“WHY MEDICAL MALPRACTICE CASES ARE DIFFICULT TO WIN AND WHAT YOU CAN DO TO AVOID BEING A VICTIM OF MALPRACTICE”
The attorneys at Lafferty, Gallagher & Scott, LLC have exclusively represented victims of medical malpractice, negligent drivers and defective products collectively for 100 years. During this time, many of our cases have involved victims of medical malpractice.
At Lafferty, Gallagher & Scott, we recognize the serious nature of medical malpractice claims both from the patient’s/client’s perspective and the medical profession’s perspective.
No one deserves to be sued in any type of case unless they did something wrong. Most members of the medical profession- doctors, nurses, etc. are competent and caring professionals who provide great care to their patients. However, like any profession, there are some members of the medical profession who do not provide competent and prudent care to their patients. If they do not, they should be held accountable for the harm they have caused their patients and the harm they cause society as a whole through increased health care costs. In fact, recent studies suggest that medical errors that harm patients cost health insurance companies $17.1 billion annually, which is passed on to society through increased premiums. (http://www.msnbc.msn.com/id/42472228/ns/health-health_care/)
Independent and non-partisan studies have shown that approximately 100,000 patients die each year in hospitals due to medical malpractice. Thousands more each year are permanently injured as a result of medical malpractice. By way of comparison, only 40,000 people die each year as a result of automobile accidents.
Based upon the statistical evidence, you would think that a victim of medical malpractice would have a better than even chance of winning his/her medical malpractice case if it proceeds to court. However, the exact opposite is true. In Ohio, over 85% of medical malpractice cases that do proceed to trial result in a verdict for the doctor or the hospital.
Some would say that the reason for this is that the medical malpractice cases that proceed to trial are frivolous. Actually, this is not true and, for reasons that will be explained, very few frivolous medical malpractice cases are ever filed. And those that do get filed usually are dismissed before the case proceeds to trial.
Why then do doctors and hospitals have such an overwhelming success rate in medical malpractice lawsuits? There are number of reasons for this, some of which are discussed in the balance of this article.
MISINFORMATION CAMPAIGN FINANCED BY THE INSURANCE INDUSTRY
For the last four decades, the insurance industry has spent millions on a ‘misinformation propaganda’ campaign regarding medical malpractice claims. Most, if not all, of the information disseminated to the public by the insurance industry is simply untrue and not supported by independent non-partisan studies.
The following are a few examples of some of the bigger untruths regarding medical malpractice that have been perpetrated upon the public by the insurance industry:
1) Doctors are leaving Ohio because they cannot get medical malpractice coverage, or their premiums are too high.
When asked to prove this statement, the insurance industry is unable to do so and there is no documented evidence in the State of Ohio to support this allegation.
2) Doctors are closing their offices because they cannot get medical malpractice coverage, or it is too expensive.
Again, when asked to prove this allegation, the insurance industry is unable to do so and has been unable to present any evidence to support this allegation.
3) Doctors, because of their fear of medical malpractice suits, practice defensive medicine and “order unnecessary tests,” thereby increasing the cost of health care.
Once again, when asked to prove this allegation, the insurance industry is unable to produce any independent non-partisan studies to support this.
4) There are too many medical malpractice lawsuits filed, many of which are frivolous.
Statistical records kept by the Ohio Supreme Court regarding civil case filings in Ohio prove that this allegation is simply untrue.
The following chart is a summary of statistics kept by the Supreme Court of Ohio regarding civil cases filed from 1999 through 2009. Civil cases include evictions, foreclosures, product liability, professional torts (which include not only cases filed against doctors/hospitals but also attorneys and accountants), personal injury or property damage claims and Workers Compensation claims.
Year Total Civil Cases Professional Tort Cases % of Total Cases
1999 466,906 3,138 0.67%
2000 488,084 3,203 0.66%
2001 595,688 3,175 0.53%
2002 649,905 3,448 0.53%
2003 713,888 3,250 0.46%
2004 726,961 2,694 0.37%
2005 733,116 2,500 0.34%
2006 748,547 2,037 0.27%
2007 783,905 1,864 0.24%
2008 828,648 1,719 0.21%
2009 752,884 1,705 0.23%
The above-referenced statistics kept by the Supreme Court of Ohio prove that for the 10 year period between 1999 and 2009, medical malpractice cases filed in the State of Ohio were less than 1% of all civil cases filed.
For comparison purposes, here is what the Supreme Court of Ohio statistics show regarding the percentage of evictions and foreclosures filed in the State of Ohio for the same period of time:
Not surprisingly, there has been no effort made by the insurance industry, or corporate America, to limit the number of evictions and foreclosure cases that are filed in the State of Ohio.
Regarding frivolous medical malpractice cases, there may be a few filed by incompetent attorneys. No competent attorney in the State of Ohio would file a frivolous medical malpractice case, simply because they are too expensive and too time consuming.
JURIES ARE BIASED IN FAVOR OF DOCTORS AND HOSPITALS
(UNTIL PROVEN OTHERWISE)
Because of the millions of dollars spent by the insurance industry to denigrate medical malpractice claims, it is not surprising that most jurors who are called for jury duty in medical malpractice cases are biased in favor of doctors and hospitals. In studies conducted of prospective jurors nationwide, it has been found that when they are called to serve in a medical malpractice case, 85% of them believe that the doctor or the hospital is the victim, not the patient.
In our personal experience, during questioning of prospective jurors, the majority feel that there are too many malpractice cases filed, that many of them are frivolous, and that many patients bring medical malpractice cases in the hopes of winning the lottery. Although none of the foregoing is true, it is very difficult to change jurors’ opinions during the course of the trial.
Because of jury bias, it is extremely important that a victim of medical malpractice be represented by competent and experienced legal counsel who knows how to expose biases during the questioning of the prospective jurors, in order that these biases may be exposed and overcome.
MEDICAL MALPRACTICE CASES ARE EXPENSIVE CASES TO INVESTIGATE AND LITIGATE
By law, in every medical malpractice case filed in the State of Ohio, it is necessary that the injured patient present testimony from a doctor, or doctors, that the defendant doctor(s) and/or hospital, were negligent and that their negligence caused the patient’s injury or death.
In fact, a medical malpractice case cannot even be filed in Ohio without an Affidavit of Merit being supplied by a doctor, or doctors, stating that they have reviewed the patient’s records, that they are familiar with what the standard of care is for the defendant doctor(s) and that the defendant doctor(s) violated the standard of care - i.e., were negligent and that this negligence caused the patient’s injuries or death.
It is, therefore, necessary for the attorney representing the injured patient to obtain the patient’s medical records, x-rays, etc., and have them reviewed by a qualified doctor, or doctors, to determine whether there is negligence and whether the negligence caused injury or death. Doctors and hospitals are entitled to charge a fee for copying the injured patient’s records. Sometimes these records are voluminous and cost hundreds, if not thousands, of dollars.
Once the records, x-rays, etc., are obtained, the attorney representing the injured party must send those records to a qualified physician in order to obtain his or her opinions as to whether or not a valid medical malpractice claim exists. These physicians are going to charge for their time in reviewing the patient’s records and rendering their opinions to the patient’s attorney. It is not unusual for most experts to charge anywhere from $1,500.00 to $5,000.00 to review a patient’s records and to give his/her opinions.
Many times, it is necessary for the patient’s attorney to obtain opinions from more than one expert. For example, a patient goes to the emergency room for a suspected heart attack. He is examined by the emergency room physician who orders an EKG. The emergency room physician misreads the EKG as being normal when, in fact, it shows that the patient is having a heart attack. The emergency room physician sends the patient home. The next day, a cardiologist looks at the patient’s EKG, and also misinterprets it as being normal. One day later, the patient dies of a heart attack.
In a case like this, it will be necessary for the patient’s attorney to obtain two expert physicians - opinions from an emergency room physician to testify that the treating emergency room physician was negligent, and opinions from a cardiologist to testify that the treating cardiologist was negligent, and that earlier diagnosis and treatment of the patient’s heart attack would have prevented his death.
It is not unusual in a complicated medical malpractice case for the patient’s attorney to have to present testimony from four or five different expert physicians. The more experts necessary to prove the case, the more expensive the case becomes to investigate and litigate.
Even in a simple medical malpractice case, the patient’s attorney can incur expenses of $10,000 to $15,000 to try the case. In some complicated medical malpractice cases, with multiple experts, it is not unusual for the patient’s attorney to incur expenses through trial of $80,000 to $100,000.
It is a common defense tactic of attorneys defending doctors and hospitals to attempt to make a patient’s medical malpractice case more complicated than it is. If the patient’s attorney has one expert, defense counsel will obtain two experts. If the patient’s attorney has two experts, defense counsel will obtain four experts.
Since medical malpractice cases are so expensive to investigate and pursue, no competent attorney representing patients in medical malpractice cases would take a frivolous case. In fact, most competent attorneys representing injured patients will not even take medical malpractice cases where there is clear malpractice but no significant injury. If there is no significant injury, any settlement or jury verdict would be minimal, resulting in little, if any, monetary benefit to the injured patient.
At Lafferty, Gallagher & Scott, if the patient has a valid medical malpractice claim and serious permanent injuries, or if a loved one has died, we are willing and able to spend the time and money needed to prove your medical malpractice case.
TORT REFORM HAS CHANGED EVERYTHING
On April 11, 2003, the State of Ohio passed so-called “medical malpractice reform.” This comprehensive legislation significantly tilted the scales of justice in favor of insurance companies, doctors and hospitals. Although there are many bad things in this law affecting the rights of victims of malpractice, the worst change is that there is now a limitation in Ohio on the amount that an injured patient can recover for non-economic loss (pain and suffering). Specifically, the law limits the amount of damages (money) for non-economic loss (pain and suffering) that is recoverable in a medical malpractice case as follows:
1) Generally, the greater of $250,000.00 or an amount equal to three times the Plaintiff’s (patient’s) economic loss as determined by the trier of fact (jury), to a maximum of $350,000.00 for each Plaintiff, or a maximum of $500,000.00 for each occurrence; or
2) $500,000.00 for each Plaintiff, or $1,000,000.00 for each occurrence, if the injuries are catastrophic.
The law defines “catastrophic” injuries as those involving permanent and substantial physical deformity, loss of use of a limb, loss of a bodily organ system, permanent physical functional injury that permanently prevents the injured person from being able to independently care for his or her self and perform life-sustaining activities. The law further provides that the jury in determining the amount of non-economic loss to be awarded to the injured patient is not to be told about the limits on money recovered for non-economic loss. Apparently, the Ohio legislature, when it passed this law, did not trust the jurors, who elected them, to determine in a fair and impartial manner the amount of money that the injured patient should receive for his/her pain and suffering.
If the jury awards more for non-economic loss than allowed by statute, the judge will then reduce their verdict to the applicable amount, i.e., $250,000.00 or $500,000.00.
Imagine that you are a 25 year old male or female who becomes a quadriplegic as a result of clear medical malpractice. Further, imagine that you have a normal life expectancy of 75 years despite the quadriplegia (which is not unusual with modern medicine). The maximum that you can receive under Ohio law for your pain, suffering, emotional distress, inconvenience, and the inability to perform the activities of daily living, is $500,000.00. This amounts to only $10,000.00 per year for the remainder of your life. Does this sound unfair? It is.
Even more unfair in the above example is that the future cost of the patient’s medical care is probably going to be passed on to Medicaid or Medicare. Guess who pays for Medicaid and Medicare…you, the taxpayer. This law shifts responsibility for the negligent care and injury from the physician and his insurance company to the tax payer.
Because of the limitations placed on non-economic loss, most competent medical malpractice lawyers who represent injured patients in Ohio cannot take a case unless the prospective client is dead, dying or disabled. Because of the limitations on non-economic damages and the cost involved in pursuing medical malpractice cases, benefits of pursuing some claims are outweighed by the cost, which is exactly what the insurance industry wanted when it pushed for the so-called “medical malpractice reform” laws.
REGARDLESS OF THE PROBLEMS INVOLVED IN PURSUING MEDICAL MALPRACTICE CASES, THERE IS SOME HOPE.
First of all, the Supreme Court of Ohio has yet to rule on the constitutionality of the 2003 Medical Malpractice Reform Act. Three prior Medical Malpractice Reform Acts, much similar to this one, were declared unconstitutional by prior Supreme Courts.
Even though these cases are difficult and expensive to pursue, we at Lafferty, Gallagher & Scott are still taking these cases and are having success for our clients. Below is a listing of medical malpractice cases that have been handled by Lafferty, Gallagher & Scott since April of 2003 that have resulted in favorable settlements or verdicts for the injured patient.
$2.7M Settlement: Failure to timely diagnose a cord compression from a herniated disc, resulting in paraplegia
$725,000 Settlement: Wrongful Death following failure to diagnose a myocardial infarction (heart attack)
$450,000 Settlement: Failure to diagnose breast cancer
$400,000 Settlement: Infant Wrongful Death due to medical malpractice during delivery
$250,000 Settlement: Negligent extrication of chemotherapy medication, resulting in severe burns and permanent scars
$225,000 Settlement: Failure to diagnose acute myocardial infarction in emergency room
HOW TO PROTECT YOURSELF FROM MEDICAL MALPRACTICE
Below is a brief list of things that we suggest you do for yourself and your family to avoid becoming victims of malpractice:
1) Obtain copies of your medical records and read them. Particularly, get copies of your medical records from your primary care physician (PCP) or family physician. If you have been hospitalized, it is not necessary that you obtain your entire hospital chart. A copy of your admission summary and discharge summary is probably sufficient. Many times, your PCP or family physician will give your records to you without charging a copying fee. Hospitals do charge a retrieval fee and copying fee, but if you just obtain your admission and discharge summary, that expense will be minimal. After you have assembled your records, read them and learn the medical terminology by getting on the internet or looking at a medical dictionary. If you change your PCP or family physician, take copies of your records with you and review them with your new PCP or family physician. Also, have your new PCP or family physician make copies of these records and put them in your chart. If you are going to a specialist for a consultation, again take copies of your records with you, discuss them with the consulting physician, and have him/her make copies of your records for their chart.
2) Before seeing a doctor, make a written list of questions to ask him/her, give him/her a copy of the list and write down his/her answers to your questions. If the doctor is unwilling to take the time to discuss your questions and answer them, find a new doctor.
3) Get a good PCP or family physician as your doctor. To find a good PCP or family physician, ask your friends, neighbors and other doctors who they would recommend. Because a good PCP or family physician is going to know you better than any consulting physician, discuss with your PCP or family physician any recommendations made by a consulting physician.
4) Do not always accept the results of medical tests as being correct. For example, if you are biopsied for cancer and the pathology report shows that you do not have cancer, request that the pathology slides be reviewed by a second pathologist. Many pathology studies are misinterpreted.
5) If you need surgery, check the surgeon out. Of course, ask your PCP, or family physician, who he/she would recommend. Do not stop there. Also ask friends, neighbors, relatives and other physicians that you might know. Ask your PCP or family physician who they would have perform the surgery on them or a member of their family. When you meet with the surgeon, bring a written list of questions, make him/her answer the questions and write his/her answers down. Always ask the surgeon if he/she is board certified by his/her surgical specialty group. If the surgeon is not board certified, find a new surgeon. Make the surgeon explain to you in layman’s terms the surgery that he/she is recommending, why he/she is recommending it, what the expected outcome of the surgery is, and the risks and complications of the surgery. Ask how many times he/she has performed the surgery and what his/her success rate is with the surgery. Also ask what his/her mortality, morbidity and infection rate is. Likewise, ask him/her what the infection rate is at the hospital, or facility, where he/she will perform the surgery.
Also, look up information about the doctor on the internet. There are many websites out there, such as www.healthgrades.com, that provide helpful information about the doctor and reviews from former patients.
6) When hospitalized, make sure that you have a family member or other advocate available to you to speak on your behalf. In the immediate post-operative period, most patients, for obvious reasons, are not capable mentally or physically of making good decisions on their behalf, or speaking on their own behalf. In our experience, most medical malpractice in hospitals occurs between Friday and Sunday. This is because most hospitals are understaffed on these particular days and many diagnostic tests are not available on weekends. After major surgery, if complications develop, it is wise for a family member to be in the hospital with you at night to make sure that any problems are promptly addressed by the nursing and hospital staff.
We hope these tips will be helpful to you and your family members in avoiding medical malpractice. We have used these tips in our own care and treatment, as well as care and treatment of our loved ones. These tips have worked for us in obtaining the best medical care, and we believe they can do the same for you.
This report contains general legal and other information that we prepared to be helpful to consumers. It is NOT intended to be legal advice about your particular case or any other similar case, and you should NOT rely upon it in any manner. In fact, because some of the laws referred to can change or be interpreted differently by judicial decisions, it is all the more reason why it should be considered general information only.
Furthermore, each case is uniquely different. Past results do not guarantee future results, and results in one state or even one county may differ. We do not win all of our cases. In fact, no attorney or firm wins all of their cases. For ALL these reasons, we encourage you to consult with an experienced attorney or firm in your area. There is no attorney-client relationship between the reader and Lafferty, Gallagher & Scott, LLC in the absence of a formal fee agreement signed by attorney and client.