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Has Anyone Ever Sued a Doctor For Malpractice?


LIguy
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After 3 months of hell following botched up surgery I'm considering suing the doctors involved.What I'm interested in knowing is how far would the opposing attorneys go in raking me over the coals so to speak.Do they investigate every aspect of my life like my work,my social life,my sex life? Any info or experiences would be greatly appreciated.

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>After 3 months of hell following botched up surgery I'm

>considering suing the doctors involved.]

 

Being a plaintiff in any litigation is hellish, extremely time-consuming, emotionally draining, and rarely satisfying -- for lots of reasons, being a medical malpractice plaintiff subjects you even more severely to some of the worst of those problems. Defendants' lawyers fight very hard, as they should, and you will be their target. All litigators want to make life as miserable as possible for the other side in order to maximize the desire to settle. You won't be any exception.

 

Remember - you are trying to prove that a doctor committed malpractice and take the insurance company's money - of course they are going to fight like cornered rats, which includes doing everything they possibly can to you that you won't like.

 

In my view, it should be pursused only if there are serious damages from which you are suffering (by serious, I don't mean some pain and temporary suffering; I mean death (which obviously doesn't apply here) or serious, permanent bodily injury). Only with those types of injuries do you have any hope of recovering anything which would make it even remotely worthwhile to subject yourself to this.

 

Here are a few things to keep in mind:

 

(1) There has been a great surge recently of anti-malpractice-lawsuit legislation, mostly engineered by insurance companies and doctors. I don't know what state you're in, but almost all recent legal trends have made it more difficult for plaintiffs to prevail, and when they do, there are severe restrictions on how much they can recover.

 

(2) One would have to know the specifics of your claim to know how much of your private life would be subject to discovery, but most malpractice plaintiffs are subjected to pretty invasive discovery. The reason for this is simple: if you have a certain injury for which you are seeking compensation, the defendants have the right to prove that there is some other cause for the injury other than the defendat-doctors' actions - such as alcohol consumption, drug abuse, or other behaviors which may impact on your health.

 

(3) In addition to those specific discoverable areas, you also forfeit your doctor-patient privilege with regard to virtually all - if not all - of your medical care providers, which means that the defendants' lawyers (who really work for insurance companies) will have the right to subpoena all of your medical records, dig through it all, and ask anything they want in your deposition and then at trial, and you'll be required to answer.

 

(4) Discovery in all civil matters is very broad. The rationale of the judicial system in almost every jurisdiction is that people who are party to lawsuits should be able to discovery anything even remotely relevant to the claims and defenses in the case. That deters bad lawsuits, forces settlements, and (supposedly) maximizes truth-seeking. While most of the trash uncovered in discovery won't be admissible at trial, pretty much anything outside of truly offensive or blatantly irrelevant material is fair game.

 

(5) Doctors, like everyone else, are allowed to make mistakes. A simple mistake is not malpractice. While the semantic standards vary by state, you will have to demonstrate that what your doctor did is so plainly wrong that there is no medical justification for the conduct. That is a harder evidentiary standard to meet than it sounds.

 

Having said all of that, if you really believe that your doctor committed serious malpractice and you have been seriously injured, a malpractice lawsuit is a legitimate and important means for holding doctors (or anyone else who wrongfully harms you) accountable.

 

But trying to prevail in a litigation generally is difficult, messy, and not fun at all, to put it mildly - and that probably goes double, at least, for medical malpractice lawsuits.

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I just realized you are in Long Island. Assuming the claim would be brought in NY, everything I just said about the broadness and permisiveness of discovery is completely applicable.

 

Just to give you one example - if you claim that you are suffering emotional distress by virtue of the botched surgery, the defendants' lawyers will have the right to explore anything and everything which might be an alternative cause of that emotional distress (in order to prove that that damage was not caused by the doctors' behavior, even if they did commit malpractice).

 

Thus, all of your psychological records would be discoverable, as would any issue in your life which might be causing emotional damage. That pretty much covers everything - busted relationships, work problems, other health problems - everything.

 

New York judges pretty much have the attitude - with very rare exception and in very egregious cases - that if you bring a lawsuit like this, you have to expect that your life will be open to discovery.

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I think there is a difference between being "involved in malpractice litigation" and pursuing a valid complaint against a doctor. You may be entitled to a refund or a quick settlement that would avoid the dangers that Doug discusses above. I join him in couseling that you avoid frivilous complaints,but if your situation is not frivilous, consult a lawyer just to see what the possibilities are. Most lawyers in that field will give you a free consultation.

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Doug, I was impressed with your extremely well stated and coherent reply to LIguy's question about bringing forward a malpractice claim. When I saw the title I was expecting a series of uneducated responses that reflected the public's "malpractice lottery" mentality. Your post should be required reading for anyone who is considering a malpractice claim.

 

Thank you.

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Where I live most doctors, clinics, and hospitals "force" you (prior to treatment) to agree to arbitration so they can’t be sued for malpractice. They use the justification that arbitration is less costly (for both parties) and benefits everyone. In fact, some doctors refuse to treat non-life threatening problems without a signed agreement to arbitration. So far the doctors and clinics have prevailed in court when refusing service without an arbitration agreement.

 

Rarely have I heard of a successful arbitration where the patient was fairly compensated. In addition, many states have “caps” or limits on malpractice awards. After the attorney takes their cut and their fees are paid, the patient receives little benefit.

 

As previously stated by others, I believe the discovery process would strip you of any privacy. Plus, there is always the problem of finding a doctor who will actually testify that one of their own screwed up. They may tell you that in private conversation but won’t repeat it under oath. In addition, medicine is not an exact science and your condition is subject to interpretation and opinion. That’s more than enough “wiggle room” to keep you from prevailing.

 

I’d be very hesitant to pursue a malpractice lawsuit or even arbitration unless it involved death, permanent disability, or gross negligence (such as removing the healthy kidney instead of the diseased one). x(

 

-------------

"We need to have more respect for each other. Things have just gone really crazy, out of control. ... We're on a very weird kind of cycle." Stevie Wonder

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Ditto! Doug, excellent job!

 

I also expected the Jacoby and Meyer’s mentality…

 

The only thing I would add is implied in Doug’s fifth point regarding the fact that doctors are allowed to make mistakes or not be letter perfect… It is something referred to as “the standard of care”, and can vary according to geographic location. For example, a physician practicing in a small town rural community with limited facilities might not be held to the same standards a physician practicing in mid-town Manhattan. Still, such a ‘standard’ is more or less the equivalent of a wide variety of treatment outcomes be they good, bad, or indifferent, and can vary extremely widely… and most often to the definite advantage of the medical provider… giving him quite a bit of wiggle room to justify a mistake. Consequently, another reason to think twice before acting.

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Quite a number of years ago my parents were involved in a case where my father sustained an injury brought about by the negligence of a business establishment. During the discovery phase they began asking my mom personal questions about how it all affected their sex lives… my mom being very embarrassed about the whole situation (and the fact that the opposition was able to find an expert witness that would testify that ‘negligence’ was in fact a good thing!) were among several factors that prompted their decision to drop the litigation.

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The other point I would add, which I haven't seen mentioned, is that a bad outcome doesn't mean malpractice has occurred. Without hearing specifics about a case, I can't advise you as to whether standards of care were violated. Bear in mind that you probably won't see a lot of dollars unless there has truly been a long-lasting injury, such as an injury which affected your ability to earn a living, an injury which resulted in chronic pain, or some other long-term disability.

If you have any question as to whether malpractice has occurred, you could ask a trusted doctor, or consult with a completely independent doctor who doesn't work at the same hospital, etc. If you feel fairly certain that your medical care was negligent, the state medical board will investigate your complaint at no cost to you. It will also provide the appropriate discipline for the involved doctor(s), which could include a letter of reprimand, required additional educational training for the doctor, preceptorships, probation, or even license suspension. In fact, the medical board, composed of doctors and law enforcement professionals, is more likely to accurately determine if there was negligent medical care than a jury of laymen.

A complaint against the medical board keeps you out of the fray, and keeps any dirty laundry out of the public eye (you release your medical records to the board only, not to the public). Of course, if the board finds negligence, this would be a good motivation for a settlement if you change your mind.

If you are able to provide more details of your case, I'm sure you could get more precise advice, from both a medical and legal standpoint.

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>Asking about your parents sex life is so scummy.

 

Not necessarily. Many times, plaintiffs who bring personal injury lawsuits claim that the injuries which they allege were caused by the defendants are preventing them from having a normal, healthy sex life (with their wife, girlfriend, generally, etc.), and they seek to obtain compensation (i.e., force the defendants to pay them money) as a result of the injury to their sexual abilities.

 

Under those circumstances, it is not only justifiable, but necessary, for the defendants' lawyers try to use the discovery processes in order to explore whether or not that claim is true or if (as is so often, but not always, the case) it's just a contrivance by the plaintiff to make himself seem more injured than he really is in order to increase his payday.

 

Thus, asking the plaintiff's wife about their sex life and whether there have been changes since the injury ("how often did you have sex before the injury?" - "was it satisfying"? - "how often do you have sex now?") is far from "scummy." In cases like this, it is the plaintiff who brought the issue of his sex life into the lawsuit, and having done so, it is only reasonable that it will become the subject of discovery to test the truth of his assertions.

 

There are lots of other types of allegations that can make a litigant's sex life relevant and discoverable (defamation claims concerning sex-related statements, sexual harassment lawsuits, lawsuits arising out of sexually-transmitted diseases, etc.).

 

It is quite common for people to bring lawsuits which makes these issues relevant but then feel outrage when the other side demands the right to obtain evidence relating to those issues to see if what the plaintiff is saying is true or not. Nobody has the right to make allegations in a judicial proceeding and expect that it will just be assumed to be true.

 

All of this underscores the primary point - if you are going to commence a civil lawsuit of any kind, you'd best be prepared to undergo lots of scrutiny from the people whom you are suing.

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I really appreciate the responses to my post especially from Doug.I think at this point I need to let the anger subside and try and find out exactly why this happened to me.Then I'll sit down with a lawyer or 2 and decide whether I should persue a suit or file a complaint.Thanks!

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>I really appreciate the responses to my post especially from

>Doug.I think at this point I need to let the anger subside and

>try and find out exactly why this happened to me.Then I'll sit

>down with a lawyer or 2 and decide whether I should persue a

>suit or file a complaint.Thanks!

 

I'm glad to hear you say that. The best person to help determine why the bad outcome occurred is a physician not connected to the case. A lawyer will involve other physicians in a case, but his primary interest is in making money, not in revealing the "truth." Surgeons go through many years of post-medical school training to learn their craft, and then undergo a lot of scrutiny from the hospitals or surgery centers where they work. Yes, negligent care does occur, but most bad outcomes are not due to negligent care.

Everyone has heard of instruments being left in patients, but it is standard practice to count and account for every piece of equipment and gauze before closing, for example. If the counts are incorrect, and the item cannot be found, X-rays are usually done to locate any item which might remain. Countless things can go wrong in the OR, peoples' anatomy differ, and structures are not always as clear as one might believe from reading a textbook.

Good luck at finding the truth the best way you can...

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>I'm glad to hear you say that. The best person to help

>determine why the bad outcome occurred is a physician not

>connected to the case. A lawyer will involve other physicians

>in a case, but his primary interest is in making money, not in

>revealing the "truth."

 

Nobody is free of biases and self-interest in the world -- not even (gasp!) godly doctors. While doctors like Unicorn will try to tell you that the only pure, elevated source of information on malpractice lawsuits can come from other doctors (because the mean corrupt lawyers, unlike doctors naturally, are only motivated by money), doctors are about the least unbiased people in the world when it comes to malpractice suits.

 

Most doctors HATE malpractice lawsuits. They believe such lawsuits are ruining medicine by stomping out creativity and forcing defensive practices, and they blame these suits for their expensive liability insurance premiums. Doctors have a huge financial incentive to minimize the number of lawsuits brought (meritorious or frivolous) and they have an equally huge emotional investment in not watching other doctors smacked with huge judgments for their fuck-ups.

 

Worse, doctors have a vicious fraternity of self-protection -- like police officers covering up for each other or brokerage house representatives always ruling in arbitration for the brokerage house over the consumer. This bias is not unique to doctors. Most people will empathize with the side in a dispute to which they are closest. Most doctors tend to empathize with other doctors and to rationalize and find excuses for even their most inexcusable errors (notice how Unicorn in his post even made excuses for doctors who leave surgical instruments floating around in a patient's body before sewing them up).

 

While Unicorn is correct that any malpractice plaintiff's lawyer you talk to will be financially motivated, this is actually something that will increase (rather than decrease) the probability that you will get good advice.

 

Virtually all malpractice lawyers work on contingency - meaning they don't get paid unless you recover. Malpractice lawsuits are always complex and hard-found and entail an enormous amount of work. Not only that, they are expensive (one needs to pay medical experts, take depositions, conduct all sorts of tests) and it is the plaintiff's lawyer who, almost always, bears all of the expenses and is only re-imbursed if there is a recovery.

 

As a result, a plaintiff's lawyer is extremely unlikely to encourage you to commence a frivolous litigation or one that you are unlikely to win, precisely because his financial motivations cause him to be enthusiastic only about cases which are meritorious. Unlike lawyers who work on an hourly basis (and who are therefore financially motivated to encourage any litigation because that's how they get paid), contingency lawyers like malpractice attorneys have a built-in financial motivation to avoid frivolous cases and to commence only those where the doctors truly fucked up and the case has real merit.

 

This is not to discourage you from talking to a trusted physician about your case. Obviously, all of these comments are generalizations and there are exceptions to each of them. I just couldn't let Dr. Unicorn's typical blind praise of the lofty wisdom of doctors (and mindless attacks on lawyers' integrity) go unanswered. Just as you should be aware of any potential biases driving the advice you get from lawyers, you should be equally aware of the biases (and they are substantial) driving the advice you get from doctors.

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I would like to applaud Doug for raising some very relevant and important points that anyone should consider who is contemplating a medical malpractice suit. I would also like to address a point that he did not raise.

 

The most important decision you can make if you choose to pursue a medmal claim is deciding on your attorney. Attorneys who represent plaintiffs in medmal cases usually take a case on a contingent basis, meaning that you pay the attorney no fee unless the attorney succeeds in getting money from the defendant (or his insurer). We have all seen ads on television from such attorneys. One thing such ads rarely address is the issue of expenses, which are not the same as fees. Fees compensate the attorney for the time he spends working on the case. Expenses are the out-of-pocket costs of pursuing the case, such as court filing fees, expert witness fees, court reporter fees (for depositions) and others. Some plaintiffs' attorneys ask you to pay expenses on a current basis. Others advance the expenses and deduct them, in addition to their own fees, from any money recovered. Make sure you understand which arrangement you are agreeing to when you hire an attorney. You do NOT want to find yourself agreeing to pay many thousands of dollars in expenses for a case that produces no money for you. Nor do you want to anticipate a huge payment for yourself, only to find that the combination of the attorney's fees and the expenses leaves much less for you.

 

Reputable medmal attorneys will not take a case until they thoroughly investigate it and determine the chances of winning are excellent, since they are risking their own money as well as yours. But if such an attorney takes your case you must make sure you understand how much he thinks you are likely to recover, NET of his fees and expenses. Doug is right in telling you that such litigation is a VERY unpleasant experience, and you do not want to go through it only to find that you end up with such a small amount that, had you known the result, you would have chosen not to do it.

 

Finally, there is an excellent nonfiction book called "Damages" by Barry Werth that tells the story of an actual medmal case in detail from start to finish, looking at the case from all points of view with no bias toward plaintiff or defendant. I would recommend that anyone who is considering getting involved in a medmal case read this book. Among other things, it will give you a good idea of what it is like to be a plaintiff in such a case.

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Unofortunately, the reality is that often plaintiffs receive settlements or judgments based on the emotional appeal rather than on the actual reality of the case. For example, I gained knowledge of a case through a hospital committee to which I belong of a $100,000 payment that was made to a family of a patient who wouldn't have survived in any case. Apparently a radiologist missed a small bubble of air in one cut of a CT scan which, in a healthier patient, could have resulted in life-saving surgery. Leaving aside the issue of whether missing the tiny sliver of air was negligent (not having seen the film and not being a radiologist, I have no opinion on that matter), this particular patient had very severe heart failiure and kidney failiure long before this incident due to amphetamine abuse and severe obesity(400#), and the patient came to the hospital in shock.

Everyone connected to the case agrees that it was highly unlikely that the patient would have survived even if the air bubble had been caught in time (it was caught in 2nd review 6 hrs later). Yet the hospital paid out the sum to avoid the bad publicity and legal expenses.

I have seen many times patients or family being under the misconception that malpractice has occurred due to incomplete information receive from one member of a health care team. Perhaps the primary doctor taking care of the patient felt guilty about a patient dying unexpectedly on his service, and semi-consciously wanted to deflect his guilt towards the radiologist, by delivering a message "You know, I might have saved him if it hadn't been for the radiologist." Of course, it wouldn't be said in those words, but that's what the patient's family would hear.

In other situations, I have seen a patient go to Doctor B in Hospital Y, and hear or understand "I don't know why Doctor A in Hospital X couldn't figure out your problem!". Well, Doctor B may have had information not available to Doctor A. The message may have been given even more simply, such as "I wish I'd been able to diagnose your problem sooner," but the patient merely surmised that Doctor A should have figured things out if Doctor B could. I became aware of another legal case in which a cancer diagnosis was delayed, but every oncology textbook states that the (very rare) cancer is notoriously unresponsive to surgery, chemo, or radiation, and mortality is over 90%.

The reason arbitration agreements have become popular is that arbitrators are more likely to be able to understand the complexities of these difficult medical situations than a janitor and apple picker with IQ's in the 80s. Having poorly-educated or mentally challenged people evaluate cases benefits mainly whichever side is attempting to pull the wool over the eyes of the jury (often by pulling at emotional strings).

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As far as I know, there are no minimum standards regarding education or intelligence to serve on a jury. A juror doesn't even have to know how to read, or be able to add 2 and 2. I remember one time when we were being questioned for jury duty, the judge said "According to the law, the prosecutor has the burden of proof. He has to prove the case beyond reasonable doubt for you to vote guilty. So, Juror #3, if I told you that you needed to provide me a verdict right now, how would you vote?" To which juror #3 replied "I don't know." In other words, this prospective juror couldn't even understand the simple concept of having a burden of proof, 5 seconds after the judge explained it to her. (I didn't end up sticking around long enough to see if she actually remained in the jury box, but I suspect she did). Medical malpractice cases tend to be particularly complex, because they require the juror to understand not just that a mistake was made and that there was a bad outcome, but the more important questions are (1) whether the mistake amounted to negligent care, and (2) whether the mistake was actually the primary (let alone only) cause of the bad outcome.

Mistakes happen all of the time in the practice of medicine, just as they do in the legal field and any other profession. Most of these mistakes do not come under the realm of "negligent care," and certainly fewer still cause any significant harm. In fact, I've been racking my brains trying to think of one example I can remember in my career in which a medical mistake resulted in a significant adverse outcome. The only example I could think of was early during my training when, at an M&M conference (where adverse outcomes are discussed in front of everybody to see if anyone can think of a way the outcome could have been avoided), a cardiologist suggested that an implantable defibrilator could have saved the teen's life. However, at that time, the technology was new, and could hardly have been described as standard of care, if only one cardiologist at this large teaching hospital thought about it in retrospect. I'm sure that if all of the cases a public defender lost were discussed at a conference of criminal defense attornies, some attornies could come up with suggestions as to how the case could have been defended better.

I personally feel strongly that juries shouldn't be involved in any civil case. In fact, I think that the US is the only country in the world with juries involved in civil cases (someone correct me if I'm wrong). This discomfort is particulary acute for complex cases such as medical malpractice cases, and lots of complex business cases.

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>After 3 months of hell following botched up surgery I'm

>considering suing the doctors involved.What I'm interested in

>knowing is how far would the opposing attorneys go in raking

>me over the coals so to speak.Do they investigate every aspect

>of my life like my work,my social life,my sex life? Any info

>or experiences would be greatly appreciated.

 

One thing to remember in these circumstances is that medical malpractice cases rarely go to trial - despite the publicity that they get in the news. If it seems that the plaintiff has a legitimate case, insurance companies will try to settle. Insurance companies will only do a thorough, potentially difficult investigation if you are asking for a huge amount of money, have a suspect claim, or seem unwilling to negotiate.

 

My cousin is a medical malpractice lawyer and while he has won many settlements, less than half of his cases have gone to trial.

 

So, if you feel that you have a compelling case, go see a malpractice lawyer, ideally one that is recommended to you and present the facts of your case. The lawyer should be able to provide you with an assessment of how invasive the scrutiny of your claim will be.

 

In particular, if you are complaining of pain or misery after surgery, a history of visits to your doctors after the surgery or prescriptions for Viocodin or whatever will help your case. If you've been suffering in silence for 3 months or there is no physical evidence of the harm done, you will have more trouble making headway.

 

Good luck.

 

Richard

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