While everything that Legal Beagle said is true in some contexts, I would suggest that in fact medical malpractice is probably once of the best vehicles of all for a lawsuit, so long as a single factor is present – the patient has suffered a very serious injury.

      So long as the injury can be valued in the mid to upper hundred thousands, you are not going to have any problem getting a lawyer to take a case on a contingency, regardless of whether the doctor was really negligent, regardless of whether you have agreed to arbitration, and regardless of signing that informed consent form.

     The reason is that the real target in these lawsuits is not the doctor at all but his liability insurer. The sad truth is that no matter how much care the doctor exercised, or how clearly you were informed of the risks of the procedure, there is a cottage industry of  medical “experts” who will testify that the doctor failed to confirm to the standard of care or that the risk disclosure to you was insufficient.

      The liability insurer knows that, unless the doctor has some crystal  clear defense as a matter of law, it is almost always cheaper to settle within  the policy limits than it is to pay for the doctor’s defense at trial or arbitration and then pay a possible multi million dollar judgment or up to the policy limits. Your lawyer knows this as well as that is why he is willing to spend $100,000 of his funds to have  shot at 40% of a multi million dollar settlement or judgment.

     But just be sure that the doctor who injures you has insurance. If he’s going bare, as a few do, it is a whole different story.

A few comments on malpractice cases

I did not comment when Oral Godess, (what a lovely name!) told us her trials and tribulations with her serious injury. Many readers gave sympathetic and well-reasoned medical advice—very pleasing to see the troops rally!

Let me make a few comments about the legal aspects of malpractice, i.e. when a doctor makes a medical error that is actionable by the patient.

When OG made her remarks and illustrated them, I was struck with the question of malpractice immediately.
Now we read every day of big settlements but these are difficult cases to proceed with.

As soon as you enter into a relationship with a doctor or a hospital, they give you a bunch of documents whereby you sign away the right to sue and agree to arbitration. If you do not sign them you will be refused treatment. Nothing you can do about that. I would suggest signing in script, “do not agree” in an illegible scrawl. They rarely check signatures. That is an old lawyers  trick!

NEXT they will give you documents before they operate or treat you that inform you that medicine is an art and there are many possible things that can go wrong. Once you sign that one you have admitted that you know the risks. If something normal goes wrong you have little basis for complaint. That is part of what makes it difficult to sue for malpractice, as infection is a recognized potential outcome, more so today then ever before.

Now, unsanitary conditions are reason to sue, but how do you prove that was the case. If you can prove in the most specific details that the O.R. was unsanitary you might have a case but you would do most of the leg work yourself unless the damages were so high that a lawyer will hire an investigator.  Most medical malpractice cases are presented to a lawyer who works on a contingency, usually this is regulated by the state but usually amounts to 30-40% of the award after all expenses. As even a simple case is expensive to proceed,  you must have a very strong case in order to convince a lawyer that there is merit to the case.

If you are a frequent litigant this will be made public in court. If you are a felon or a sex worker, you will not be able to hide this fact and it will work against you and used to discredit you and place your integrity in issue. Your arrest record, if there is one, may also be dragged in as well as adverts or photos of you in work dress or undress with tits hanging out as well as any other part of your anatomy that has served you in advertisements on CL, Backstreet or Eros.

If you are well educated and/or intelligent you should start by trying to document the case. Check what the standards of care are, check if there have been any state inspections of the facility that did not receive a good report, check the credentials and names of the people who treated you. Ask for copy of medical records dealing with your treatment. Finding online medical malpractice cases against the people who treated you is helpful but may not be admissible in court.

This research will help you be prepared to argue a lawyer into representing you. This is very difficult area of the law and not easy to represent yourself with out a lawyer as the opposition will laugh and sneer and block you at every corner. With a valid adversary they might settle. But the road ahead is long and tedious and filled with pitfalls so be forewarned.

Now the whole basis of this type of suit is damages, how bad is your damage? Let’s get down to brass tacks, is you injury worth a suit? Every piece of the body has a value, check it out, unless it is an important part the actuary tables will list it as low. Penis is worth a lot, finger tip, nope; unless you are a brain surgeon who needs it to operate.  Big punitive payments? They are always in the news but involve tort actions as a rule, not medical malpractice. It has to be outrageous before the judge will allow "punitives" to be tagged onto a malpractice case. Sad to say, but even a whole leg lost might be worth more hanging in a butcher shop then in a malpractice case unless you have it all going for you, and the movement today is to lessen medical liability under state and federal law.


-- Modified on 12/5/2010 7:43:53 AM

Some facts on med mal, unlike much of what has been presented here:

1. Doctors do, unfortunately, make more mistakes than those for which they are held accountable.

2. The standards to prove negligence are much higher than either of these two folks say.  Insurance companies vigorously defend unless the smoking gun of negligence is still hot.

3. While insurance carriers do settle often, it is only for a fraction of the cost of the actual damages expected and then only if they sure they will not prevail.

4. Many more nuisance cases are brought and complaints filed than legitimate ones.  This is really sad given the truth of statement 1 above.

5. Anyone who thinks that rolling the dice on medical malpractice is any more automatically a good bet than keno knows nothing about med mal, medicine, law, or keno.

This response is indicative of the problem that is destroying our society. There is no longer accountability (we are not even allowed to participate in a harmless hobby!!). To sue a doctor because his/her insurance carrier will pay in the absence of liability is disgusting. I have tremendous respect for MDs who try their best. Gross negligence is a different story, but as a society we are doomed if we continue to allow people to abuse the legal system to enrich themselves just because they can. The same argument can be made for suing your neighbor (Their homeowners policy will cover it). It is personal, and it is a disgrace.

Doctors have the right to defend in most cases, despite the fact that a settlement may be cheaper. The cottage industry of experts is being attacked, and countersuits for frivolous claims, while difficult to prove, are costly to the original plaintiff.

We would do much better as a society if we all stopped looking for blame, and trying to win the lottery.

Malcolm Gladwell made some interesting points in his book 'Blink' when he claims (with studies to back him up) that a good predictor of how often a dr gets sued is not how many mistakes he makes, but by his bedside manner. Drs who routinely make major mistakes rarely get sued when they are the kind of people who go out of their way to develop rapport with their clients.