The Road Map to Medical Negligence

We all care deeply for our family members and hate to see them suffer from any acute illness or injury that is caused, or apparently caused, by a medical provider. This emotional suffrage is heightened when our family members seek medical treatment and their condition is either exacerbated or a totally new illness or injury is created during the medical treatment regimen. In short, when we go to the hospital or doctor seeking treatment for one illness and we come away with a new illness or injury in the process, redress may be in order.

I speak with hundreds of persons each month who suspect that they or a loved one has been the victim of medical negligence. If you suspect medical negligence, it is better to call and inquire than to sit on your rights. However, every case that involves negligence by a medical provider may or many not justify litigation for a variety of reasons. When you call, you can rest assured that we will analyze your case from several different angles and that we will fairly report our findings to you. Each of those facets are discussed below.

Case Intake Process-

If you suspect that you or a loved on is the victim of medical negligence, you can begin the process by giving our medical negligence department a call. It is important that you act quickly as an applicable statute of limitations applies to your case. Only in limited situations can you file litigation for medical negligence after the applicable statute of limitations has expired. For example, in Arkansas, the statute is two years from the date of injury; in Tennessee, one year; in Texas, two years; and in Missouri, two years. Although this sounds like a long time, it is not as the proper analysis of a medical negligence case is very time consuming.

When you call, be prepared with information on the victim, including their full name, address, telephone number, date you believe the injury occurred and the factual circumstances behind the event. If you can, find out the names of the persons, e.g, names of physicians, nurses and other medical providers who provided any treatment to the victim. If you are not prepared to call us yet, keep good notes of your conversations with the medical providers, including the names of the persons you spoke to and the information they relayed to you. Take discreet photographs of the injuries and the victim if possible as and when treatment occurs.

Initial Case Analysis-

Our trained professionals may be able to discern immediately if you have a viable medical negligence case. Remember, sometimes, bad things happen to good people and even though you or your loved one received a bad result in their medical treatment regimen, it may not justify legal action. Our staff may, based upon the information you provide, may elect to take the next step and obtain proper releases such that we can obtain your medical records.

Medical Record Analysis-

Medical records can be burdensome in many ways. First, it can take up to three months or more to obtain all of the records depending upon the extent of the treatment you received and the number of medical providers involved in your treatment. Second, they can be confusing and difficult to read. Our professionals are trained to interpret the records and find the truth about your treatment. This too, can be time consuming depending again, upon the extent of the records. It is not uncommon that the total medical record for a serious illness can be over 2000 pages long. Third, if the medical negligence case involves the death of a loved one, we may have to set up an estate before we can even request the medical records. Unfortunately, the medical records are required in every medical negligence case. There may be some cases where we ask you to obtain the medical records for reasons beyond the scope of this blog.

Additional Information-

Our staff will probably call you for additional information as the case progresses. It is important that you timely provide the information as and when it becomes available to you. It is also important that you document your treatment with written notes, photographs and other things that will help you recall what occurred.

Final Analysis

– Once all the records are received, we began our “in house” review by our staff of medical and legal professionals. There are many angles and areas from which a putative medical negligence case must be analyzed. Each and every case must contain proof of negligence, or a violation of the standard of care, causation and damages. Each of these areas are discussed below.               

Violation of the Standard of Care.

 We must ascertain, and be prepared to prove in a court of law, that the medical provider has violated the standard of care. A violation of the standard of care is often used interchangeably with “negligence.” The negligence may involve action, or a failure to act that was wrong. Sometimes, the negligence may be  apparent. For example, if a surgeon leaves a foreign object in your body during a surgery, such as a sponge, the negligence is apparent. In most cases, however, your case must be referred to a medical provider of the same specialty for analysis to determine if the medical provider violated the standard of care. This “medical expert” must be willing to review the records and then testify that the medical provider “violated the standard of care”.  In so doing, he or she must describe the mistakes made by the medical provider, describe the better course of action and how the outcome would have been different.

It is often said that medicine is last great frontier. Truer words are never spoke with reference to medical negligence. The truth is, although modern medicine has extended the life of many over the past 20 years, we still don’t know everything about the human body. There are many diseases and conditions for which there simply is no cure. Furthermore, medical providers, much like attorneys,  often must make judgment calls as to the best course of action in your treatment regimen. He or she makes those judgment calls based upon the medicines and facilities that are available to them at the time of your treatment. The fact that your medical provider made the wrong call, or a call that caused a bad result may not automatically be a violation of the standard of care. It may simply be a good faith judgment, albeit errant, call for which there is no remedy.

Hence, finding a qualified expert is not as easy as it sounds. In most cases, we must go out of state to locate such persons as local physicians are hesitant to testify against their peers.  Further, because medical providers are often placed in a position where they must make judgement calls about your care and treatment, it is not axiomatic that an errant call is a violation of the standard of care.

Additionally, the quality, size and location of the hospital may impact the applicable standard of care. For example, what might be negligence at the Mayo Clinic may not be medical negligence at a hospital located in rural Arkansas. Stated simply, as the size of the locality and hospital increases, so does the expectation as to the quality of treatment received. Likewise, the “standard of care” rises in large facilities and cities. Therefore, depending upon the state where you live, we might also have to find a medical provider that is familiar with standard of care in the location where you received treatment. In such cases then, we may not be to retain a physician who practices medicine in New York City to testify in a case that occurred in a city of 5000 people.

Causation-

We next examine the case to ascertain whether the violation of the standard of care “caused” the bad result. Again, a qualified expert must be willing to testify that but for the violation of the standard of care, your outcome would have been different. For example, if a physician failed to diagnose liver cancer resulting in death, he may have fact been negligent. However, it may be difficult to find a physician who would testify that the outcome would have been different, i.e., the negligence caused the death,  as liver cancer is 99% fatal. In a case such as this, it was not the physician’s failure to diagnose the cancer that resulted in the death; rather, it was the cancer itself. In short, there can be no intervening or “other” cause that resulted in the bad result. We will gather information about your entire medical history to assist us in elimination of “other causes.”

Damages-

Finally, we examine the extent to which you have been damaged and whether these damages were actually caused by the negligence. Typical examples of damages are death, amputation, brain damage, lost wages, the costs of past and future medical expenses, pain and suffering, and scarring and disfigurement. Any damages that we assert on your behalf must be directly caused by the negligence. For example, if you were retired when the negligence occurred, you could not recover “lost wages” as you were not a wage earner when the negligence occurred. In other words, it was your retirement that caused you to lose your wages, not the medical negligence. We will ask you to provide us with photographs of the victim, tax returns and other similar items to establish your damages.

If you have been rendered disabled or in need of vast future medical costs or care, we may hire a life care planner to calculate your damages. The life care planner will ultimately prepare a life care plan for you. The LCP will outline the costs of future medical expenses and needs, transportation, housing and other special needs that are required due to your disability. We may also hire an economist to calculate your future lost wages. Finally, we may also hire a vocational rehabilitation expert to assist you finding new employment or in determining even if you are employable with your injuries.

Subjective Factors-

Finally, we analyze your case based upon subjective factors. These items are too voluminous to list. Examples are where the case would have to be filed (venue), the stress that litigation places upon the family, the willingness of family members to participate in the case, the costs to prepare the case relative to the total damages, recent jury verdicts in your county, availability of insurance and the collectability of any verdict and a host of other factors.

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