Malpractice Cases
Brien Roche
What is Medical Malpractice?
It is substandard care by a health care provider that injures a patient. In a malpractice action the patient must prove what is the standard of care. In addition the patient must prove a breach of that standard. Also you must prove that the breach injured you. Finally you must prove what that damage is.
Malpractice Cases-Background Checks
Before any suit is filed against a doctor, available sources of info on a doctor should be checked out. In addition checking out a doctor’s background will better equip you in terms of coming up with questions for the doctor.
Public Records
- In Virginia, you may contact the Board of Medicine at (804) 662-9388. Write to the Board of Medicine at 6606 West Broad Street, 4th floor, Richmond, VA 23230-1717. Go to their website in order to get background info on a doctor. The Board will give you basic info about that doctor. They will provide the issue date of the medical license and the date it expires. Also they will provide info whether there has been any discipline against the doctor
In Washington, D.C., you may call the Board of Medicine at (202) 724-4900. You will be given the same info as what Virginia gives. - Check court records for other cases. This may assist with any claim that the hospital was at fault in keeping this doctor on staff.
- Info from when the doctor applied for a license may be fruitful.
- Criminal record check may provide some surprises.
- Court filings including bankruptcy may give some clue as to the doctor’s wealth or holdings.
- Title search of the local land records will show real estate transfers. In addition it will show attempts to foreclose and debt against real estate.
- Board certification scores and test results may give a clue as to academic prowess.
Private Records
- Records maintained by a hospital on the doctor may provide a wealth of info.
- Employment records.
- Auto registration and driving records.
- LEXIS and/or WESTLAW search may provide info about any prior cases. Likewise, the Trial Lawyers deposition bank may provide info.
Some websites that may be helpful in that regard are the following:
- The American Medical Association maintains a doctor find list that contains background info about doctors. Go to Google and key in “doctor find”.
- Healthgrades.com reports on doctors. State license boards offer info on doctors that are licensed in that state.
- Public Citizens Questionable Doctors is a database. It has info on actions against doctors.
- Quack Watch helps patients look at treatments.
Malpractice Cases-the Proper Parties
In medical malpractice cases, lawyers are sometimes accused of suing too many people. Sometimes that is necessary. Sometimes the lawyer does not know exactly who the culprit is. That may not be known until you get further into the case. If you feel that you know who the right defendants are and they are doctors or nurses, there may be some logic in trying to reach a deal with the defense attorney to only sue the entity and not sue the individuals. However the entity should admit:
- These people are employees or agents.
- If the people have any liability, then the entity takes on that liability.
- Whatever insurance coverage the entity has will apply to the actions of the individuals.
- If you need the people to appear for a deposition or at trial, they will appear without the need for a subpoena.
- What the people say in depo can be used as if they were a party.
Malpractice Cases-Identifying the Standard of Care
Standard of care loosely means what the reasonably prudent doctor would do in that case. In most cases the standard of care is not in writing. Instead it is a product of one doctor saying what the standard is. In other words the standard that applies to your case may be disputed. As a result the plaintiff may say the standard is “X”. The defendant may say the standard is “Y”. It then becomes a question for the jury or judge to decide what is the standard in this case. Call, or contact us for a free consult.
See the page on this site dealing with standard of care issues.
National Standards
The standard may vary from locality to locality. Also it may vary from state to state. However in most specialties the standard is a national standard. However it need not always be so.
In order to prove that standard you need to retain a doctor with experience in that field. She must state what the standard is that applies to the treating doctor. Also an expert should state the standard was then breached.
An Objective Standard of Care
The concept of standard of care is basic. It is the footing of your case. It is not what a single doctor thinks should be done. Rather it what the reasonable doctor does. It is an objective standard. It is not subjective.
Practice Guidelines have been published by a number of groups to guide doctors. They may deal with certain conditions. Hence guidelines can be helpful in a medical malpractice case. They may help define what is the standard. However they can also be your foe.
In 2010 the Affordable Care Act provided for the office of Health Policy and Research. It was to develop practice guidelines. These were to establish the legal standard of care. In addition they could serve as a “safe harbor” for doctors. If the doctor complied with the guidelines then the doctor was “safe”
Hospitals May Set the Standard of Care
In a Virginia case a hospital and radiology group were ordered to produce redacted copies of Employment Agreements The hospital had required that the primary findings from radiology be reported first in written reports. This way it was clear to the treating doctor what was primary. However in this case the radiologist did not comply. He put the primary finding at the end of the report.
The trial court ruled that the contract between the doctor and the hospital should be produced to the plaintiff. The hospital in effect set the standard for the doctor. Call, or contact us for a free consult.
Sexual Assault Is A Per Se Violation
Sexual assault by health care providers is not unheard of. In reviewing cases of this nature you need to review the following:
Was It Reported
- Was the sexual assault reported to the police? If not, it will have to be once the client is ready to do so. If the client is not ready then she may need treatment as a prelude.
- Has the client ever been sexually assaulted before? If so, was there a civil claim made? Was there any treatment?
- The carrier for the doctor may deny coverage or reserve its right to do so.
What Is The Verification
- Is the client willing to undergo a polygraph exam? A refusal is a factor in looking at the overall merits of the claim.
- Did the doctor have a policy of having a female chaperon present?
If you have been sexually assaulted by a doctor or feel you are the victim of medical malpractice and have a basis for making a claim, contact us.
Also for more information about medical malpractice cases, see the other pages on this site and see also the pages in Wikipedia. Call, or contact us for a free consult.
Malpractice Cases-Breach of the Standard of Care
A breach of the standard of care may come in a number of ways. It may be seen in the way a procedure is done. It may be in the failure to diagnose. In addition it may be in a failure to obtain informed consent.
Doctor In Over His Head
In some cases the result is due to the doctor being in over his head. This may be due to age, lack of experience or lack of training. In cases like that your “Rule” for the case may be that doctors must know when they are in over their head and ask for help. Therefore in those cases you may want to:
- request the hospital billing codes to see how many such procedures this doctor has done
- ask about any privilege restrictions
- get the CME records
- get the contract between the doctor and the employer
- find out if he did ask for help
- find out who was able to help
Wrong Cut Surgery
Doctors sometimes cut right when they should have cut left. The common defense to these cases is that this happens to everyone. That may be true. That does not mean there is no fault present. The “Rule” in these cases may be that the doctor cannot guess what a structure is but should test to make sure he is cutting the right structure. With that Rule you may have a case. The more simplistic rule may be “before you cut, check what abuts”.
Malpractice Cases-Misdiagnosis
Studies indicate that doctors make the wrong diagnosis in 10% to 15% of office visits for a new problem. The average office visit last no more than 21 minutes. Being able to diagnose the problem depends on the patient giving complete info. Therefore that info must include a correct history and a clear statement of symptoms.
Some simple things that can be done to increase the chances of the doctor making the correct diagnosis are:
Lack of Differential Diagnosis
Getting to the bottom of what is going on with the patient may be a matter of putting many things in the target zone. The goal is to cross out all but one of them. That can’t be done if the correct one was never in the target zone. The crossing out is based on exams of the patient, tests and films.
In an article in The Washington Post by Sandra Boodman, she reports that diagnoses are missed, wrong or delayed in 10-20% of the cases. Likewise a 2009 report funded by the U.S. found that 28% of 583 diagnostic mistakes were life-threatening or resulted in long term problems. In 1991 the Harvard Medical Practice Study found that misdiagnosis was a cause of 14% of adverse events. In addition it reported that 75% of these errors involved fault of the doctor.
Many misdiagnosis issues are never detected. Many of them go undiscovered for years until they cause some problem. Call, or contact us for a free consult.
Differential Diagnosis in the Emergency Room
There is no question that the emergency room is a prime place for a misdiagnosis. In that setting the doctor is seeing the patient for the first time. In addition the patient may not give a complete history. Also the doctor is short on time. In other words you have the basics for a bad outcome.
A VA study reported that more than half a billion primary care visits occur each year in the United States. Also it noted at least 500,000 missed diagnostic chances occur each year at primary care visits. Many of them result in harm.
Misdiagnosis Examples
A research team from Johns Hopkins University School of Medicine analyzed data from the National Practitioner Data Bank. This bank is maintained by the U.S. Hopkins reported on the primary cause of medical malpractice claims. In this study they examined 25 years of malpractice payments as reported through the data bank. Furthermore what they found was that misdiagnosis was the most common, the most costly and also the most deadly of all medical errors. The research team reviewed 350,000 different malpractice cases.
In 41% of the misdiagnoses the result was patient death. The average payment for these successful misdiagnosis cases was $389,000. The highest category of claims were obstetrical claims which averaged $695,000.
Multitude of Misdiagnoses
Examples of serious cases of misdiagnoses include mistaking an ectopic pregnancy for appendicitis, mistaking an aortic dissection for severe heartburn. In addition there was mistaking a brain stem stroke for an episode of being dizzy.
To some extent the fear of misdiagnosis has led doctors to over treat. This is seen in emergency rooms where people come in complaining of dizziness. As a result they may get a CT scan of the head. Nationwide these scans cost millions of dollars. In most cases they are useless. Call, or contact us for a free consult.
Commonly Misdiagnosed Illnesses
Commonly misdiagnosed illnesses include such conditions as lupus, celiac disease, fibromyalgia, multiple sclerosis, and Lyme disease. Many of these conditions carry somewhat similar symptoms.
Lupus
Lupus is a chronic inflammatory disease. It carries with it symptoms of fatigue, rash, joint pain and kidney, heart and lung damage. The tests to make a proper diagnosis are complete blood count, chest X-ray and specific DNA testing. In addition various cell testing may be fairly definitive in making the diagnosis.
Celiac
Celiac disease is an autoimmune disorder where the person cannot digest gluten. The symptoms are vomiting, abdominal pain, bloating, diarrhea, weight loss, anemia and leg cramps. The tests to make the diagnosis are blood tests looking for certain antibodies, plus small intestine biopsy and DNA testing.
Fibromyalgia
Fibromyalgia is a chronic arthritis like disorder with widespread pain. There is no definitive test available. A diagnosis is made when the patient reports a history of widespread pain lasting more than three months and the presence of at least eleven tender points that are extremely sensitive to pain.
MS
Multiple Sclerosis is a progressive autoimmune disease. It attacks the central nervous system. In addition it produces muscle spasms, lack of coordination, balance problems, blurred vision, and cognitive impairment. The tests to make the diagnosis are blood tests to rule out other disorders, a lumbar puncture, and an MRI.
Lyme Disease
Lyme disease is an infection that is caused by a tick bite. It produces symptoms of shortness of breath, chest or rib soreness, abdominal cramping, and nausea. In addition there may be symptoms of vomiting, a rash at the site of the bite, neck stiffness, and twitching of the face or eyelids. If there is no rash visible then there is a two-step blood antibody test that may make a diagnosis. Also see the post on this site on Lyme disease.
Fatigue
Chronic fatigue syndrome has long been a subject of debate among doctors. The symptoms can include constant pain, difficulty concentrating and extreme exhaustion. Any personal injury attorney handling a case with a plaintiff who has chronic fatigue needs to appreciate the effect that physical injury can have on these people.
For years people complaining of these symptoms have been subject to ostracism. Some doctors doubt the overall diagnosis.
Many doctors believe there can be different causes of these symptoms. They may include viruses and genetic problems. Some doctors still believe the condition is psychiatric.
In 2010 a committee of the Food and Drug Administration recommended that people with chronic fatigue syndrome be barred from donating blood. Its bona fide existence has received some validation from this.
Chronic fatigue syndrome is not the only illness that has not been taken seriously. Multiple sclerosis was treated as hysteria or chronic alcoholism. Today it is recognized as an auto-immune disease. In addition stomach ulcers were thought to be caused by stress. Later doctors proved that a bacteria was the cause. Call, or contact us for a free consult.
Malpractice Cases-Unnecessary Procedures
Hip replacement surgery has become the bread and butter of many orthopedic surgeons. Many of these are unnecessary. Hip pain, where there is no arthritis typically is a clue to the fact that a new hip may not be needed.
The cause of many hip symptoms is that the ball and socket in the hip do not fit. This is called impingement. It is like putting a square peg into a round hole. The ball of the hip bone puts extra pressure on the rim of the socket. This rim is called the labrum. The socket is encircled with cartilage which provides cushion between the two bones. When that cushion breaks down as a result of the ball not properly fitting it produces pain.
To repair this the surgeon makes half-inch incisions around the hip and then re-contours the ball into a round shape. That way it fits into the hip socket. Next the cushion around the socket is repaired. Finally it is secured onto the bone with stitches that anchor it. As a result there should now be a perfect match between ball and socket.
This type of repair is done outpatient. The patient can go home that day.
Expenses Not Needed
A hip replacement may have served the same purpose as this hip repair. However the hip replacement is more dramatic. It also costs much more. Hip repair in a case where the hip bone is simply a little too big for the socket is the preferred course of action.
However even before this hip repair is done the first course of action is injections. These are designed to reduce inflammation. They are followed by physical therapy. That may solve the problem. However if the hip bone is too big for the socket then some repair is needed.
Anterior Hip Replacement
Every year approximately 300,000 people undergo hip replacements in the U.S. Many of these are posterior where the surgeon enters the joint from the rear.
Another procedure allows entry from the front. This avoids the cutting of muscles and tissues that are part of the posterior entry. Through the anterior entry the muscles are stretched aside. It minimizes any pain from such cutting.
This approach is minimally invasive. As a result most patients are up and walking either the day of surgery or shortly thereafter.
In addition an X-ray can be taken while the surgical site is still open. This allows changes to the placement of the new hip. Although X-rays can be taken during the posterior procedure, it is much more difficult. However most surgeons wait until the patient is in the recovery room before reviewing the X-ray. However at that point it is too late to make changes.
Call, or contact us for a free consult.
Knee Replacement
Knee replacement surgery is needed when the cushion between the bones has worn down. That cushion between the bones is the cartilage. The knee bones themselves are held in place through ligaments that tie the bones together and keep you stable as you walk or run.
This surgery involves the removal of the damaged bone and the placement of metal components. Also a metal plate in placed to have a smooth surface for the bones to glide across.
Bilateral Knee Replacement
A double knee replacement may seem like a lot. However it is becoming more common. The plus of doing both knees is that only one surgery is necessary. In addition there is only one rehab needed. However these patients must be in good health, have equally severe arthritic pain in both knees and be younger than 80 years of age.
The knee implants that are used today are more durable than years ago. Ninety percent (90%) of them will last more than 20 years.
Knee Replacement and Physical Conditioning
It is important prior to a dual knee replacement that the patient be in good shape. This involves working the knee muscles. The muscles should also be stretched in order to improve range of motion.
The need for this surgery is always case specific. It should be gauged not just on function but on pain level. The surgery is open and more often than not is being performed on senior citizens. It carries with it the risks of infection, difficulty with rehab, potential cross-addictions and all of the other problems of old age.
Malpractice Cases-Causation
In “legal lingo” causation means proximate cause. The word proximate technically means “near”. As such the way to think of proximate cause is that it is the near cause. In contrast is the remote cause. This concept is explained in a bit more detail in my book entitled Law 101.
The example that I gave in that book of proximate cause is one where a father is playing a game of catch with a child. A father throws the ball a bit too hard. The ball goes through the neighbor’s window into the back of the house onto the back porch. It knocks over the metal grill which then rolls down the hill. The grill strikes another neighbor in that downhill yard. Finally that other neighbor dies from the impact.
The question then arises as to whether the father’s fault is a proximate cause of the neighbor’s death. That question probably would be up to a jury to decide. However it’s difficult to see that the father’s conduct is the proximate or near cause of the neighbor’s death. The father had no reason to expect that the ball he was throwing would go through the neighbor’s house from front to back. He had no reason to expect the death of the downhill neighbor. As a result that death is not something that is reasonably foreseen. Therefore probably there is no proximate cause.
If on the other hand the ball had injured the homeowner who was standing in the front window there probably would be a finding of proximate cause. That can be foreseen. In other words the father’s conduct was a proximate cause of that neighbor being injured. Call, or contact us for a free consult.
Causation May Involve What is Foreseen and Other Concepts
In medical malpractice cases what is to be foreseen or should be foreseen is an important concept. Another important concept is that even if the doctor was at fault the patient would have died anyhow. If that is the case then the doctor’s fault is not a proximate cause of the death. I call this defense the “shit happens” defense. That type of defense is present in most misdiagnosis cases. The defense says that even if the diagnosis had been made at that time the outcome would have been the same. The outcome being death or a poor result.
The point to be made in regards to causation is that this is a tricky point. Many medical malpractice cases are tried on that issue. In many cases there is no significant issue as to the doctor’s fault. Instead it becomes a question of whether or not that fault was a proximate cause of damage. That basic concept is overlooked by many.
Failure to Diagnose Presents Issues as To Causation
A doctor’s failure to diagnose may result in significant loss to a patient. However the patient must have a 50% or better chance of survival or recovery in order to prove causation based upon this theory. This is called the loss-of-chance doctrine. If the patient has less than an even chance of survival or recovery then the doctor may be made to pay for the reduction in that chance. This theory is premised upon a legal treatise known as the Restatement of Torts. It says that if the doctor’s conduct increases the risk of harm then the doctor may be liable for that increase.
However not all jurisdictions recognize the loss-of-chance doctrine. However it is a legal doctrine with substantial authority. It should be pursued in the appropriate case.
Malpractice Cases-Defenses
There are many defenses that may be raised in a medical malpractice claim:
Professional Judgement
- One of the more common defenses is simply that the doctor was making a judgment call. The fact he got it wrong does not mean he is at fault.
- Another is that even if the doctor was at fault the patient still would have died. This raises a causation question.
- The doctor fully disclosed the risk to the patient. However that does not mean that the doctor is immune.
Good Samaritan
- The Good Samaritan defense exist by statute. It protects providers from medical malpractice claims where they are rendering emergency care in a non-hospital context. This extends to ordinary fault and not to gross negligence. That is, if the level of fault of the doctor is ordinary then the defense applies. In contrast if the care was grossly negligent, then the defense does not apply.
Call, or contact us for a free consult.
Malpractice Cases-Caps
In Virginia there is a limit on how much a plaintiff may receive in a medical malpractice action. That limit or “cap” is 2.4 million dollars as of 2019 and increases $50,000 per year. The cap is an absolute limit. No more than the cap can be paid to a single patient. This is without regard to the number of persons sued.
The cap was passed years ago to address what was seen as the medical malpractice crisis. It was designed to keep down malpractice premiums for doctors. Medical malpractice lawyers in Virginia fought the cap. They fought it on the grounds that it deprived injured persons of the right to be fully paid for their injury.
The state high court has upheld the cap. Bases for challenge to the cap are that it deprives an injured plaintiff of his right to a jury trial. In other words the cap infringes on the jury’s role of setting damages. There is also the due process argument: the cap takes from the injured party the chance to be fully paid for injuries. This right is a property right. The taking of this right without full payment violates due process.
In the District of Columbia, there is no such limit. Doctors in D.C. are treated the same as any other people. As a result they can be made to pay as much as any others who commits a wrong. However within the District of Columbia notice must be given to health care providers before suit can be filed. The purpose of the notice is to allow for the parties to discuss settling the matter.
The Real Beneficiary of the Malpractice Cap
The logic behind the malpractice cap is to control insurance costs. However evidence of whether it in fact has that effect is in conflict.
Those who oppose the cap maintain the insurers reap all the profit. Also they argue the carriers do not pass these savings on in lower costs. Furthermore they point out that the cap is unfair in those cases where the plaintiff has expenses that exceed the cap. In addition the effect of the cap is that the insurers will never make an offer anywhere near the cap. That is, they know that by going to trial they are exposed to no more than the cap. So why should they offer anything near the cap? They might as well try the case.
Contact an Experienced Medical Malpractice Lawyer
If you or a loved one has been a victim of medical malpractice in Virginia or Washington DC contact Brien Roche today for an experienced, aggressive attorney.