Will an Attorney Take My Medical Malpractice Case?
Statistics indicate that anywhere from 100,000 – 400,000 people are killed in hospitals every year by medical mistakes. These mistakes range from a patient being given the wrong medication or a slip with a scalpel during a complicated operation. As a result of the various complexities involved in a medical malpractice case, lawyers must be very careful when evaluating potential cases. So how do lawyers decide if someone has a valid medical malpractice case?
One of the first issues that medical malpractice lawyers consider are the suspicious circumstances that lead someone to think malpractice may have occurred. The suspicious circumstances can be as simple as a sudden and dramatically unexpected result from a routine medical procedure. For example, if someone dies on the operating table when having a simple operation, such as an appendectomy, that would raise suspicion that something went wrong. Simply put, a very bad result from a procedure that was supposed to be low risk raises suspicion that something unusual happened.
Another suspicious circumstance would be a doctor not advising his or her patient about a bad outcome that resulted from a procedure. Doctors are supposed to advise patients about the risks of medical procedures and the alternatives to the procedure that may be less risky. This is called "informed consent." Informed consent is a requirement of medical practice that gives patients the opportunity to balance the risks of a medical procedure against the potential benefits of the procedure. Failing to do this can potentially result in a malpractice claim.
A skilled malpractice lawyer will want to know all of the circumstances leading up to the suspicious event. Sometimes there are other clues such as comments made by the doctor or medical staff members after the unfortunate and unexpected result of a medical procedure. In a perfect world, doctors would notify patients or their family if a mistake has been made. Unfortunately, not everyone in the medical field will step forward and take responsibility for mistakes. Sometimes doctors or staff members actively conceal the evidence of a mistake by failing to record all the information in the medical records. Additionally, test results are sometimes misplaced or destroyed.
When an attorney determines that there are suspicious circumstances concerning a bad outcome of a medical procedure, it doesn’t mean you have a medical malpractice case. It means the attorney has identified enough red flags to investigate your case further. Under these circumstances, the attorney will want to gather the medical records to continue the investigation. Sometimes the existence of a medical mistake or medical malpractice will actually be very clear in the records even though it might be disguised in medical terminology. If there are sufficient indications that there was some type of medical malpractice, a skilled malpractice attorney will then have the medical records reviewed by a practicing medical professional to determine if malpractice actually occurred.
Just because there has been a bad result does not always mean that there has been medical malpractice. The standard for deciding if there has been malpractice is one that varies from medical specialty to medical specialty. The basic test is whether or not the doctor or health care professional involved performed within the "standard of care."
The “standard of care” simply means that the medical professional is required to perform at a level comparable to a reasonable and prudent professional within that specialty. Lawyers sometimes like to call that a "C student" standard. In other words, the medical professional isn't required to perform at the level of the medical "superstar" level. Doctors must only perform at the level of an average doctor in the community. Each doctor is not expected to perform at the “best doctor in the world” standard.
An easy way to think about the test for medical malpractice is to compare the level of skill required when you drive a car. As a driver, we are not required to have the reflexes of a professional race car driver to avoid an accident. We are simply expected to exercise the caution of an average, reasonable and prudent driver. In a similar manner, doctors are required to exercise the skill and care of a reasonable and prudent doctor.
However, in medicine, just like in driving, there are some circumstances that do not have black and white rules. Driving rules require all drivers to drive in a reasonable and prudent manner in consideration of all the conditions that exist. The standards for medical professionals can be similar and the judgment of whether someone is negligent depends upon the particular circumstances surrounding the behavior involved.
Another factor attorneys consider when examining a potential medical malpractice claims is "how will this claim make the community safer?" Unsafe medical procedures and medical professionals operating at an unsafe level should be brought to the attention of the insurance companies and the supervisors of the medical personnel involved. If they are not, the mistakes may continue into the future and others may be harmed. Many current medical safety procedures are in place as a result of patients who did not remain silent and brought claims for the harm caused. These claims then led to improved safety measures to avoid future harm to others from the same unsafe conditions. By making a claim, you can, at times, make the medical community a safer place for all patients.
Doctors, like other occupations or professions, sometimes operate at a dangerous level of carelessness and should not be practicing their occupation. Doctors are human and some of them have emotional problems, drug addictions, or simply the effects of advanced age have diminished their mental and physical skills. Sometimes, the medical mistake is simply a matter of momentary inattention just like some good drivers occasionally run a red light because they are distracted. Nearly all medically valid malpractice claims are paid by insurance policies and not by the involved medical professional.
The majority of medical malpractice claims do not result in lawsuits. Skilled attorneys make sincere efforts to settle each case with the doctor's insurance company without the necessity of litigation. Lawsuits are expensive and time consuming and it is in everyone's interest to settle them when malpractice is clear. The decision to file a lawsuit is always made by the client. Lawsuits are never filed without the client's permission. Sometimes, however, insurance companies and their lawyers chose not to take full responsibility for the harm they have caused and fail to make a reasonable settlement offer. Under these circumstances, clients may choose to file a lawsuit if they want to be fully compensated for the harm caused.
Oregon has some new laws that encourage doctors to report mistakes to patients and the law provides for a simplified procedure to resolve claims for medical mistakes without the necessity of filing a lawsuit. If you have been told that there has been a mistake, consulting a skilled malpractice lawyer is recommended because it is difficult to decide what would be adequate compensation for the results of a medical mistake without the skilled input of an attorney who understands the value of malpractice claims and the options to settling a case without filing a lawsuit.
Our philosophy at Nelson MacNeil Rayfield is that if you suspect that there might be medical malpractice, it does not hurt to ask some questions and have a preliminary review by an attorney. There is no cost to have your case initially reviewed by an attorney. We have found that some people end up blaming themself for not looking into a potential issue once it’s too late. There is also much greater piece of mind if you look into a potential case and are told that there is no evidence of malpractice. You can then put the matter to rest and move on with your life. If you do have a legitimate case and decide to pursue it, attorneys will usually represent you or your family member on a percentage or contingency fee arrangement.