any uncertainties in your mind, get a second opinion from another doctor. A good doctor is going to welcome confirmation of his or her diagnosis. And if they resist those efforts or try to discourage you from learning more, that’s a red flag that you definitely should get a second opinion.

You might also want to consider bringing along an advocate, because sometimes, depending on the nature of what you’re facing, it might be hard to process all the information by yourself. So bring a family member or a friend, perhaps someone who’s in the medical profession, who can come to your appointment, someone who can understand the information that’s being given and maybe even offer suggestions or ask questions that you might not think of.

Additionally, download an app. There are a number of medical apps out there available which can help you keep medical information literally in the palm of your hand. You know, you might want to ask your doctor about potential apps with respect to a specific medical issue that’s being attended to.

But there are health care apps that can be simple or complex, and depending on your age and condition, you can manage your well being, your medications and and more through those types of apps. So you might want to look into that as well.

If you feel that you or a loved one has been the victim of malpractice, talk to an attorney experienced in handling those cases. Most attorneys, as I mentioned, who handle these will work on a contingency basis and will usually front or advance those necessary costs that we talked about, to proceed if it turns out that your case has some merit.

And I’m not here to solicit a case, but VanDerGinst Law, of course, would be honored to speak to you if you have questions or need help. So once again, please be sure to subscribe rate and review us and check out our other podcast, Uncommon Convos. Please join us next week when we discuss another legal topic.

And in the meantime, have a great day. Stay safe. And I love you all.