WHAT MAKES SCREENING & INVESTIGATION OF MEDICAL MALPRACTICE CASES SO DIFFICULT?
WHAT MAKES SCREENING & INVESTIGATION OF MEDICAL MALPRACTICE CASES SO DIFFICULT?
Answer: The complexity of these cases, the cost of preparing and litigating these cases, the high risk of no recovery, and the clients’ personal attachment to the case.
Generally, the first steps include gathering relevant information and all medical records, conduct appropriate medical research, and possibly obtain an expert review of the case.
An accurate medical history is vitally important; and the client may not be the best source of background medical information. The medical records are usually the best source, with some exceptions. Whatever reliable sources are available may be utilized. The client will describe, as best they can, the events that involve the alleged malpractice. While this is always important, the medical records are key; and an expert (at least one) will be required to support the case.
Clients often confuse a “bad result” that may be out of the “norm” expected with “bad medicine.” The law demands that there be a breach of the standard of care (“bad medical practice”) and that the breach be established through expert medical testimony.
Expert(s) in the appropriate specialities must review the records and support the claim in order to bring a case to trial. Experts can take quite awhile to review all the records and render a report; and they charge for the review.
Given the expense and complexity of medical malpractice cases, damages must be substantial. Cases, even ones with clear fault, may be impractical to pursue if thee is not enough in the way of damages suffered.
Most medical malpractice cases can be grouped into broad categories:
*Delay in diagnosis, misdiagnosis
*Surgical errors
*Lack of informed consent (usually a weak claim)
*Improper treatment
*Drug effects and mishaps
*Nursing errors and staff errors
*Equipment malfunction
*Infections/environmental
*Abandonment
Sometimes the biggest issue involves causation. For a delay in diagnosis, for example, one issue is almost always one of causation. Had the diagnosis been made and treatment commenced in a timely fashion would the outcome, to a reasonable degree of medical probability, be much different? Better? Is the difference enough to make taking the case practically worthwhile?
For “lack of informed consent”, the issue always involves causation. Would the patient himself or herself consented to the procedure (if they get the proper information), and knew the risks involved? Would a reasonable person have consented to the surgery, knowing the risks involved? Was it one of the known/discussed/reviewed risks that was realized (that happened) in the treatment?
Conclusion
Sometimes a decision can be made based upon an initial review after a telephone call. Many times, though, research and investigation will be required. Whichever way it goes, the process must be started in a timely fashion to allow the injured party and/or attorneys to consider the facts, gather the records and conduct the required review. This takes time, research, and, often, money. As to fees, most cases are taken on a “you win or you don’t pay” basis (contingency fee).
