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2/4 Medical Malpractice
Legal Information		 3/4
Welcome to my compendium website on Medical Malpractice Legal Information. Medical malpractice is an act or omission by a health care provider which deviates from accepted standards of practice in the medical community and which causes injury to the patient.

Simply put, medical malpractice is professional negligence (by a healthcare provider) that causes an injury. Health care providers subject to liability for negligence include physicians and their assistants, nurses, pharmacists, hospitals, or skilled nursing facilities.

" I predict that by May 10, 2017 it will become standard in at least one state that any doctor that does not prescribe nutrition control in cancer treatment will be subject to being guilty of malpractice.
Brian Nelson"

This site includes information about:  Medical Malpractice, physicians assistants, nurses, pharmacists, hospitals, skilled nursing facilities, Dentists, Doctors, Negligence, Mal Practice, Attorney, Lawyer, Statutes of Limitations, Contributory or Comparative Negligence, Joint and Several Liability, Contribution, Vicarious Liability, Expert Testimony, Damage Caps, Statutory Cap, Attorneys' Fees, Periodic Payments, Collateral Source Rule, Pre-Judgment Interest, Patient Compensation Funds and Physician Insurance, Immunities and  Arbitration.
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Medical malpractice is an act or omission by a health care provider which deviates from accepted standards of practice in the medical community and which causes injury to the patient. Simply put, medical malpractice is professional negligence (by a healthcare provider) that causes an injury. Health care providers subject to liability for negligence include physicians and their assistants, nurses, pharmacists, hospitals, or skilled nursing facilities.

In the United States and other countries, a specific medical malpractice law has developed. In English law, the issue of liability is a subset of professional negligence where, under the Bolam Test, a doctor will be liable unless shown to have acted in accordance with a reasonable body of medical opinion. In Australia, this test has been replaced but the principles are comparable.

Contents

Common types of medical malpractice

Malpractice is not limited to surgical errors. Some of the more common forms of malpractice include the following :

  • Misdiagnosis of an illness, failure to diagnose or delay of a diagnosis
  • Errors resulting in birth injuries
  • Surgical errors
  • Improper prescription or administration of medication
  • Inappropriate or substandard treatment
  • Failure to properly follow-up on a patient
  • Lack of informed consent
  • Improper administration of anesthesia
  • Preventable patient injuries ( such as falls ) on medical facility property

The medical malpractice claim

The parties

The plaintiff is the patient, a legally designated party acting on behalf of the patient, or by the executor or administrator of a deceased patient's estate (in the case of a wrongful death suit).

The defendant is the health care provider. Although a 'health care provider' usually refers to a physician, the term includes any medical care provider, including dentists, nurses, and therapists. Relying on vicarious liability or direct corporate negligence, claims may also be brought against hospitals, clinics, managed care organizations or medical corporations for the mistakes of their employees.

Elements of the case

A plaintiff must establish all four of the following elements, for a successful medical malpractice claim.[1]

  1. A duty was owed - a legal duty exists whenever a hospital or health care provider undertakes care or treatment of a patient.
  2. A duty was breached -- the provider failed to conform to the relevant standard of care. The standard of care is proved by expert testimony or by obvious errors (the doctrine of res ipsa loquitor or 'the thing speaks for itself').
  3. The breach caused an injury -- The breach of duty was a proximate cause of the injury.
  4. Damages -- Without damages (losses which may be pecuniary or emotional), there is no basis for a claim, regardless of whether the medical provider was negligent.

The trial
Like all other tort cases, the plaintiff (or the plaintiff's attorney)files a lawsuit in a court with appropriate jurisdiction. Between the filing of suit and the trial, the parties (or their attorneys) are required to 'share information' through a process known as discovery. Such information includes interrogatories, requests for documents, and depositions. If both parties agree, the case may be settled early on negotiated terms. If the parties cannot agree, the case will proceed to trial.

The plaintiff has the burden of proof to prove all the elements by a preponderance (51%) of evidence. At trial, both parties will usually present experts to testify as to the standard of care required, and other technical issues during trial. The fact-finder (judge or jury) must then weigh all the evidence and determine which is the most credible.

The factfinder will render a verdict for the prevailing party, and asseses the compensatory and punitive damages, within the parameters of the judge's instructions. The verdict is then reduced to the judgment of the court. The losing party may move for a new trial. In a few jurisdictions, a plaintiff who is dissatisfied by a small judgment may move for additur. In most jurisdictions, a defendant who is dissatisfied with a large judgment may move for remittitur. Either side may take an appeal from the judgment.

Expert testimony
Expert witnesses must be qualified by the Court, based on the prospective experts qualifications and the standards set from legal precedent. To be qualified as an expert in a medical malpractice case, a person must have a sufficient knowledge, education, training, or experience regarding the specific issue before the court to qualify the expert to give a reliable opinion on a relevant issue. The qualifications of the expert are not the deciding factors as to whether the individual will be qualified, although they are certainly important considerations. Expert testimony is not qualified "just because somebody with a diploma says it is so" (United States v. Ingham, 42 M.J. 218, 226 [A.C.M.R. 1995]). In addition to appropriate qualifications of the expert, the proposed testimony must meet certain criteria for reliabilty. In the United States, two models for evaluating the proposed testimony are used:

The more common (and some believe more reliable) approach used by all federal courts and most state courts is the 'gatekeeper' model, which is a test formulated from the US Supreme Court cases Daubert v. Merrell Dow Pharmaceuticals (509 U.S. 579 [1993]), General Electric Co. v. Joiner (522 U.S. 136 [1997]), and Kumho Tire Co. v. Carmichael (526 U.S. 137 [1999]. Before the trial, a Daubert hearing[2]will take place before the judge (without the jury). The trial court judge must consider evidence presented to determine whether an expert's "testimony rests on a reliable foundation and is relevant to the task at hand." (Daubert, 509 U.S. at 597). The Daubert hearing considers 4 questions about the testimony the prospective expert proposes:

  • Whether a "theory or technique . . . can be (and has been) tested"
  • Whether it "has been subjected to peer review and publication".
  • Whether, in respect to a particular technique, there is a high "known or potential rate of error"
  • Whether there are "standards controlling the technique's operation".

Some state courts still use the Frye test that relies on scientific consensus to assess the admissibility of novel scientific evidence. Daubert expressly rejected the earlier federal rule's incorporation of the Frye test. (Daubert, 509 U.S. at 593-594) Expert testimony that would have passed the Frye test is now excluded under the more stringent requirements of Federal Rules of Evidence as construed by Daubert.

In view of Daubert and Kuhmo, the pre trial preparation of expert witnesses is critical.
Damages
The plaintiff's damages may include compensatory and punitive damages. Compensatory damages are both economic and non-economic. Economic damages include financial losses such as lost wages (sometimes called lost earning capacity), medical expenses and life care expenses. These damages may be assessed for past and future losses. Non-economic damages are assessed for the injury itself: physical and psychological harm, such as loss of vision, loss of a limb or organ, the reduced enjoyment of life due to a disability or loss of a loved one, severe pain and emotional distress. Punitive damages are only awarded in the event of wanton and reckless conduct.

Statistics on malpractice and preventable medical error
Medical error

In the United States medical error is estimated to result in 44,000 to 98,000 unnecessary deaths and 1,000,000 excess injuries each year.[1][2] It is estimated that in a typical 100 to 300 bed hospital in the United States, excess costs of $1,000,000 to $3,000,000 attributable to prolonged stays and complications just due to medication errors occur yearly.

Medical care is frequently compared adversely to aviation, in that, while many of the factors which lead to error are similar, aviation's error management protocols are much more effective.[3]

Contents

Epidemiology of medical error

Medical errors are associated with inexperienced clinicians, new procedures, extremes of age, complex care and urgent care.

Approaches to error

Traditionally, errors are attributed to mistakes made by individuals who may be penalized for these mistakes. The usual approach to correct the errors is to create new rules with additional checking steps in the system, aiming to prevent further errors. As an example, an error of free flow IV administration of heparin is approached by teaching staff how to use the IV systems and to use special care in setting the IV pump. While overall errors become less likely, the checks add to workload and may in themselves be a cause of additional errors.

A newer model for improvement in medical care takes its origin from the work of W. Edwards Deming in a model of Total Quality Management. In this model, systems of care are evaluated for process issues that may contribute to errors in care. As an example, in such a system the error of free flow IV administration of Heparin is dealt with by not using IV heparin and substituting subcutaneous administration of heparin, obviating the entire problem. However, such an approach presupposes available research showing that subcutaneous heparin is as effective as IV. Thus, most systems use a combination of approaches to the problem.

The field of medicine that has taken the lead in systems approaches to safety is Anaesthesiology.[5] Steps such as standardization of IV medications to 1 ml doses, national and international color coding standards, and development of improved airway support devices has made anesthesia care a model of systems improvement in care.

The profession of pharmacy has extensively studied the causes of errors in the prescribing, preparation, dispensing and administration of medications. As far back as the 1930’s, pharmacists worked with physicians to select from many options, the safest and most effective drugs available for use in hospitals [6]. The process is known as the Formulary System and the list of drugs is known as the Formulary. In the 1960’s, hospitals implemented unit dose packaging and unit dose drug distribution systems to reduce the risk of wrong drug and wrong dose errors in hospitalized patients[7]; centralized sterile admixture services were shown to decrease the risks of contaminated and infected intravenous medications[8]; pharmacy computers screened each patient’s medication list for drug-drug interactions[9]; and, pharmacists provided drug information and clinical decision support directly to physicians to improve the safe and effective use of medications[10]. Pharmacists are recognized experts in medication safety and have made many contributions that reduce error and improve patient care over the last 50 years.

A 2005 study by Wendy Levinson of the University of Toronto showed surgeons discussing medical errors used the word "error" or "mistake" in only 57 per cent of disclosure conversations and offered a verbal apology only 47 per cent of the time.
 Examples of errors

  1. Misdiagnosis
  2. Giving the wrong drug or (wrong patient, wrong chemical, wrong dose, wrong time, wrong route)
  3. Giving two or more drugs that interact unfavorably or cause poisonous metabolic byproducts
  4. Wrong site surgery such as amputating the wrong limb

Methods to improve safety and reduce error

  1. patient's informed consent policy
  2. patient's getting a second opinion from another independent practitioner with similar qualifications
  3. voluntary reporting of errors (to obtain valid data for cause analysis)
  4. root cause analysis
  5. systems for ensuring review by experienced or specialist practitioners[12]

See also

Medical malpractice claims can help identify areas where primary health care in the United States needs improvement, according to the American Academy of Family Physicians. The Academy refers to a study entitled "Learning from Malpractice Claims about Negligent, Adverse Events in Primary Care in the United States", in suggesting that the medical community can learn from tort claims. In that study, researchers looked at primary care malpractice claims settled between 1985 and 2000 in the United States. The study focused on a subset of 5,921 claims that were clear errors. The researchers found:

  • 68 percent of the errors were in outpatient settings and resulted in more than 1,200 deaths.
  • Negligence was more likely to have severe outcomes when they occurred in hospitals, but the total number of high severity outcomes and death was larger in the outpatient setting.
  • Of the 10 most prevalent medical conditions with error-related claims, no single condition accounted for more than five percent of all negligent claims.
  • Diagnostic error accounted for more than one-third of the claims.[4]

A recent study by Heathgrades found that an average of 195,000 hospital deaths in each of the years 2000, 2001 and 2002 in the U.S. were due to potentially preventable medical errors. Researchers examined 37 million patient records and applied the mortality and economic impact models developed by Dr. Chunliu Zhan and Dr. Marlene R. Miller in a study published in the Journal of the American Medical Association (JAMA) in October of 2003. The Zhan and Miller study supported the Institute of Medicine’s (IOM) 1999 report conclusion, which found that medical errors caused up to 98,000 deaths annually and should be considered a national epidemic. [5]

A 2006 follow-up to the 1999 Institute of Medicine of the National Academies study found that medication errors are among the most common medical mistakes, harming at least 1.5 million people every year. According to the study, 400,000 preventable drug-related injuries occur each year in hospitals, 800,000 in long-term care settings, and roughly 530,000 among Medicare recipients in outpatient clinics. The report stated that these are likely to be conservative estimates. In 2000 alone, the extra medical costs incurred by preventable drug related injuries approximated $887 million -- and the study looked only at injuries sustained by Medicare recipients, a subset of clinic visitors. None of these figures take into account lost wages and productivity or other costs.[6]

Criticism of Medical Malpractice Lawsuits
Some doctors' groups and insurance companies have criticized medical malpractice litigation, claiming the process is expensive, adversarial, unpredictable, and inefficient. They claim that the cost of medical malpractice litigation in the United States has steadily increased at almost 12% percent annually since 1975.[7], and an estimated 60% of malpractice lawsuit expenses are now consumed by administrative, or transaction, costs (eg, lawyer fees, expert witness charges, court costs), as compared with 25% to 30% for systems such as workers' compensation. Jury Verdict Research, a database of plaintiff and defense verdicts, says awards in medical liability cases increased 43 percent in 1999, from $700,000 to $1,000,000.

These critics assert that these rate increases are causing doctors to go out of business or move to states with more favorable tort systems.[8] Not everyone agrees, though, that medical malpractice lawsuits are solely causing these rate increases. A 2003 report from the General Accounting Office found multiple reasons for these rate increases, only one of which was medical malpractice lawsuits.[9]

Tort reform advocate Common Good has proposed creating specialized medical courts (similar to existing administrative tax or workmen's comp court proceedings) where medically-trained judges would evaluate cases and subsequently render precedent-setting decisions. Proponents believe that giving up jury trials and scheduling noneconomic damages such as pain and suffering would lead to more people being compensated, and to their receiving their money sooner. Other tort reform proposals, some of which have been enacted in various states, include placing limits on noneconomic damages and collecting lawsuit claim data from malpractice insurance companies and courts in order to assess any connection between malpractice settlements and premium rates.

In contrast, trial lawyers have asserted that the medical malpractice crisis is a myth. In May 2006, the study "Claims, Errors, and Compensation Payments in Medical Malpractice Litigation" was released by the Harvard School of Public Health. This study supported a trial lawyer position that in most cases the claimants were entitled to compensation. According to the study, "the vast majority of expenditures go toward litigation over errors and payment of them."

Special medical malpractice statutes.

Local statutes must be consulted for restrictions that apply to actions against health care providers. Many states have enacted special medical malpractice statutes as a response to what some contend is another "medical malpractice crisis," said to have been brought about by an increase in the number of medical malpractice actions, substantial jury awards, and a resulting increase in liability insurance rates for health care providers. The requirements of these statutes must be satisfied before a medical malpractice plaintiff can get his or her claim before a jury.

There are several types of statutes. Some require arbitration; most create a special panel to screen claims (a few combine both to form a hybrid arbitration panel), and some place a limit on the amount the
patient may recover. There are also numerous miscellaneous provisions.

In some states, it is necessary to study court rules as well as the statutes that have been enacted, and in others the special law applying to medical malpractice cases is a procedural rule without an
accompanying statute.

It has been argued that these laws will benefit the public by helping keep down costs of health care, and perhaps further by persuading certain health care providers to continue to provide services that they
might otherwise abandon due to high insurance premiums or the unavailability of insurance coverage. But one questions whether these laws are always in the interest of the injured patient, whose rightful
recovery may now be limited, and whose financial burden might even be increased by prelitigation procedures or other requirements. A few of the statutes, or parts thereof, have been declared unconstitutional.

Some states have placed limits on the amount a plaintiff can recover in actions against health care providers. In California, noneconomic and nonpecuniary damages are limited to $250,000. Also, California law allows the periodic payment of judgments in excess of $50,000, and the courts must permit the introduction into evidence of collateral sources of compensation received or to be received by a medical malpractice plaintiff from insurance policies, social security or otherwise. Furthermore, there is a restriction on attorney fees: in a medical malpractice case, a contingent fee cannot exceed 40/% of the first $50,000 of recovery, 331/3/% of the next $50,000, 25/% of the next $500,000, and 10/% of any recovery beyond $600,000. Ê 25.16 Arbitration versus trial.

Arbitration as a means of disposing of medical malpractice claims is advocated by many as the best solution. In most cases, however, a malpractice case cannot be decided justly without the total factual
information, and this information is only going to be brought out by way of judicial discovery procedures-mainly through the taking of depositions. In arbitration, the plaintiff may not have "full rights" of
discovery.

Under the usual arbitration scheme, the malpractice plaintiff appoints one arbitrator and the physician or hospital appoints another. These two arbitrators then select a third. This system is fraught with difficulty.
In the beginning, there is the natural tendency for both sides to select biased arbitrators, and malpractice plaintiff's attorneys and insurers soon learn who these are. Thus, the die is cast. Then, difficulty is
encountered in selecting the third or allegedly "impartial" arbitrator. Weeks, months, and even years can go by before the arbitrators actually arbitrate. (Arbitration, it is argued, is supposed to speed up the
process.)

When, finally, arbitration does begin, for some reason there is a tendency on the part of the participants to slack off on their preparation. Investigation is minimized and often a "slap-dash"
presentation is undertaken by both sides. Now, suddenly, time becomes of the essence, and the arbitrators become more concerned with expediency than with justice.

In certain minor medical malpractice cases perhaps arbitration serves a worthwhile purpose. In a substantial case, however, it is doubtful whether this method of resolving disputes can accomplish justice for the parties.
Misspelled words used to find this page 3 of 7. dentisst, dentitss, dentsits, denitsts, detnists, dnetists, edntists, entists, doctor, docter, doctur, doctol, doctols, doctors, doctrs, doctos, doctoars, docters, dctors, dotors, docors, doctosr, doctros, docotrs, dotcors, dcotors, odctors, octors, negligence, neglgence, neglience, neglignce, negligece, negligene, negligenc, negliganc, ngligence, negrigenc, neligence, negriganc, negigence, negrigeignc, negligants, negligiegnce, negrigants, negligiegnts, negligeignce, negrigiegnce, negligeignts, negrigiegnts, negrigeignce, negligiegnse, negrigeignts, negrigiegnse, negligeignse, negligiegnc, negrigeignse, negrigiegnc, negligeignc, negrigance, negrigents, negligense, negliganse, negrigense, negriganse, negligance, negligents, negrigence, neg11gence, negl1gence, megligence, negligenec, negligecne, neglignece, negliegnce, neglgience, negilgence, nelgigence, ngeligence, engligence, egligence, mal, mar, aml, na1, nal, mla, practice, pactice, prctice, pratice, pracice, practce, practie, plactise, practise, plactice, practic, pactic, prctic, pratic, pracic, practc, practik, plactik, plactic, pract1ce, practiec, practcie, pracitce, pratcice, prcatice, parctice, rpactice, ractice, attorney, atterney, attoney, attrney, attorneie, atorneie, attorny, attolneie, attorey, atolneie, aterneie, atterneie, aterney, atorney, attolney, atolney, attorne, attolne, atterne, atorne, atolne, aterne, attrne, attone, attore, atorn3y, atorm3y, attornye, attoreny, attonrey, attroney, atotrney, tatorney, layer, lawyer, lawier, rawyer, rawier, lawyel, lawiel, rawyel, rawiel, leigher, leighel, reigher, reighel, rayer, layel, rayel, lawer, rawhel, lawher, rawer, rawher, lawel, lawhel, rawel, 1awyer, lawyre, laweyr, laywer, lwayer, alwyer, lawye, lawyr, lwyer, awyer,layer, lawyer, lawier, rawyer, rawier, lawyel, lawiel, rawyel, rawiel, leigher, leighel, reigher, reighel, rayer, layel, rayel, lawer, rawhel, lawher, rawer, rawher, lawel, lawhel, rawel, 1awyer, lawyre, laweyr, laywer, lwayer, alwyer, lawye, lawyr, lwyer, awyer,statute, sttute, staute, statte, statue, statught, stachute, stachught, satute, statues, satues, sttues, staues, states, status, stachues, statutes, sttutes, stautes, stattes, statuts, stachutes, satutes, statutse, statuets, stattues, stauttes, sttautes, sattutes, tsatutes, tatutes, limetasion, limittion, rimetation, limitaion, rimetaton, limitatin, rimetashun, limitatiom, rimetashon, rimitatiom, limitation, rimetasion, limetation, lmitation, limetatiom, limetaton, liitation, rimetatiom, limetashun, limtation, limetashon, limiation, rimitaton, rimitashun, rimitashon, limitasion, rimitasion, limitaton, limitashun, limitashon, rimitation, limitatons, imitatons, limitashuns,
Examples of strong cases.

It is most important that a plaintiff's medical malpractice lawyer screen cases and accept only those that are worthwhile. (In some states, the lawyer must certify that he has reviewed the matter with a qualified
physician who states that the case is "meritorious.") Often the experienced lawyer can tell if the case is worthwhile from the first contact with the client. If it is not, the client should be informed immediately; the legal and medical systems should not be cluttered with the prosecution of worthless cases.

True medical malpractice consists of negligent conduct that causes damage. There may be "malpractice" from a theoretical point of view, but if the conduct has not caused injury it is not a matter for the legal
system. Sometimes there may be true "malpractice" but no residual damage. These are not strong cases. Juries are not all interested in a past history of damage; they do become interested when a plaintiff can
show permanent injury. (1) The following are examples of such cases.

Anesthesia

A patient underwent surgery with Halothane (fluothane) as the anesthetic agent, even though he had suffered previous biliary tract disease, which made the use of this anesthetic contraindicated. The patient died as a
result of liver necrosis due to the effects of the anesthetic.

A trainee anesthesiologist ran out of oxygen before the operation was completed, causing the patient to suffer a fatal cardiac arrest.

A patient who underwent surgery for the repair of a pilonidal cyst under epidural anesthesia ended up with permanent uncontrolled movement of the lower extremities.

Angiography

A patient underwent angiography (dye study of the arteries). The procedure was improperly performed, and the patient suffered brain damage.

Burn treatment

A patient suffering from severe third-degree burns received inadequate
and improper "burn therapy."

Childbirth

A child was born with a blood problem-Rh incompatibility-antibodies developed by the mother were destroying the blood in the baby. The attending physicians and hospital personnel failed to detect the child's
condition.

A mother who was a diabetic gave birth to a child suffering from "large baby snydrome," and proper care was not exercised in delivering the child. The baby suffered a shoulder-brachial plexus injury.

A newborn baby with a metabolic disorder was improperly diagnosed and monitored by the attending physician and hospital nurses. The child suffered permanent brain damage.

A pregnant patient was improperly evaluated and monitored during pregnancy and labor; a difficult delivery ensued, and the baby was born with permanent brain damage.

A patient in labor suffered prolapse of the cord. An emergency Cesarean section was delayed, and the baby suffered permanent brain damage.

A patient's obstetrician was twenty minutes late, and delivery room nurses had to deliver her child. Then, although the infant was suffering from respiratory distress, a pediatrician was not called for several
hours. The child is brain-damaged and requires life-long care. (See Ý6.4 herein.)

Diabetes uncontrolled

An attending physician failed to control a patient's diabetes and potassium deficiency; the patient died. Diagnostic ERCP - Negligent injection of dy

During an endoscopic retrograde cholangiopancreatography (ERCP), an inexperienced nurse injected the dye too forcefully and caused the patient to develop pancreatitis and other debilitating injuries. (See
Ý4.3 herein.)

Diet error

An accident victim's operation to repair a skull fracture was delayed twenty-four hours because the patient was fed a regular diet by nursing personnel, despite a physician's order that the patient was to receive
nothing by mouth. The patient suffered permanent brain damage.

Drug addiction

A patient underwent unnecessary surgery that resulted in severe pain for which addictive medication was prescribed. The patient became a drug addict.

Drug reaction

A patient with a minor infection repeatedly was given sulfa medication without proper indication. The patient suffered Stevens-Johnson syndrome and permanent eye damage.

Errors in diagnosis generally

A child swallowed foreign metal material, and the attending physician
failed to diagnose the trouble. The child died.

A child ingested an alkaline solution and at the hospital emergency room
the physician used the wrong antidote. The child suffered permanent esophageal injury.

A child was born with congenitally dislocated hips, but the attending
obstetrician and pediatrician failed to diagnose the condition. There was permanent disability.

A patient suffered from cancer, but the attending physician failed to
diagnose the disease. The cancer spread and the patient died.

A patient ingested insecticide. His physician incorrectly diagnosed his
condition, and failed to administer the proper antidote. The outcome was permanent brain damage.

A patient suffered from ulcerative colitis of the sigmoid colon. His
attending physicians failed to perform a sigmoidoscope examination, and
the condition progressed, finally requiring removal of a large part of the colon.

A patient suffering from appendicitis was misdiagnosed; the appendix
ruptured, and the patient developed fatal peritonitis.

A woman had a cancerous condition of the leg, but an inaccurate diagnosis was made, and the patient was subjected to heat and ultrasonic treatments. The cancer spread and the patient died.

A patient who fell was taken to the hospital emergency room where a diagnosis of inebriation was made. The patient actually had a fractured spine and a severed spinal cord. The result was permanent paraplegia.

Following surgery, a patient complained of difficulty in swallowing and pain in his throat. His neurosurgeon mistook the symptoms for a sore throat and did not come to see him. The patient died the next day from
aspirating vomit. (See Ý9.5 herein.)

An on-call ophthalmologist, without seeing the patient, diagnosed his eye pain, sensitivity to light, and nausea as sinusitis, when in fact it was acute angle closure glaucoma. The patient lost sight in the eye.
(See Ý14.2 herein.)

A urologist who visually inspected and palpated a patient's suspected testicle tumor by surgically pulling it up through the inguinal canal concluded that it was only an inflammatory process when in fact it was
malignant. (See Ý17.4 herein.)

Experimental therapy

A patient complaining of low back pain received an injection of an experimental enzyme into a vertebral disc, causing a neurological deficit.

An experimental implantation of a muscle in the spinal cord resulted in quadriplegia.

Fractures

A patient suffered a fracture of the forearm that was improperly set,
resulting in Volkmann's contracture and permanent disability.

Even though a patient with a hip fracture was under a physician's care, X-rays of the hip were not made for nine days, during which time the patient was allowed to walk. The patient suffered severe narrowing of
the hip joint and permanent disability.

Heart surgery

A patient with coarctation of the aorta underwent surgical repair, but the heart-lung by-pass machine was not in operation, and the patient suffered nerve damage and paraplegia.

A patient underwent an unnecessary heart catheterization and developed a blood clot in the leg that was improperly evaluated. The patient suffered permanent disability.

Hemorrhage uncontrolled

A patient suffered from hemorrhage of esophageal varies. He was not given prompt and adequate treatment, and he died.

A patient was admitted to a hospital for minor surgery and was allowed
to suffer from an uncontrolled nose bleed, causing shock and irreversible brain damage.
Hysterectomies

During an hysterectomy the patient suffered a severance of the ureter
that went unnoticed. The patient lost a kidney.

A patient underwent an hysterectomy and experienced severe bleeding. Later a severe infection developed, as did other disabilities that required additional surgeries and transfusions.

Kidney operation

A child suffered from a kidney disorder. During surgery the wrong technique was employed and the kidney was lost.

Laboratory error

A laboratory report stated that a small growth removed from a patient's
arm was simply a benign inflamed mole, when in fact it was malignant melanoma. (See Ý16.3.)

Medication inadequate

A child suffering from meningitis was sent home with a prescription that was inadequate and inappropriate. The disease progressed, and the child suffered permanent brain damage. Pap smear not followed-u

A Pap smear taken from a patient who was complaining of vaginal bleeding showed "extremely suspicious cells," but her HMO gynecologist did not follow up with a later test, and her cervical cancer was not diagnosed for another two years. Also, the laboratory report was insufficient. (See Ý16.3.)

Priapism

A male patient suffering from an earache was given a diagnostic spinal tap, after which he experienced a painful erection of the penis (priapism). Treatment was delayed, and when finally accomplished,
bandages were applied too tightly, causing the patient to suffer permanent partial impotency and strictures of the urethra.

Spinal surgery

A patient complained of low back pain and underwent removal of a disc. There was nerve injury, causing the patient severe pain. Thereafter he had to undergo various operations on the spinal cord, all of which were
unsuccessful.

A patient was injured in a serious automobile accident and underwent back surgery. A tear in the dura was not diagnosed, and the patient developed meningitis and died.

A patient underwent low back surgery for the removal of a disc. During the approach, an instrument accidentally went through the spinal canal and into the patient's abdominal cavity. A major blood vessel was
lacerated, which almost took the patient's life.

A patient underwent low back surgery following a minor fall. There was no objective medical evidence whatsoever to justify surgical intervention. The patient suffered emotional and physical disability,
and attempted suicide.

A patient undergoing a cervical laminectomy suffered from a preexisting osteophytic condition that contraindicated extension or flexion of his head or neck more than ten to twelve degrees. The nurse anesthetist who intubated and anesthetized him was never told of this condition.
Following the operation, the patient awoke from the anesthetic a quadriplegic. (See Ý1.2 herein).

During an elective lumbar laminectomy, an orthopaedic surgeon caused a tear in the dura that resulted in a complete evacuation of cerebrospinal fluid, which in turn caused a brainstem herniation and death. (See Ý8.6
herein.)

Stomach surgery

A patient underwent surgery for removal of a portion of the stomach. Anastomosis (joinder of parts) failed, and the patient required further surgery with prolonged disability.

Unnecessary stomach surgery was improperly performed, requiring three
additional major operations, and a prolonged period of disability.

A patient underwent surgery for the repair of a duodenal ulcer. He suffered duct damage during the procedure, and required four additional operations. He was permanently disabled.

Surgical infections
An orthopaedic physician improperly reduced a fracture and failed to take adequate precautions to prevent infection. When the infection occurred, it was improperly treated. The patient suffered extended
disability.

A child suffered from a congenital defect in a lower extremity. Surgery was performed without proper drainage, and the child developed infection that went unnoticed. There was a delay in treatment, which necessitated further surgery, and resulted in permanent damage.

Tracheostomy injury
A tracheostomy was performed at an incorrect level, then the tube was improperly attended by hospital nurses. The patient suffered erosion of the innominate artery, and bled to death.

Transferred without consent
A patient suffered from pancreatitis. While being transferred to another hospital without consent, she suffered severe brain damage and remained in a comatose condition until she finally died several years later.

Treatment delayed when patient not accepted
An attending physician failed to diagnose coronary occlusion and the patient was not hospitalized. When the patient's condition deteriorated, and he finally was ordered into a hospital, the hospital refused to
accept him. He was transferred to another hospital but did not survive. Ý 25.6 Fee arrangement-Advancing costs.

Most medical malpractice cases for the plaintiff are handled on a contingent fee basis. Ordinarily this ranges from 331/3 to 50% of the recovery after costs are deducted "off the top."

Medical malpractice cases are such that usually there will be no settlement, nor even negotiations toward settlement, until the lawsuit has been filed and all essential depositions have been taken. In most
well-prepared cases, there is virtually a trial through the discovery process before the actual trial in court. Therefore, "sliding scale" contingent fees (i.e., 25% before the suit is filed, 331/3/% after the
suit is filed, 40% if the case goes to trial, 50% if the case goes on appeal, etc.) are not in vogue. But, of course, this is a matter of individual negotiation between you and your client, and should be in
accordance with your local custom and practice. Some states now have statutes limiting contingent fees in medical malpractice cases. 2

After the first interview with your client, you may deem it necessary to have him or her sign a contingent fee agreement, subject, of course, to your right to withdraw should you find the case unmeritorious after
additional investigation.

This fee agreement may provide, if permissible in your jurisdiction, that you have the right to advance costs on behalf of the client (and the right to be reimbursed). Ordinarily, the victim of medical
malpractice has been plunged into a financial abyss, and is unable to undertake the cost of the investigation and prosecution of the case. The matter will move much more expeditiously if you are in a position to
advance the necessary expense of investigation and litigation. These advances usually do not include any sums for medical care and treatment, however, and are limited to the necessary expenses for medical reviews
and examinations, and costs of investigation, depositions and the like.
Evaluation of the client.

If the case otherwise seems to have merit, the prospective client should be interviewed personally and in depth. You should determine early if he or she is trustworthy and truthful. It must be ascertained if the prospective client is merely vindictive, or possibly seeking to defeat a claim on the part of a physician or hospital for services rendered.

The filing of a medical malpractice case is serious business for everyone concerned, and if a lawyer encounters a prospective client who appears to be less than truthful, great care should be taken in
proceeding further. It may be that an injury has produced an emotional problem that can explain the client's apparent lack of trustworthiness. Under such circumstances, to be fair to everyone, I would recommend a psychiatric evaluation. Our office has encountered situations in which
the client has stated a certain set of facts to be true, but later on, perhaps in giving a deposition, we learn that the client has been lying. In such a case an attorney should offer to withdraw and allow the client to serve as his or her own attorney. If the client refuses to do so, the
attorney can ask the court to be relieved as counsel. One need not embarrass the client in doing so; it can merely be stated that "irreconcilable difficulties" have arisen between attorney and client.

The intelligence of the prospective client should be assayed. By intelligence I do not necessarily refer to I.Q., but more to an ability to communicate and express ideas adequately. After all, the vehicle
through which the case will be presented, in the final analysis, is the client.

The prospective client should be observed with regard to visible residual permanent injury - does he or she have any difficulty walking, bending, etc.? Generally, juries are not interested in giving any money unless there is visible residual permanent injury.

While every wronged plaintiff is entitled to redress for his injuries, you will not fare well before a jury if your client looks like a bum, even if the malpractice resulted in serious injury. In evaluating your
case, look at the patient, or if you have a wrongful death case, look at the family members. Do you like them? If you do, chances are the jury will, too.

Does the case have "shock value"?

The "shock value" of a medical malpractice case is important. It is a good idea for the attorney to test his or her own reaction to the client's story. Some authorities in the field believe that if a
plaintiff's own lawyer is not "shocked" by what happened to the patient, then a jury will not be, and the jury will follow the traditional path of favoring the medical profession regardless of what the medical evidence might be.

If the client does tell a shocker of a story, you should not jump to the conclusion that the client is exaggerating. A plaintiff's medical malpractice lawyer must acquire the philosophy that anything can happen in medicine. Probably the most bizarre happening one can imagine has occurred somewhere. I have seen meritorious malpractice cases rejected by inexperienced attorneys simply because they could not believe the client's story.

In a case handled by our office the patient suffered from cancer of the right kidney. The surgeon took out the left kidney! But that was not all. The patient remained in the hospital for some ten days before being transferred to another center to have his cancerous right kidney attended to, and in the transfer summary not a word was mentioned about the wrong kidney being removed!

And in another case, a patient with a fourteen-inch prosthesis in her left hip went into the hospital to have the device removed and a new one inserted. But instead of operating on the left hip, the surgeons opened up the normal right hip. Finding no prosthesis, they closed the incision
and proceeded to work on the other hip. Afterward, they tried to cover up their mistake by explaining to the patient's husband that they deliberately operated on the right hip to see if it had the same disease as the left!

Clients with poor memories.

Many prospective clients, especially those who have sustained serious injury, suffer from poor memories with regard to dates, places, and names. Do not be overly concerned; this is not necessarily a drawback, inasmuch as this kind of information can be procured from other sources:
friends, members of the family, physicians' records and hospital charts.

The client should be asked to present at the initial interview all available documentation, particularly billing statements. Oftentimes, billing information will provide clues as to what really has been done.
A particular surgical or medical procedure may be identified by way of the billing statement. Sometimes, a bill for anesthesia services will state the number of hours and minutes spent by the anesthesiologist in connection with the administration of a particular anesthetic given at
the time of surgery. All of these "building blocks" may be helpful.

Summary.

Basically, the bona fides and appearance of the prospective client must be evaluated in the first interview. If it appears that he or she has a legitimate and meritorious claim, with objective evidence of injury and residual damage, it will be worthwhile to proceed further with the investigation.

A detailed file memorandum of the entire interview should be prepared
Selecting defendants.

The handling of a medical malpractice case is unique in the practice of law. Although there is some kinship to cases involving legal malpractice, architectural malpractice, accountancy malpractice and even
products liability (sometimes called "manufacturer's malpractice"), in medical malpractice, often there is a vast array of players in the act. The talents of these players can vary considerably. In what appears at
first to be surgical malpractice, one may find that the surgeon was in fact brilliant, and it was the anesthesiologist who was incompetent. In the next case there may be an incompetent surgeon and a brilliant
anesthesiologist. Nurses, of course, also vary in ability, from a scale of "minus one" to "plus ten."

An important step in screening a medical malpractice case is to check the credentials of the health care providers who might become defendants in the lawsuit. More that fifty percent of the medical practitioners in the United States are board certified. This means that they have taken approved postgraduate training and have passed an examination required by the particular specialty board. When a physician holds himself or herself out as a specialist, in most cases it is safe to assume that he or she is board certified and has acquired the training and skills ordinarily possessed by physicians in good standing in the community who
practice the same specialty. But when a nonboard certified physician holds himself or herself out as a specialist in a particular field, there is a strong inference that that physician does not possess the
training and skills that should be possessed for that field, and if that physician is involved in an "untoward event," lack of training and skill just may be the cause.

Some hospitals grant staff memberships to board certified specialists only, and usually such hospitals have a good reputation in the community and within the medical profession. Hospitals with willynilly policies on
granting staff memberships ordinarily do not have a good reputation, and if there is an untoward event, it might be explained by this laxity in credentialing.

In determining who should be made a defendant, it should be borne in mind that any physician or other party, including hospital personnel, who has contributed to the client's injury should be joined as a party
to the lawsuit. At the same time, care should be exercised to not unnecessarily join an individual if he is innocent of wrongdoing, and if he has not participated in a conspiracy to protect the actual wrongdoer.
Collateral, remote, and innocent persons should not be subjected to a lawsuit.

I do not rule out a defendant merely because he or she does not have malpractice insurance. I will still go after them. Personally, I believe it is immoral for a physician to be in a position to injure someone and
not be able to pay the damages. I had a case in which I represented a lady who awoke from anesthesia to find her plastic surgeon fondling her. The surgeon, who had also performed the operation poorly, had no
malpractice insurance. We won a $500,000 verdict and collected $350,000 of it from the defendant by forcing the sale of his office building and home.

On the other hand, in evaluating your defendants, be on guard for the Marcus Welby type of personality. Some doctors, and even some hospital administrators, have such a forthright and wholesome appearance that jurors will not believe that they can be capable of wrongdoing. And, of course, the opposite is true: if you have an unattractive, "schlocky" defendant, you will have a lot going for you in a jury case.

In cases in which there has been a serious drug reaction, it is often necessary to join the drug manufacturer as a party defendant. (See Section 25.11 herein.) Attorneys who expect to handle medical malpractice matters should subscribe to and keep current the Physicians' Desk Reference (PDR), published by Medical Economics Company of Oradell, New Jersey. PDR is a compendium of most of the ethical drugs prescribed
in the United States. Listings on these drugs in PDR include information on dosage, precautions, contraindications, side effects, and the like. Also, the manufacturer of the drug is identified.

In numerous cases, a physician will claim that a patient had an idiosyncratic reaction to the drug, but it may be that the physician prescribed an incorrect drug, or violated the manufacturer's recommendations regarding usage or dosage of the drug. Also, the manufacturer may have failed to warn of certain hazards of the drug, or misrepresented its effectiveness.

Should a drug manufacturer, the maker of a medical or surgical device, or the manufacturer of surgical or hospital equipment, be made a party defendant to the lawsuit, theories of strict liability in tort, specific
acts of negligence, and breach of warranty must all be considered.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Review by medical expert.

After procurement of as many medical reports as possible, and photostatic copies of physicians' office records and the patient's hospital charts, you should have a competent physician review the material to ascertain whether there has actually been negligence or a violation of applicable standards of medical or hospital practice, and
whether there is a causal relationship between such negligence and the client's injury.

Because of the discovery rules that appertain in most states, it is advisable to meet personally with your reviewing expert rather than have him prepare a report at this stage of the case. You should dictate his opinion into memorandum form, which in most instances will then be considered your work product and thus immune from direct discovery by your opponent.

Obviously, the question arises as to how one finds a good medical reviewer. This, of course, is not always an easy task. It may be possible to procure a physician from friends and associates; occasionally you will find one who at least is willing to review your file and briefly advise you. Probably such a reviewer will want to remain anonymous, and it is doubtful if he will be willing to give testimony for you in any form. Another possible source is the faculty of a medical school. Although preferable, your reviewer need not be a
specialist in the field involved; if he has a good basic medical education, he should be able to review your pertinent material, conduct necessary research, check with specialist friends, and give you an
adequate, objective opinion.

Another method an attorney might employ to find a medical expert is to call or write the author or editor of a leading treatise on the subject matter involved. Our office is presently representing a 43-year-old lady
who underwent a posterior lumbar interbody fusion (PLIF). The surgeon used an oversized bone plug and the lady became paralyzed (see Section 8.6, this volume). When we were taking the deposition of one of the
defense's experts, he referred to a brand new book on the PLIF procedure. Our office got in touch with the editor of the book, who agreed to look over our client's medical records. The editor believes
that our client's case involves gross negligence and he said he will so testify. Inasmuch as the defense expert has stated in his deposition that this new book is the "Bible" on this type of surgery, we anticipate
that our editor will be a devastating expert at trial.

If an attorney is presented with a potential major medical malpractice case, and he is unable to procure a medical reviewer, it may be best to seek out an attorney who specializes in malpractice litigation and refer
the matter. It is very risky for any attorney to proceed to trial with significant malpractice litigation without available competent medical consultation on a continual basis. This does not mean that it cannot be
done, however. Some plaintiff's lawyers have been able to prosecute successfully a malpractice case, even through trial and appeal, primarily on the strength of their own medical research. And, of course,
many have achieved very attractive settlements without the help of medical consultation. But these are the exceptions rather than the rule.

Even where help is promised by a medical adviser, the malpractice plaintiff's attorney, in many cases, will find that he must conduct much medical research on his own. Thus, where full professional assistance is
not available, or where circumstances are such that he or his client cannot undertake the necessary cost of a thorough evaluation by an expert, the plaintiff's attorney must be prepared to rely on what he can
find in the medical and medicolegal literature. However, if the case goes to trial, success almost always depends upon the testimony of an expert witness.
 
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 General Introduction
How big is the problem? Medical malpractice is a bigger problem than most people want to admit. Approximately 80,000 people die in the United States each year due partly to medical malpractice (based on an extensive study entitled "Patients, Doctors and Lawyers: Medical Injury, Malpractice Litigation, and Patient Compensation in New York," published by the Harvard Medical Practice Study in 1990, a report to the State of New York). These statistics have since been confirmed by other studies performed in California and New Jersey. Meanwhile, a RAND Corporation Study regarding health care quality by Mark A. Schuster, M.D., Ph.D., Elizabeth A. McGlynn, Ph.D, and Robert H. Brook, M.D., Sc.D. revealed that autopsy studies showed rates between 35 and 40% of missed diagnoses with most resulting in death. Numerically, this is more than three fully loaded jumbo jets crashing every week with no survivors. That number of airplane crashes would mobilize many commissions, government investigations, and a huge effort to prevent the crashes. Unfortunately, since medical malpractice injuries happen separately and privately, the effect is not the same.
 
Even more disturbing, these numbers are only based on hospital statistics. They do not include deaths from missed diagnoses or medical negligence that occurred in clinics, private doctors' offices, or other treatment facilities.
 
Claims filed. At the same time, surprisingly few claims are filed. Only 2 percent of people injured by physicians' negligence seek compensation through a lawsuit (according to a 1991 article in the New England Journal of Medicine). A separate report from the Harvard School of Public Health ("Harvard Medical Practice Study") found slightly higher numbers. Their research found that only one in eight patients that suffers due to medical negligence ever files a lawsuit and only one in sixteen recovers any damages. However, despite the slightly higher percentage, the study concluded, "Our data make clear, then, that the focus of legislative concern should be that the malpractice system is too inaccessible, rather than too accessible, to the victims of negligent medical treatment."
 
Insurance. Many people do not realize that their physician is not required to be insured. If not insured, there is little hope of collecting compensation if the doctor injures an innocent patient through malpractice. For details on how insurance premiums have greatly exceeded insurance payouts for many years, see Insurance Statistics. (Summary: for the period 1984 through 2002, Hawai`i medical malpractice insurers took in $350.8 million in premiums, and paid out only $174.6 million in claims.) According to the U.S. Congressional Budget Office, medical malpractice insurance premiums amount to less than 1% of health costs.
 
Local regulation. There is little effective regulation of quality by the state licensing board. Only about 2,000 doctors (one-third of one percent) are disciplined each year. Usually, the charges involve substance abuse or financial fraud. Rarely is a physician disciplined for injuring a patient through medical malpractice.

If I think medical malpractice might have happened, but I don't really know, what should I do?

First, be aware of the statute of limitations. You may have a valid claim, but if you wait too long, the claim is lost even if it is valid. The general rule is that the claim must be filed within two years after the malpractice, or two years after you reasonably should have known there was malpractice. However, there are a number of tricky exceptions, so do not give up just because two years may have passed already. As a general rule, delay helps the other side more than it helps you.
 
Second, you can generally forget about evaluating the claim yourself, or trying to "work it out" with the doctor or clinic or hospital. Usually, the "real" decision-maker is the doctor's insurance carrier (if your doctor is even insured, some are not), and the doctor's attorney. These people are not paid to help you, or to be candid with you. They are paid to defeat your claim. You need an experienced professional to help you evaluate your claim. Without an attorney, the doctor's attorney and insurance company usually will not take you seriously.
 
Contact any law firm experienced in medical malpractice cases. There is no charge for an initial evaluation of your case. These cases are very different from other kinds of personal injury cases such as car accidents. Special rules and laws apply, and special tactics and strategies are important. If your case has any merit at all, an experienced attorney should be willing to sit down with you and explain all your options, without charge. Then you can make a full and informed decision about whether or not you want to go forward.

Generally, what must I prove? In every medical malpractice case in Hawai`i, you must be able to prove three things: (a) breach of the standard of care; (b) causation, and (c) damages.

Breach of the standard of care. You must prove that the doctor made a mistake -- a mistake which a reasonable and prudent doctor would not have made under the same circumstances. Generally, this requires an expert witness (another doctor) to come forward and testify that your doctor did make a mistake. As you can imagine, this is not an easy process, since doctors do not like to testify against each other. Finding good expert witnesses is the critical part of most medical malpractice cases.
 
Causation. In addition to showing the doctor made a mistake, you have to show the doctor's mistake caused an injury to you. To look at it another way, the reason people go to see doctors is because they are sick. Even the best medical treatment may be useless. So, you have to be able to show that IF the doctor had not made the mistake, then the patient would have gotten better, or would not have been injured as much. Again, it is critical to get an expert witness who is willing to testify to this.
 
Damages. Finally, you have to show what damages resulted from the doctor's mistakes. This could be anything from death to serious injury. It may include lost wages, medical bills, agony, mental suffering, or the loss of a loved one. Often, economists and other experts are necessary to calculate and present these damages in court.

What is the process of a medical malpractice claim in Hawai`i? Generally, a medical malpractice claim in Hawai`i follows a series of steps.

Get the medical records. It is usually impossible to accurately evaluate a medical malpractice claim without obtaining all relevant medical records. If you want to obtain your own medical records, we have provided a sample letter. Unfortunately, the hospitals and doctors often charge high rates for obtaining these records. Charges of 50 cents to $1.00 per page, or more, are common. Pursuant to Hawai`i Revised Statutes, Section 622-57, the law says:
 

If a patient . . . requests copies of his or her medical records, the copies shall be made available to the patient unless in the opinion of the health care provider it would be detrimental to the health of the patient to obtain the records. If the health care provider is of the opinion that release of the records to the patient would be detrimental to the health of the patient, the health care provider shall advise the patient that copies of the records will be made available to the patient's attorney upon presentation of a proper authorization signed by the patient.

If an attorney for a patient asks a health care provider for copies of the patient's medical records and presents a proper authorization from the patient for the release of the information, complete and accurate copies of the records shall be given to the attorney within a reasonable time not to exceed ten working days.

In the case of a deceased person, a personal representative... may obtain copies...

If no personal representative has been appointed, the deceased person's next of kin... without court order, may obtain copies of or may authorize the health care provider to release copies of the deceased person's medical records...  (See HRS 622-57.)

Reasonable costs incurred by a health care provider in making copies of medical records shall be borne by the requesting person.

Expert opinion. After getting the medical records, an experienced attorney can often make a preliminary evaluation; however, more often, the attorney will want to discuss the records with an expert witness, or send the records to a potential expert witness for evaluation. This is where the high costs of a medical malpractice case really begin. (A well-qualified expert witness will often charge $250.00 to $400.00 per hour to review all the records and render an opinion, and there is no guaranty the first one will testify for you. Sometimes it takes 2-3 experts before you find one who is willing to testify for you.) However, usually your attorney will "front" or pay these costs for you, and only get them back if they win the case through a settlement or trial verdict.
 
Medical Claims Conciliation Panel. The Medical Claims Conciliation Panel ("MCCP") is part of the Department of Commerce and Consumer Affairs, State of Hawai`i. The law requires that most medical malpractice claims in Hawai`i first go through the MCCP process. Basically, this involves non-binding arbitration, where three persons act as judges and listen to evidence about your claim and issue a decision. The MCCP decision is not binding. Even if you lose at the MCCP, you can still file a lawsuit. At the same time, if you win, the doctor or hospital is not required to pay. In other words, no matter what the MCCP does, either side can still require the case go to court.
 
Circuit court lawsuit. After the MCCP panel makes its decision, unless the case settles (which is rare), you will then need to file your circuit court lawsuit. The lawsuit will usually take 1-2 years to resolve, either through settlement or trial.
 
Kaiser cases. People who have health care coverage through Kaiser Permanente (Kaiser doctors or the Kaiser clinics) will probably not be able to file lawsuits, but will instead have to file for binding arbitration. This is usually required by the Kaiser health plan documents you or a family member signs when they become eligible for Kaiser coverage, often through an employer's health plan. The bottom line is that most Kaiser plan participants give up their right to go to court, and instead agree to resolve any complaints through binding arbitration. This method has advantages and disadvantages to regular court, which your attorney can explain in detail depending on the particular nature of your case.
 
Military cases. Cases involving Tripler Army Medical Center do not go through the MCCP process, and they are filed in federal court as opposed to state court. However, they first go through a Federal Tort Claims Process the federal government has set up. These cases usually end up as a judge trial, which has advantages and disadvantages over a jury trial.
INDEX OF STATES
Click the state you  for  medical malpractice regulations that you would like to learn more about including: Statutes of Limitations, Contributory or Comparative Negligence, Joint and Several Liability, Contribution, Vicarious Liability, Expert Testimony, Damage Caps, Statutory Cap on Attorneys' Fees, Periodic Payments, Collateral Source Rule, Pre-Judgment Interest,Patient Compensation Funds and Physician Insurance, Immunities, Arbitration
Alabama Kentucky North Dakota
Alaska Louisiana Ohio (revised 2006)
Arizona Maine Oklahoma
Arkansas Maryland Oregon (revised 2003)
California Massachusetts Pennsylvania (revised 2003)
Colorado Michigan (revised 2002) Rhode Island
Connecticut Minnesota South Carolina
Delaware Mississippi (revised 2002) South Dakota
District of Columbia Missouri Tennessee
Florida Montana Texas
Georgia Nebraska Utah
Hawaii Nevada Vermont
Idaho New Hampshire Virginia (revised 2003)
Illinois (revised 2002) New Jersey Washington
Indiana New Mexico West Virginia
Iowa New York Wisconsin
Kansas (revised 2002) North Carolina Wyoming
 

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Medical malpractice is an act or omission by a health care provider which deviates from accepted standards of practice in the medical community and which causes injury to the patient. Simply put, medical malpractice is professional negligence (by a healthcare provider) that causes an injury. Health care providers subject to liability for negligence include physicians and their assistants, nurses, pharmacists, hospitals, or skilled nursing facilities.

In the United States and other countries, a specific medical malpractice law has developed. In English law, the issue of liability is a subset of professional negligence where, under the Bolam Test, a doctor will be liable unless shown to have acted in accordance with a reasonable body of medical opinion. In Australia, this test has been replaced but the principles are comparable.

Contents

Common types of medical malpractice

Malpractice is not limited to surgical errors. Some of the more common forms of malpractice include the following :

  • Misdiagnosis of an illness, failure to diagnose or delay of a diagnosis
  • Errors resulting in birth injuries
  • Surgical errors
  • Improper prescription or administration of medication
  • Inappropriate or substandard treatment
  • Failure to properly follow-up on a patient
  • Lack of informed consent
  • Improper administration of anesthesia
  • Preventable patient injuries ( such as falls ) on medical facility property

The medical malpractice claim

The parties

The plaintiff is the patient, a legally designated party acting on behalf of the patient, or by the executor or administrator of a deceased patient's estate (in the case of a wrongful death suit).

The defendant is the health care provider. Although a 'health care provider' usually refers to a physician, the term includes any medical care provider, including dentists, nurses, and therapists. Relying on vicarious liability or direct corporate negligence, claims may also be brought against hospitals, clinics, managed care organizations or medical corporations for the mistakes of their employees.

Elements of the case

A plaintiff must establish all four of the following elements, for a successful medical malpractice claim.[1]

  1. A duty was owed - a legal duty exists whenever a hospital or health care provider undertakes care or treatment of a patient.
  2. A duty was breached -- the provider failed to conform to the relevant standard of care. The standard of care is proved by expert testimony or by obvious errors (the doctrine of res ipsa loquitor or 'the thing speaks for itself').
  3. The breach caused an injury -- The breach of duty was a proximate cause of the injury.
  4. Damages -- Without damages (losses which may be pecuniary or emotional), there is no basis for a claim, regardless of whether the medical provider was negligent.

The trial
Like all other tort cases, the plaintiff (or the plaintiff's attorney)files a lawsuit in a court with appropriate jurisdiction. Between the filing of suit and the trial, the parties (or their attorneys) are required to 'share information' through a process known as discovery. Such information includes interrogatories, requests for documents, and depositions. If both parties agree, the case may be settled early on negotiated terms. If the parties cannot agree, the case will proceed to trial.

The plaintiff has the burden of proof to prove all the elements by a preponderance (51%) of evidence. At trial, both parties will usually present experts to testify as to the standard of care required, and other technical issues during trial. The fact-finder (judge or jury) must then weigh all the evidence and determine which is the most credible.

The factfinder will render a verdict for the prevailing party, and asseses the compensatory and punitive damages, within the parameters of the judge's instructions. The verdict is then reduced to the judgment of the court. The losing party may move for a new trial. In a few jurisdictions, a plaintiff who is dissatisfied by a small judgment may move for additur. In most jurisdictions, a defendant who is dissatisfied with a large judgment may move for remittitur. Either side may take an appeal from the judgment.

Expert testimony
Expert witnesses must be qualified by the Court, based on the prospective experts qualifications and the standards set from legal precedent. To be qualified as an expert in a medical malpractice case, a person must have a sufficient knowledge, education, training, or experience regarding the specific issue before the court to qualify the expert to give a reliable opinion on a relevant issue. The qualifications of the expert are not the deciding factors as to whether the individual will be qualified, although they are certainly important considerations. Expert testimony is not qualified "just because somebody with a diploma says it is so" (United States v. Ingham, 42 M.J. 218, 226 [A.C.M.R. 1995]). In addition to appropriate qualifications of the expert, the proposed testimony must meet certain criteria for reliabilty. In the United States, two models for evaluating the proposed testimony are used:

The more common (and some believe more reliable) approach used by all federal courts and most state courts is the 'gatekeeper' model, which is a test formulated from the US Supreme Court cases Daubert v. Merrell Dow Pharmaceuticals (509 U.S. 579 [1993]), General Electric Co. v. Joiner (522 U.S. 136 [1997]), and Kumho Tire Co. v. Carmichael (526 U.S. 137 [1999]. Before the trial, a Daubert hearing[2]will take place before the judge (without the jury). The trial court judge must consider evidence presented to determine whether an expert's "testimony rests on a reliable foundation and is relevant to the task at hand." (Daubert, 509 U.S. at 597). The Daubert hearing considers 4 questions about the testimony the prospective expert proposes:

  • Whether a "theory or technique . . . can be (and has been) tested"
  • Whether it "has been subjected to peer review and publication".
  • Whether, in respect to a particular technique, there is a high "known or potential rate of error"
  • Whether there are "standards controlling the technique's operation".

Some state courts still use the Frye test that relies on scientific consensus to assess the admissibility of novel scientific evidence. Daubert expressly rejected the earlier federal rule's incorporation of the Frye test. (Daubert, 509 U.S. at 593-594) Expert testimony that would have passed the Frye test is now excluded under the more stringent requirements of Federal Rules of Evidence as construed by Daubert.

In view of Daubert and Kuhmo, the pre trial preparation of expert witnesses is critical.
Damages
The plaintiff's damages may include compensatory and punitive damages. Compensatory damages are both economic and non-economic. Economic damages include financial losses such as lost wages (sometimes called lost earning capacity), medical expenses and life care expenses. These damages may be assessed for past and future losses. Non-economic damages are assessed for the injury itself: physical and psychological harm, such as loss of vision, loss of a limb or organ, the reduced enjoyment of life due to a disability or loss of a loved one, severe pain and emotional distress. Punitive damages are only awarded in the event of wanton and reckless conduct.

Statistics on malpractice and preventable medical error
Medical error

In the United States medical error is estimated to result in 44,000 to 98,000 unnecessary deaths and 1,000,000 excess injuries each year.[1][2] It is estimated that in a typical 100 to 300 bed hospital in the United States, excess costs of $1,000,000 to $3,000,000 attributable to prolonged stays and complications just due to medication errors occur yearly.

Medical care is frequently compared adversely to aviation, in that, while many of the factors which lead to error are similar, aviation's error management protocols are much more effective.[3]

Contents

Epidemiology of medical error

Medical errors are associated with inexperienced clinicians, new procedures, extremes of age, complex care and urgent care.

Approaches to error

Traditionally, errors are attributed to mistakes made by individuals who may be penalized for these mistakes. The usual approach to correct the errors is to create new rules with additional checking steps in the system, aiming to prevent further errors. As an example, an error of free flow IV administration of heparin is approached by teaching staff how to use the IV systems and to use special care in setting the IV pump. While overall errors become less likely, the checks add to workload and may in themselves be a cause of additional errors.

A newer model for improvement in medical care takes its origin from the work of W. Edwards Deming in a model of Total Quality Management. In this model, systems of care are evaluated for process issues that may contribute to errors in care. As an example, in such a system the error of free flow IV administration of Heparin is dealt with by not using IV heparin and substituting subcutaneous administration of heparin, obviating the entire problem. However, such an approach presupposes available research showing that subcutaneous heparin is as effective as IV. Thus, most systems use a combination of approaches to the problem.

The field of medicine that has taken the lead in systems approaches to safety is Anaesthesiology.[5] Steps such as standardization of IV medications to 1 ml doses, national and international color coding standards, and development of improved airway support devices has made anesthesia care a model of systems improvement in care.

The profession of pharmacy has extensively studied the causes of errors in the prescribing, preparation, dispensing and administration of medications. As far back as the 1930’s, pharmacists worked with physicians to select from many options, the safest and most effective drugs available for use in hospitals [6]. The process is known as the Formulary System and the list of drugs is known as the Formulary. In the 1960’s, hospitals implemented unit dose packaging and unit dose drug distribution systems to reduce the risk of wrong drug and wrong dose errors in hospitalized patients[7]; centralized sterile admixture services were shown to decrease the risks of contaminated and infected intravenous medications[8]; pharmacy computers screened each patient’s medication list for drug-drug interactions[9]; and, pharmacists provided drug information and clinical decision support directly to physicians to improve the safe and effective use of medications[10]. Pharmacists are recognized experts in medication safety and have made many contributions that reduce error and improve patient care over the last 50 years.

A 2005 study by Wendy Levinson of the University of Toronto showed surgeons discussing medical errors used the word "error" or "mistake" in only 57 per cent of disclosure conversations and offered a verbal apology only 47 per cent of the time.
 Examples of errors

  1. Misdiagnosis
  2. Giving the wrong drug or (wrong patient, wrong chemical, wrong dose, wrong time, wrong route)
  3. Giving two or more drugs that interact unfavorably or cause poisonous metabolic byproducts
  4. Wrong site surgery such as amputating the wrong limb

Methods to improve safety and reduce error

  1. patient's informed consent policy
  2. patient's getting a second opinion from another independent practitioner with similar qualifications
  3. voluntary reporting of errors (to obtain valid data for cause analysis)
  4. root cause analysis
  5. systems for ensuring review by experienced or specialist practitioners[12]

See also

Medical malpractice claims can help identify areas where primary health care in the United States needs improvement, according to the American Academy of Family Physicians. The Academy refers to a study entitled "Learning from Malpractice Claims about Negligent, Adverse Events in Primary Care in the United States", in suggesting that the medical community can learn from tort claims. In that study, researchers looked at primary care malpractice claims settled between 1985 and 2000 in the United States. The study focused on a subset of 5,921 claims that were clear errors. The researchers found:

  • 68 percent of the errors were in outpatient settings and resulted in more than 1,200 deaths.
  • Negligence was more likely to have severe outcomes when they occurred in hospitals, but the total number of high severity outcomes and death was larger in the outpatient setting.
  • Of the 10 most prevalent medical conditions with error-related claims, no single condition accounted for more than five percent of all negligent claims.
  • Diagnostic error accounted for more than one-third of the claims.[4]

A recent study by Heathgrades found that an average of 195,000 hospital deaths in each of the years 2000, 2001 and 2002 in the U.S. were due to potentially preventable medical errors. Researchers examined 37 million patient records and applied the mortality and economic impact models developed by Dr. Chunliu Zhan and Dr. Marlene R. Miller in a study published in the Journal of the American Medical Association (JAMA) in October of 2003. The Zhan and Miller study supported the Institute of Medicine’s (IOM) 1999 report conclusion, which found that medical errors caused up to 98,000 deaths annually and should be considered a national epidemic. [5]

A 2006 follow-up to the 1999 Institute of Medicine of the National Academies study found that medication errors are among the most common medical mistakes, harming at least 1.5 million people every year. According to the study, 400,000 preventable drug-related injuries occur each year in hospitals, 800,000 in long-term care settings, and roughly 530,000 among Medicare recipients in outpatient clinics. The report stated that these are likely to be conservative estimates. In 2000 alone, the extra medical costs incurred by preventable drug related injuries approximated $887 million -- and the study looked only at injuries sustained by Medicare recipients, a subset of clinic visitors. None of these figures take into account lost wages and productivity or other costs.[6]

Criticism of Medical Malpractice Lawsuits
Some doctors' groups and insurance companies have criticized medical malpractice litigation, claiming the process is expensive, adversarial, unpredictable, and inefficient. They claim that the cost of medical malpractice litigation in the United States has steadily increased at almost 12% percent annually since 1975.[7], and an estimated 60% of malpractice lawsuit expenses are now consumed by administrative, or transaction, costs (eg, lawyer fees, expert witness charges, court costs), as compared with 25% to 30% for systems such as workers' compensation. Jury Verdict Research, a database of plaintiff and defense verdicts, says awards in medical liability cases increased 43 percent in 1999, from $700,000 to $1,000,000.

These critics assert that these rate increases are causing doctors to go out of business or move to states with more favorable tort systems.[8] Not everyone agrees, though, that medical malpractice lawsuits are solely causing these rate increases. A 2003 report from the General Accounting Office found multiple reasons for these rate increases, only one of which was medical malpractice lawsuits.[9]

Tort reform advocate Common Good has proposed creating specialized medical courts (similar to existing administrative tax or workmen's comp court proceedings) where medically-trained judges would evaluate cases and subsequently render precedent-setting decisions. Proponents believe that giving up jury trials and scheduling noneconomic damages such as pain and suffering would lead to more people being compensated, and to their receiving their money sooner. Other tort reform proposals, some of which have been enacted in various states, include placing limits on noneconomic damages and collecting lawsuit claim data from malpractice insurance companies and courts in order to assess any connection between malpractice settlements and premium rates.

In contrast, trial lawyers have asserted that the medical malpractice crisis is a myth. In May 2006, the study "Claims, Errors, and Compensation Payments in Medical Malpractice Litigation" was released by the Harvard School of Public Health. This study supported a trial lawyer position that in most cases the claimants were entitled to compensation. According to the study, "the vast majority of expenditures go toward litigation over errors and payment of them."

Special medical malpractice statutes.

Local statutes must be consulted for restrictions that apply to actions against health care providers. Many states have enacted special medical malpractice statutes as a response to what some contend is another "medical malpractice crisis," said to have been brought about by an increase in the number of medical malpractice actions, substantial jury awards, and a resulting increase in liability insurance rates for health care providers. The requirements of these statutes must be satisfied before a medical malpractice plaintiff can get his or her claim before a jury.

There are several types of statutes. Some require arbitration; most create a special panel to screen claims (a few combine both to form a hybrid arbitration panel), and some place a limit on the amount the
patient may recover. There are also numerous miscellaneous provisions.

In some states, it is necessary to study court rules as well as the statutes that have been enacted, and in others the special law applying to medical malpractice cases is a procedural rule without an
accompanying statute.

It has been argued that these laws will benefit the public by helping keep down costs of health care, and perhaps further by persuading certain health care providers to continue to provide services that they
might otherwise abandon due to high insurance premiums or the unavailability of insurance coverage. But one questions whether these laws are always in the interest of the injured patient, whose rightful
recovery may now be limited, and whose financial burden might even be increased by prelitigation procedures or other requirements. A few of the statutes, or parts thereof, have been declared unconstitutional.

Some states have placed limits on the amount a plaintiff can recover in actions against health care providers. In California, noneconomic and nonpecuniary damages are limited to $250,000. Also, California law allows the periodic payment of judgments in excess of $50,000, and the courts must permit the introduction into evidence of collateral sources of compensation received or to be received by a medical malpractice plaintiff from insurance policies, social security or otherwise. Furthermore, there is a restriction on attorney fees: in a medical malpractice case, a contingent fee cannot exceed 40/% of the first $50,000 of recovery, 331/3/% of the next $50,000, 25/% of the next $500,000, and 10/% of any recovery beyond $600,000. Ê 25.16 Arbitration versus trial.

Arbitration as a means of disposing of medical malpractice claims is advocated by many as the best solution. In most cases, however, a malpractice case cannot be decided justly without the total factual
information, and this information is only going to be brought out by way of judicial discovery procedures-mainly through the taking of depositions. In arbitration, the plaintiff may not have "full rights" of
discovery.

Under the usual arbitration scheme, the malpractice plaintiff appoints one arbitrator and the physician or hospital appoints another. These two arbitrators then select a third. This system is fraught with difficulty.
In the beginning, there is the natural tendency for both sides to select biased arbitrators, and malpractice plaintiff's attorneys and insurers soon learn who these are. Thus, the die is cast. Then, difficulty is
encountered in selecting the third or allegedly "impartial" arbitrator. Weeks, months, and even years can go by before the arbitrators actually arbitrate. (Arbitration, it is argued, is supposed to speed up the
process.)

When, finally, arbitration does begin, for some reason there is a tendency on the part of the participants to slack off on their preparation. Investigation is minimized and often a "slap-dash"
presentation is undertaken by both sides. Now, suddenly, time becomes of the essence, and the arbitrators become more concerned with expediency than with justice.

In certain minor medical malpractice cases perhaps arbitration serves a worthwhile purpose. In a substantial case, however, it is doubtful whether this method of resolving disputes can accomplish justice for the parties.
Examples of strong cases.

It is most important that a plaintiff's medical malpractice lawyer screen cases and accept only those that are worthwhile. (In some states, the lawyer must certify that he has reviewed the matter with a qualified
physician who states that the case is "meritorious.") Often the experienced lawyer can tell if the case is worthwhile from the first contact with the client. If it is not, the client should be informed immediately; the legal and medical systems should not be cluttered with the prosecution of worthless cases.

True medical malpractice consists of negligent conduct that causes damage. There may be "malpractice" from a theoretical point of view, but if the conduct has not caused injury it is not a matter for the legal
system. Sometimes there may be true "malpractice" but no residual damage. These are not strong cases. Juries are not all interested in a past history of damage; they do become interested when a plaintiff can
show permanent injury. (1) The following are examples of such cases.

Anesthesia

A patient underwent surgery with Halothane (fluothane) as the anesthetic agent, even though he had suffered previous biliary tract disease, which made the use of this anesthetic contraindicated. The patient died as a
result of liver necrosis due to the effects of the anesthetic.

A trainee anesthesiologist ran out of oxygen before the operation was completed, causing the patient to suffer a fatal cardiac arrest.

A patient who underwent surgery for the repair of a pilonidal cyst under epidural anesthesia ended up with permanent uncontrolled movement of the lower extremities.

Angiography

A patient underwent angiography (dye study of the arteries). The procedure was improperly performed, and the patient suffered brain damage.

Burn treatment

A patient suffering from severe third-degree burns received inadequate
and improper "burn therapy."

Childbirth

A child was born with a blood problem-Rh incompatibility-antibodies developed by the mother were destroying the blood in the baby. The attending physicians and hospital personnel failed to detect the child's
condition.

A mother who was a diabetic gave birth to a child suffering from "large baby snydrome," and proper care was not exercised in delivering the child. The baby suffered a shoulder-brachial plexus injury.

A newborn baby with a metabolic disorder was improperly diagnosed and monitored by the attending physician and hospital nurses. The child suffered permanent brain damage.

A pregnant patient was improperly evaluated and monitored during pregnancy and labor; a difficult delivery ensued, and the baby was born with permanent brain damage.

A patient in labor suffered prolapse of the cord. An emergency Cesarean section was delayed, and the baby suffered permanent brain damage.

A patient's obstetrician was twenty minutes late, and delivery room nurses had to deliver her child. Then, although the infant was suffering from respiratory distress, a pediatrician was not called for several
hours. The child is brain-damaged and requires life-long care. (See Ý6.4 herein.)

Diabetes uncontrolled

An attending physician failed to control a patient's diabetes and potassium deficiency; the patient died. Diagnostic ERCP - Negligent injection of dy

During an endoscopic retrograde cholangiopancreatography (ERCP), an inexperienced nurse injected the dye too forcefully and caused the patient to develop pancreatitis and other debilitating injuries. (See
Ý4.3 herein.)

Diet error

An accident victim's operation to repair a skull fracture was delayed twenty-four hours because the patient was fed a regular diet by nursing personnel, despite a physician's order that the patient was to receive
nothing by mouth. The patient suffered permanent brain damage.

Drug addiction

A patient underwent unnecessary surgery that resulted in severe pain for which addictive medication was prescribed. The patient became a drug addict.

Drug reaction

A patient with a minor infection repeatedly was given sulfa medication without proper indication. The patient suffered Stevens-Johnson syndrome and permanent eye damage.

Errors in diagnosis generally

A child swallowed foreign metal material, and the attending physician
failed to diagnose the trouble. The child died.

A child ingested an alkaline solution and at the hospital emergency room
the physician used the wrong antidote. The child suffered permanent esophageal injury.

A child was born with congenitally dislocated hips, but the attending
obstetrician and pediatrician failed to diagnose the condition. There was permanent disability.

A patient suffered from cancer, but the attending physician failed to
diagnose the disease. The cancer spread and the patient died.

A patient ingested insecticide. His physician incorrectly diagnosed his
condition, and failed to administer the proper antidote. The outcome was permanent brain damage.

A patient suffered from ulcerative colitis of the sigmoid colon. His
attending physicians failed to perform a sigmoidoscope examination, and
the condition progressed, finally requiring removal of a large part of the colon.

A patient suffering from appendicitis was misdiagnosed; the appendix
ruptured, and the patient developed fatal peritonitis.

A woman had a cancerous condition of the leg, but an inaccurate diagnosis was made, and the patient was subjected to heat and ultrasonic treatments. The cancer spread and the patient died.

A patient who fell was taken to the hospital emergency room where a diagnosis of inebriation was made. The patient actually had a fractured spine and a severed spinal cord. The result was permanent paraplegia.

Following surgery, a patient complained of difficulty in swallowing and pain in his throat. His neurosurgeon mistook the symptoms for a sore throat and did not come to see him. The patient died the next day from
aspirating vomit. (See Ý9.5 herein.)

An on-call ophthalmologist, without seeing the patient, diagnosed his eye pain, sensitivity to light, and nausea as sinusitis, when in fact it was acute angle closure glaucoma. The patient lost sight in the eye.
(See Ý14.2 herein.)

A urologist who visually inspected and palpated a patient's suspected testicle tumor by surgically pulling it up through the inguinal canal concluded that it was only an inflammatory process when in fact it was
malignant. (See Ý17.4 herein.)

Experimental therapy

A patient complaining of low back pain received an injection of an experimental enzyme into a vertebral disc, causing a neurological deficit.

An experimental implantation of a muscle in the spinal cord resulted in quadriplegia.

Fractures

A patient suffered a fracture of the forearm that was improperly set,
resulting in Volkmann's contracture and permanent disability.

Even though a patient with a hip fracture was under a physician's care, X-rays of the hip were not made for nine days, during which time the patient was allowed to walk. The patient suffered severe narrowing of
the hip joint and permanent disability.

Heart surgery

A patient with coarctation of the aorta underwent surgical repair, but the heart-lung by-pass machine was not in operation, and the patient suffered nerve damage and paraplegia.

A patient underwent an unnecessary heart catheterization and developed a blood clot in the leg that was improperly evaluated. The patient suffered permanent disability.

Hemorrhage uncontrolled

A patient suffered from hemorrhage of esophageal varies. He was not given prompt and adequate treatment, and he died.

A patient was admitted to a hospital for minor surgery and was allowed
to suffer from an uncontrolled nose bleed, causing shock and irreversible brain damage.
Hysterectomies

During an hysterectomy the patient suffered a severance of the ureter
that went unnoticed. The patient lost a kidney.

A patient underwent an hysterectomy and experienced severe bleeding. Later a severe infection developed, as did other disabilities that required additional surgeries and transfusions.

Kidney operation

A child suffered from a kidney disorder. During surgery the wrong technique was employed and the kidney was lost.

Laboratory error

A laboratory report stated that a small growth removed from a patient's
arm was simply a benign inflamed mole, when in fact it was malignant melanoma. (See Ý16.3.)

Medication inadequate

A child suffering from meningitis was sent home with a prescription that was inadequate and inappropriate. The disease progressed, and the child suffered permanent brain damage. Pap smear not followed-u

A Pap smear taken from a patient who was complaining of vaginal bleeding showed "extremely suspicious cells," but her HMO gynecologist did not follow up with a later test, and her cervical cancer was not diagnosed for another two years. Also, the laboratory report was insufficient. (See Ý16.3.)

Priapism

A male patient suffering from an earache was given a diagnostic spinal tap, after which he experienced a painful erection of the penis (priapism). Treatment was delayed, and when finally accomplished,
bandages were applied too tightly, causing the patient to suffer permanent partial impotency and strictures of the urethra.

Spinal surgery

A patient complained of low back pain and underwent removal of a disc. There was nerve injury, causing the patient severe pain. Thereafter he had to undergo various operations on the spinal cord, all of which were
unsuccessful.

A patient was injured in a serious automobile accident and underwent back surgery. A tear in the dura was not diagnosed, and the patient developed meningitis and died.

A patient underwent low back surgery for the removal of a disc. During the approach, an instrument accidentally went through the spinal canal and into the patient's abdominal cavity. A major blood vessel was
lacerated, which almost took the patient's life.

A patient underwent low back surgery following a minor fall. There was no objective medical evidence whatsoever to justify surgical intervention. The patient suffered emotional and physical disability,
and attempted suicide.

A patient undergoing a cervical laminectomy suffered from a preexisting osteophytic condition that contraindicated extension or flexion of his head or neck more than ten to twelve degrees. The nurse anesthetist who intubated and anesthetized him was never told of this condition.
Following the operation, the patient awoke from the anesthetic a quadriplegic. (See Ý1.2 herein).

During an elective lumbar laminectomy, an orthopaedic surgeon caused a tear in the dura that resulted in a complete evacuation of cerebrospinal fluid, which in turn caused a brainstem herniation and death. (See Ý8.6
herein.)

Stomach surgery

A patient underwent surgery for removal of a portion of the stomach. Anastomosis (joinder of parts) failed, and the patient required further surgery with prolonged disability.

Unnecessary stomach surgery was improperly performed, requiring three
additional major operations, and a prolonged period of disability.

A patient underwent surgery for the repair of a duodenal ulcer. He suffered duct damage during the procedure, and required four additional operations. He was permanently disabled.

Surgical infections
An orthopaedic physician improperly reduced a fracture and failed to take adequate precautions to prevent infection. When the infection occurred, it was improperly treated. The patient suffered extended
disability.

A child suffered from a congenital defect in a lower extremity. Surgery was performed without proper drainage, and the child developed infection that went unnoticed. There was a delay in treatment, which necessitated further surgery, and resulted in permanent damage.

Tracheostomy injury
A tracheostomy was performed at an incorrect level, then the tube was improperly attended by hospital nurses. The patient suffered erosion of the innominate artery, and bled to death.

Transferred without consent
A patient suffered from pancreatitis. While being transferred to another hospital without consent, she suffered severe brain damage and remained in a comatose condition until she finally died several years later.

Treatment delayed when patient not accepted
An attending physician failed to diagnose coronary occlusion and the patient was not hospitalized. When the patient's condition deteriorated, and he finally was ordered into a hospital, the hospital refused to
accept him. He was transferred to another hospital but did not survive. Ý 25.6 Fee arrangement-Advancing costs.

Most medical malpractice cases for the plaintiff are handled on a contingent fee basis. Ordinarily this ranges from 331/3 to 50% of the recovery after costs are deducted "off the top."

Medical malpractice cases are such that usually there will be no settlement, nor even negotiations toward settlement, until the lawsuit has been filed and all essential depositions have been taken. In most
well-prepared cases, there is virtually a trial through the discovery process before the actual trial in court. Therefore, "sliding scale" contingent fees (i.e., 25% before the suit is filed, 331/3/% after the
suit is filed, 40% if the case goes to trial, 50% if the case goes on appeal, etc.) are not in vogue. But, of course, this is a matter of individual negotiation between you and your client, and should be in
accordance with your local custom and practice. Some states now have statutes limiting contingent fees in medical malpractice cases. 2

After the first interview with your client, you may deem it necessary to have him or her sign a contingent fee agreement, subject, of course, to your right to withdraw should you find the case unmeritorious after
additional investigation.

This fee agreement may provide, if permissible in your jurisdiction, that you have the right to advance costs on behalf of the client (and the right to be reimbursed). Ordinarily, the victim of medical
malpractice has been plunged into a financial abyss, and is unable to undertake the cost of the investigation and prosecution of the case. The matter will move much more expeditiously if you are in a position to
advance the necessary expense of investigation and litigation. These advances usually do not include any sums for medical care and treatment, however, and are limited to the necessary expenses for medical reviews
and examinations, and costs of investigation, depositions and the like.
Evaluation of the client.

If the case otherwise seems to have merit, the prospective client should be interviewed personally and in depth. You should determine early if he or she is trustworthy and truthful. It must be ascertained if the prospective client is merely vindictive, or possibly seeking to defeat a claim on the part of a physician or hospital for services rendered.

The filing of a medical malpractice case is serious business for everyone concerned, and if a lawyer encounters a prospective client who appears to be less than truthful, great care should be taken in
proceeding further. It may be that an injury has produced an emotional problem that can explain the client's apparent lack of trustworthiness. Under such circumstances, to be fair to everyone, I would recommend a psychiatric evaluation. Our office has encountered situations in which
the client has stated a certain set of facts to be true, but later on, perhaps in giving a deposition, we learn that the client has been lying. In such a case an attorney should offer to withdraw and allow the client to serve as his or her own attorney. If the client refuses to do so, the
attorney can ask the court to be relieved as counsel. One need not embarrass the client in doing so; it can merely be stated that "irreconcilable difficulties" have arisen between attorney and client.

The intelligence of the prospective client should be assayed. By intelligence I do not necessarily refer to I.Q., but more to an ability to communicate and express ideas adequately. After all, the vehicle
through which the case will be presented, in the final analysis, is the client.

The prospective client should be observed with regard to visible residual permanent injury - does he or she have any difficulty walking, bending, etc.? Generally, juries are not interested in giving any money unless there is visible residual permanent injury.

While every wronged plaintiff is entitled to redress for his injuries, you will not fare well before a jury if your client looks like a bum, even if the malpractice resulted in serious injury. In evaluating your
case, look at the patient, or if you have a wrongful death case, look at the family members. Do you like them? If you do, chances are the jury will, too.

Does the case have "shock value"?

The "shock value" of a medical malpractice case is important. It is a good idea for the attorney to test his or her own reaction to the client's story. Some authorities in the field believe that if a
plaintiff's own lawyer is not "shocked" by what happened to the patient, then a jury will not be, and the jury will follow the traditional path of favoring the medical profession regardless of what the medical evidence might be.

If the client does tell a shocker of a story, you should not jump to the conclusion that the client is exaggerating. A plaintiff's medical malpractice lawyer must acquire the philosophy that anything can happen in medicine. Probably the most bizarre happening one can imagine has occurred somewhere. I have seen meritorious malpractice cases rejected by inexperienced attorneys simply because they could not believe the client's story.

In a case handled by our office the patient suffered from cancer of the right kidney. The surgeon took out the left kidney! But that was not all. The patient remained in the hospital for some ten days before being transferred to another center to have his cancerous right kidney attended to, and in the transfer summary not a word was mentioned about the wrong kidney being removed!

And in another case, a patient with a fourteen-inch prosthesis in her left hip went into the hospital to have the device removed and a new one inserted. But instead of operating on the left hip, the surgeons opened up the normal right hip. Finding no prosthesis, they closed the incision
and proceeded to work on the other hip. Afterward, they tried to cover up their mistake by explaining to the patient's husband that they deliberately operated on the right hip to see if it had the same disease as the left!

Clients with poor memories.

Many prospective clients, especially those who have sustained serious injury, suffer from poor memories with regard to dates, places, and names. Do not be overly concerned; this is not necessarily a drawback, inasmuch as this kind of information can be procured from other sources:
friends, members of the family, physicians' records and hospital charts.

The client should be asked to present at the initial interview all available documentation, particularly billing statements. Oftentimes, billing information will provide clues as to what really has been done.
A particular surgical or medical procedure may be identified by way of the billing statement. Sometimes, a bill for anesthesia services will state the number of hours and minutes spent by the anesthesiologist in connection with the administration of a particular anesthetic given at
the time of surgery. All of these "building blocks" may be helpful.

Summary.

Basically, the bona fides and appearance of the prospective client must be evaluated in the first interview. If it appears that he or she has a legitimate and meritorious claim, with objective evidence of injury and residual damage, it will be worthwhile to proceed further with the investigation.

A detailed file memorandum of the entire interview should be prepared
Selecting defendants.

The handling of a medical malpractice case is unique in the practice of law. Although there is some kinship to cases involving legal malpractice, architectural malpractice, accountancy malpractice and even
products liability (sometimes called "manufacturer's malpractice"), in medical malpractice, often there is a vast array of players in the act. The talents of these players can vary considerably. In what appears at
first to be surgical malpractice, one may find that the surgeon was in fact brilliant, and it was the anesthesiologist who was incompetent. In the next case there may be an incompetent surgeon and a brilliant
anesthesiologist. Nurses, of course, also vary in ability, from a scale of "minus one" to "plus ten."

An important step in screening a medical malpractice case is to check the credentials of the health care providers who might become defendants in the lawsuit. More that fifty percent of the medical practitioners in the United States are board certified. This means that they have taken approved postgraduate training and have passed an examination required by the particular specialty board. When a physician holds himself or herself out as a specialist, in most cases it is safe to assume that he or she is board certified and has acquired the training and skills ordinarily possessed by physicians in good standing in the community who
practice the same specialty. But when a nonboard certified physician holds himself or herself out as a specialist in a particular field, there is a strong inference that that physician does not possess the
training and skills that should be possessed for that field, and if that physician is involved in an "untoward event," lack of training and skill just may be the cause.

Some hospitals grant staff memberships to board certified specialists only, and usually such hospitals have a good reputation in the community and within the medical profession. Hospitals with willynilly policies on
granting staff memberships ordinarily do not have a good reputation, and if there is an untoward event, it might be explained by this laxity in credentialing.

In determining who should be made a defendant, it should be borne in mind that any physician or other party, including hospital personnel, who has contributed to the client's injury should be joined as a party
to the lawsuit. At the same time, care should be exercised to not unnecessarily join an individual if he is innocent of wrongdoing, and if he has not participated in a conspiracy to protect the actual wrongdoer.
Collateral, remote, and innocent persons should not be subjected to a lawsuit.

I do not rule out a defendant merely because he or she does not have malpractice insurance. I will still go after them. Personally, I believe it is immoral for a physician to be in a position to injure someone and
not be able to pay the damages. I had a case in which I represented a lady who awoke from anesthesia to find her plastic surgeon fondling her. The surgeon, who had also performed the operation poorly, had no
malpractice insurance. We won a $500,000 verdict and collected $350,000 of it from the defendant by forcing the sale of his office building and home.

On the other hand, in evaluating your defendants, be on guard for the Marcus Welby type of personality. Some doctors, and even some hospital administrators, have such a forthright and wholesome appearance that jurors will not believe that they can be capable of wrongdoing. And, of course, the opposite is true: if you have an unattractive, "schlocky" defendant, you will have a lot going for you in a jury case.

In cases in which there has been a serious drug reaction, it is often necessary to join the drug manufacturer as a party defendant. (See Section 25.11 herein.) Attorneys who expect to handle medical malpractice matters should subscribe to and keep current the Physicians' Desk Reference (PDR), published by Medical Economics Company of Oradell, New Jersey. PDR is a compendium of most of the ethical drugs prescribed
in the United States. Listings on these drugs in PDR include information on dosage, precautions, contraindications, side effects, and the like. Also, the manufacturer of the drug is identified.

In numerous cases, a physician will claim that a patient had an idiosyncratic reaction to the drug, but it may be that the physician prescribed an incorrect drug, or violated the manufacturer's recommendations regarding usage or dosage of the drug. Also, the manufacturer may have failed to warn of certain hazards of the drug, or misrepresented its effectiveness.

Should a drug manufacturer, the maker of a medical or surgical device, or the manufacturer of surgical or hospital equipment, be made a party defendant to the lawsuit, theories of strict liability in tort, specific
acts of negligence, and breach of warranty must all be considered.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Review by medical expert.

After procurement of as many medical reports as possible, and photostatic copies of physicians' office records and the patient's hospital charts, you should have a competent physician review the material to ascertain whether there has actually been negligence or a violation of applicable standards of medical or hospital practice, and
whether there is a causal relationship between such negligence and the client's injury.

Because of the discovery rules that appertain in most states, it is advisable to meet personally with your reviewing expert rather than have him prepare a report at this stage of the case. You should dictate his opinion into memorandum form, which in most instances will then be considered your work product and thus immune from direct discovery by your opponent.

Obviously, the question arises as to how one finds a good medical reviewer. This, of course, is not always an easy task. It may be possible to procure a physician from friends and associates; occasionally you will find one who at least is willing to review your file and briefly advise you. Probably such a reviewer will want to remain anonymous, and it is doubtful if he will be willing to give testimony for you in any form. Another possible source is the faculty of a medical school. Although preferable, your reviewer need not be a
specialist in the field involved; if he has a good basic medical education, he should be able to review your pertinent material, conduct necessary research, check with specialist friends, and give you an
adequate, objective opinion.

Another method an attorney might employ to find a medical expert is to call or write the author or editor of a leading treatise on the subject matter involved. Our office is presently representing a 43-year-old lady
who underwent a posterior lumbar interbody fusion (PLIF). The surgeon used an oversized bone plug and the lady became paralyzed (see Section 8.6, this volume). When we were taking the deposition of one of the
defense's experts, he referred to a brand new book on the PLIF procedure. Our office got in touch with the editor of the book, who agreed to look over our client's medical records. The editor believes
that our client's case involves gross negligence and he said he will so testify. Inasmuch as the defense expert has stated in his deposition that this new book is the "Bible" on this type of surgery, we anticipate
that our editor will be a devastating expert at trial.

If an attorney is presented with a potential major medical malpractice case, and he is unable to procure a medical reviewer, it may be best to seek out an attorney who specializes in malpractice litigation and refer
the matter. It is very risky for any attorney to proceed to trial with significant malpractice litigation without available competent medical consultation on a continual basis. This does not mean that it cannot be
done, however. Some plaintiff's lawyers have been able to prosecute successfully a malpractice case, even through trial and appeal, primarily on the strength of their own medical research. And, of course,
many have achieved very attractive settlements without the help of medical consultation. But these are the exceptions rather than the rule.

Even where help is promised by a medical adviser, the malpractice plaintiff's attorney, in many cases, will find that he must conduct much medical research on his own. Thus, where full professional assistance is
not available, or where circumstances are such that he or his client cannot undertake the necessary cost of a thorough evaluation by an expert, the plaintiff's attorney must be prepared to rely on what he can
find in the medical and medicolegal literature. However, if the case goes to trial, success almost always depends upon the testimony of an expert witness.
 
Misspelled words used to find this page 6 of 7.epxert, xepert, exper, expet, exprt, epert, xpert,testimony, testhymony, testhymonie, tstimony, tetimony, tesimony, testmony, testiony, testimny, testimoy, testimonie, test1nomy, testinomy, testimomy, testimoyn, testimnoy, testiomny, testmiony, tesitmony, tetsimony, tsetimony, etstimony, testimon, estimony,damage, danage, damaeg, damgae, daamge, dmaage, admage, damag, damae, damge, daage, dmage, amage,caps, casp, cpas, acps, cap, cpa, acp,,statutory, stachuterie, statutorie, statutolie, statutery, satutory, statuterie, sttutory, stachutory, stautory, stachutoly, stattory, stachutery, statuory, stachutorie, statutry, stachutolie, statutoy, statutoly, statutoyr, statutroy, statuotry, stattuory, stauttory, sttautory, sattutory, tsatutory, statutor, tatutory, attorney, atterney, attoney, attrney, attorneie, atorneie, attorny, attolneie, attorey, atolneie, aterneie, atterneie, aterney, atorney, attolney, atolney, attolneys, atolneys, attorneys, atorneys, attolnaize, atternaize, attornes, atornaize, attrneys, atolnaize, aterneys, aternaize, atterneys, attornys, attoreys, attoneys, attornaize, atorn3ys, atorm3ys, attornesy, attornyes, attorenys, attonreys, attroneys, atotrneys, tatorneys, fs, feas, fes, fees, phs, f3s, fese, efes, periodic, peridic, perioic, periodc, puriodic, puriodyc, periodik, puriodik, priodic, poriodik, peiodic, peliodik, perodic, periodyc, poriodic, poriodyc, peliodic, peliodyc, per1od1c, periodci, perioidc, peridoic, peroidic, peirodic, preiodic, epriodic, periodi, eriodic,payment, pyment, pament, payent, paymnt, paymet, peighment, peighmant, paymeignt, peighmeignt, paymiegnt, peighmiegnt, paymant, paymants, payments, paymnts, paymets, paymens, pyments, paments, payents, peighments, peighmants, paynemts, paymemts, paymenst, paymetns, paymnets, payemnts, pamyents, pyaments, apyments, ayments, collateral, collatoral, colatoral, collatorar, colatorar, cllateral, corlatoral, collteral, coratoral, collaeral, corlatorar, collatral, collateal, collaterl, corlaturar, colatelal, corlatelal, collatelar, colateral, coratelal, colatelar, collatural, corlatelar, corlateral, colatural, corateral, collaterar, corlatural, colaterar, coratural, collaturar, corlaterar, colaturar, coraterar, collatelal, co1at3ra1, co1atera1, collaterla, collatearl, collatreal, collaetral, colltaeral, colalteral, clolateral, ocllateral, source, soorce, soulce, souce, sooce, sorce, solce, sourec, soucre, soruce, suorce, osurce, sourc, soure, surce, ource, ruul, luul, ruur, luur, lure, rure, ruel, ruer, rule, luel, luer, lule, rewel, lewel, ru1e, rlue, urle, pre-judgnemt, pre-judgmemt, pre-judgmetn, pre-judgmnet, pre-judgemnt, pre-judmgent, pre-jugdment, pre-jdugment, pre-ujdgment, prej-udgment, pr-ejudgment, per-judgment, rpe-judgment, pre-judgmen, pre-judgmet, pre-judgmnt, pre-judgent, pre-judment, pre-jugment, pre-jdgment, pre-udgment, prejudgment, pr-judgment, pe-judgment, re-judgment, pre-judgment, interest, iterest, inerest, intrest, inteest, interst, interet, enterest, intorest, entorest, intelest, ingelest, ingerest, inturest, intearst, ingearst, enturest, inerset, intrset, inteset, interset, iterset, enterset, intorset, entorset, ingerset, inturset, intelset, ingelset, enturset, eigntures, intures, interes, ineres, iegnteres, entures, inteles, intres, iegnteles, eignteres, intears, intees, iegntears, eignteles, ingeres, inters, iegngeres, eigntears, ingeles, iegngeles, eigngeres, ingears, iegngears, eigngeles, enteres, iegntores, eigngears, intores, iegntures, eigntores, entores, iteres, 1nterest, imterest, interets, inteerst, intreest, inetrest, itnerest, niterest, nterest, patient, patent, patiet, ptient, paient, patint, patieignt, patiiegnt, pateint, patant, pateignt, patiegnt, pat1ent, patiemt, patietn, patinet, paitent, ptaient, aptient,
 General Introduction
How big is the problem? Medical malpractice is a bigger problem than most people want to admit. Approximately 80,000 people die in the United States each year due partly to medical malpractice (based on an extensive study entitled "Patients, Doctors and Lawyers: Medical Injury, Malpractice Litigation, and Patient Compensation in New York," published by the Harvard Medical Practice Study in 1990, a report to the State of New York). These statistics have since been confirmed by other studies performed in California and New Jersey. Meanwhile, a RAND Corporation Study regarding health care quality by Mark A. Schuster, M.D., Ph.D., Elizabeth A. McGlynn, Ph.D, and Robert H. Brook, M.D., Sc.D. revealed that autopsy studies showed rates between 35 and 40% of missed diagnoses with most resulting in death. Numerically, this is more than three fully loaded jumbo jets crashing every week with no survivors. That number of airplane crashes would mobilize many commissions, government investigations, and a huge effort to prevent the crashes. Unfortunately, since medical malpractice injuries happen separately and privately, the effect is not the same.
 
Even more disturbing, these numbers are only based on hospital statistics. They do not include deaths from missed diagnoses or medical negligence that occurred in clinics, private doctors' offices, or other treatment facilities.
 
Claims filed. At the same time, surprisingly few claims are filed. Only 2 percent of people injured by physicians' negligence seek compensation through a lawsuit (according to a 1991 article in the New England Journal of Medicine). A separate report from the Harvard School of Public Health ("Harvard Medical Practice Study") found slightly higher numbers. Their research found that only one in eight patients that suffers due to medical negligence ever files a lawsuit and only one in sixteen recovers any damages. However, despite the slightly higher percentage, the study concluded, "Our data make clear, then, that the focus of legislative concern should be that the malpractice system is too inaccessible, rather than too accessible, to the victims of negligent medical treatment."
 
Insurance. Many people do not realize that their physician is not required to be insured. If not insured, there is little hope of collecting compensation if the doctor injures an innocent patient through malpractice. For details on how insurance premiums have greatly exceeded insurance payouts for many years, see Insurance Statistics. (Summary: for the period 1984 through 2002, Hawai`i medical malpractice insurers took in $350.8 million in premiums, and paid out only $174.6 million in claims.) According to the U.S. Congressional Budget Office, medical malpractice insurance premiums amount to less than 1% of health costs.
 
Local regulation. There is little effective regulation of quality by the state licensing board. Only about 2,000 doctors (one-third of one percent) are disciplined each year. Usually, the charges involve substance abuse or financial fraud. Rarely is a physician disciplined for injuring a patient through medical malpractice.

If I think medical malpractice might have happened, but I don't really know, what should I do?

First, be aware of the statute of limitations. You may have a valid claim, but if you wait too long, the claim is lost even if it is valid. The general rule is that the claim must be filed within two years after the malpractice, or two years after you reasonably should have known there was malpractice. However, there are a number of tricky exceptions, so do not give up just because two years may have passed already. As a general rule, delay helps the other side more than it helps you.
 
Second, you can generally forget about evaluating the claim yourself, or trying to "work it out" with the doctor or clinic or hospital. Usually, the "real" decision-maker is the doctor's insurance carrier (if your doctor is even insured, some are not), and the doctor's attorney. These people are not paid to help you, or to be candid with you. They are paid to defeat your claim. You need an experienced professional to help you evaluate your claim. Without an attorney, the doctor's attorney and insurance company usually will not take you seriously.
 
Contact any law firm experienced in medical malpractice cases. There is no charge for an initial evaluation of your case. These cases are very different from other kinds of personal injury cases such as car accidents. Special rules and laws apply, and special tactics and strategies are important. If your case has any merit at all, an experienced attorney should be willing to sit down with you and explain all your options, without charge. Then you can make a full and informed decision about whether or not you want to go forward.

Generally, what must I prove? In every medical malpractice case in Hawai`i, you must be able to prove three things: (a) breach of the standard of care; (b) causation, and (c) damages.

Breach of the standard of care. You must prove that the doctor made a mistake -- a mistake which a reasonable and prudent doctor would not have made under the same circumstances. Generally, this requires an expert witness (another doctor) to come forward and testify that your doctor did make a mistake. As you can imagine, this is not an easy process, since doctors do not like to testify against each other. Finding good expert witnesses is the critical part of most medical malpractice cases.
 
Causation. In addition to showing the doctor made a mistake, you have to show the doctor's mistake caused an injury to you. To look at it another way, the reason people go to see doctors is because they are sick. Even the best medical treatment may be useless. So, you have to be able to show that IF the doctor had not made the mistake, then the patient would have gotten better, or would not have been injured as much. Again, it is critical to get an expert witness who is willing to testify to this.
 
Damages. Finally, you have to show what damages resulted from the doctor's mistakes. This could be anything from death to serious injury. It may include lost wages, medical bills, agony, mental suffering, or the loss of a loved one. Often, economists and other experts are necessary to calculate and present these damages in court.

What is the process of a medical malpractice claim in Hawai`i? Generally, a medical malpractice claim in Hawai`i follows a series of steps.

Get the medical records. It is usually impossible to accurately evaluate a medical malpractice claim without obtaining all relevant medical records. If you want to obtain your own medical records, we have provided a sample letter. Unfortunately, the hospitals and doctors often charge high rates for obtaining these records. Charges of 50 cents to $1.00 per page, or more, are common. Pursuant to Hawai`i Revised Statutes, Section 622-57, the law says:
 

If a patient . . . requests copies of his or her medical records, the copies shall be made available to the patient unless in the opinion of the health care provider it would be detrimental to the health of the patient to obtain the records. If the health care provider is of the opinion that release of the records to the patient would be detrimental to the health of the patient, the health care provider shall advise the patient that copies of the records will be made available to the patient's attorney upon presentation of a proper authorization signed by the patient.

If an attorney for a patient asks a health care provider for copies of the patient's medical records and presents a proper authorization from the patient for the release of the information, complete and accurate copies of the records shall be given to the attorney within a reasonable time not to exceed ten working days.

In the case of a deceased person, a personal representative... may obtain copies...

If no personal representative has been appointed, the deceased person's next of kin... without court order, may obtain copies of or may authorize the health care provider to release copies of the deceased person's medical records...  (See HRS 622-57.)

Reasonable costs incurred by a health care provider in making copies of medical records shall be borne by the requesting person.

Expert opinion. After getting the medical records, an experienced attorney can often make a preliminary evaluation; however, more often, the attorney will want to discuss the records with an expert witness, or send the records to a potential expert witness for evaluation. This is where the high costs of a medical malpractice case really begin. (A well-qualified expert witness will often charge $250.00 to $400.00 per hour to review all the records and render an opinion, and there is no guaranty the first one will testify for you. Sometimes it takes 2-3 experts before you find one who is willing to testify for you.) However, usually your attorney will "front" or pay these costs for you, and only get them back if they win the case through a settlement or trial verdict.
 
Medical Claims Conciliation Panel. The Medical Claims Conciliation Panel ("MCCP") is part of the Department of Commerce and Consumer Affairs, State of Hawai`i. The law requires that most medical malpractice claims in Hawai`i first go through the MCCP process. Basically, this involves non-binding arbitration, where three persons act as judges and listen to evidence about your claim and issue a decision. The MCCP decision is not binding. Even if you lose at the MCCP, you can still file a lawsuit. At the same time, if you win, the doctor or hospital is not required to pay. In other words, no matter what the MCCP does, either side can still require the case go to court.
 
Circuit court lawsuit. After the MCCP panel makes its decision, unless the case settles (which is rare), you will then need to file your circuit court lawsuit. The lawsuit will usually take 1-2 years to resolve, either through settlement or trial.
 
Kaiser cases. People who have health care coverage through Kaiser Permanente (Kaiser doctors or the Kaiser clinics) will probably not be able to file lawsuits, but will instead have to file for binding arbitration. This is usually required by the Kaiser health plan documents you or a family member signs when they become eligible for Kaiser coverage, often through an employer's health plan. The bottom line is that most Kaiser plan participants give up their right to go to court, and instead agree to resolve any complaints through binding arbitration. This method has advantages and disadvantages to regular court, which your attorney can explain in detail depending on the particular nature of your case.
 
Military cases. Cases involving Tripler Army Medical Center do not go through the MCCP process, and they are filed in federal court as opposed to state court. However, they first go through a Federal Tort Claims Process the federal government has set up. These cases usually end up as a judge trial, which has advantages and disadvantages over a jury trial.
INDEX OF STATES
Click the state you  for  medical malpractice regulations that you would like to learn more about including: Statutes of Limitations, Contributory or Comparative Negligence, Joint and Several Liability, Contribution, Vicarious Liability, Expert Testimony, Damage Caps, Statutory Cap on Attorneys' Fees, Periodic Payments, Collateral Source Rule, Pre-Judgment Interest,Patient Compensation Funds and Physician Insurance, Immunities, Arbitration
Alabama Kentucky North Dakota
Alaska Louisiana Ohio (revised 2006)
Arizona Maine Oklahoma
Arkansas Maryland Oregon (revised 2003)
California Massachusetts Pennsylvania (revised 2003)
Colorado Michigan (revised 2002) Rhode Island
Connecticut Minnesota South Carolina
Delaware Mississippi (revised 2002) South Dakota
District of Columbia Missouri Tennessee
Florida Montana Texas
Georgia Nebraska Utah
Hawaii Nevada Vermont
Idaho New Hampshire Virginia (revised 2003)
Illinois (revised 2002) New Jersey Washington
Indiana New Mexico West Virginia
Iowa New York Wisconsin
Kansas (revised 2002) North Carolina Wyoming

 

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Statutes of Limitations, Contributory or Comparative Negligence, Joint and Several Liability, Contribution, Vicarious Liability, Expert Testimony, Damage Caps, Statutory Cap on Attorneys' Fees, Periodic Payments, Collateral Source Rule, Pre-Judgment Interest,Patient Compensation Funds and Physician Insurance, Immunities, Arbitration

 
 Actionable MEDICAL MALPRACTICE
. . .(also called medical negligence) occurs when a physician fails to properly treat a medical condition and the negligent act or omission is the cause of a new or aggravated injury to the patient. Obviously the physician cannot be responsible for the original underlying medical problem. The negligence in medical malpractice cases can occur in a variety of situations including but not limited to:
  • There may be "medical malpractice" by a delay or failure in diagnosing a disease; or
  • A surgical or anesthesia related mishap during an operative procedure could constitute "medical malpractice"; or
  • Malpractice may involve the physician's failure to gain the informed consent of the patient for an operation or surgical procedure; or
  • A physician who has made the correct diagnosis, may thereafter commit malpractice by failing to properly treat the disease process;
  • Misuse of Prescription Drugs or a Medical Device or Implant can also be medical malpractice.

    • It is the attorney's obligation to determine as quickly and efficiently as possible whether there is a good, actionable case. This is so because MEDICAL MALPRACTICE cases are by their very nature, complex, expensive to pursue, have a high risk of no recovery, and often involve a client's "personal" attachment. The first step in the process involves the potential client entering into an agreement with the attorney in which agreement sets forth the method of attorney compensation. Typically the attorney agrees to advance all costs, only to be repaid costs in the event of recovery, and to work on a contingent fee basis, that is the attorney would receive a percentage of the gross recovery. Thus, the client will endure no economic loss in the event of no recovery.

    During the initial client contact, the attorney will obtain a detailed medical history during which the attorney should obtain the names of all physicians and hospitals who have rendered medical treatment to the client. It is valuable for a client to prepare a written summary (timeline) of all medical treatment including dates, doctors, symptoms, conversations with medical providers, and treatment received. Thereafter, all relevant medical records are obtained by the attorney. In many medical malpractice cases, proof of negligence is found in these records.

    In order to determine if there is "medical malpractice" it is necessary that a medical expert be retained to consult with the plaintiff's attorney.


    This expert should be well qualified to give a medical opinion, and is therefore frequently board certified in the relevant field of medicine. If, after a thorough review of the pertinent medical records, the medical expert concludes "with reasonable medical certainty that the action or inaction of the defendant physician was the cause of damage to the plaintiff," it is appropriate to file suit against the physician/hospital. Filing suit begins the legal advocacy process which may cover a period of several years. During this period both parties exchange a series of documents. In the first stage, the legal pleading stage, the parties set forth with precision their legal theories. In the second stage called, the discovery stage, the facts to support the various legal theories are developed. If the parties are not able to resolve their differences the case, now in its third stage, will go to trial before a judge and jury
     

    Malnutrition or Dehydration

    Malnutrition and Dehydration in Nursing Home Residents Can be a Sign of Nursing  Home Neglect or Nursing Home Malpractice or Nursing Home Abuse
     

    What is malnutrition and what are the health consequences of malnutrition in nursing home residents?

    A person is malnourished when he or she is not getting enough nutrients. It means not only a lack of food but not getting enough vitamins and minerals into the body. Malnutrition can be caused by insufficient, missed or non-nutritious meals. Taste, smell and appetite decrease in old age. 

    Depression and dementia occurs frequently in nursing home residents and that can contribute to weight loss. In addition, medications, gastrointestinal problems and swallowing disorders interfere with nutritional well-being.  The consequences of under-nutrition for elderly nursing home residents can be very serious. Malnutrition is associated with infections, especially urinary tract infections and pneumonia, pressure sores, anemia, weakness that can result in immobility, hypotension, confusion and memory loss, impairment of organ function, decreased wound healing, hip fractures and death.

    Undernourished nursing home residents become weak, fatigued, bedridden, apathetic, and depressed.  Compared with well-nourished hospitalized nursing home residents, the undernourished have a five-fold increase in mortality in the hospital.[1] Malnutrition can weaken the immune system and cause an elderly person to become frail.

    What is dehydration and what are the health consequences of dehydration in nursing home residents?

    Inadequate hydration occurs when a person’s loss of body fluids is more than the intake of fluids.  A nursing home resident can become dehydrated when the body loses too much water either through illnesses such as severe or prolonged attacks of diarrhea and vomiting, high fevers, or sweating in hot weather.

    Inadequate hydration occurs when a person’s loss of body fluids is more than the intake of fluids.  A nursing home resident can become dehydrated when the body loses too much water either through illnesses such as severe or prolonged attacks of and high fevers, or sweating in hot weather.

    Nursing home residents are at greater risk of becoming dehydrated and it can be particularly dangerous for them.  The propensity for dehydration is particularly high for elderly nursing home residents because of their decreased thirst sensation. Dehydration can worsen existing health problems. Dehydration can lead to delirium, electrolyte abnormalities, dangerously low blood pressure, renal impairment, and ultimately to death.  

    Signs of dehydration include persistent fatigue, muscle weakness, lethargy, dizziness, nausea, confusion, or an increased heart rate.  Dehydration is one of the most frequent causes of hospitalization after age 65.

    Can Malnutrition and Dehydration be a Sign of Nursing Home Neglect or Abuse?

    Dehydration and malnutrition can be indications of neglect and abuse in nursing homes. Part of the Nursing Home Reform Act of 1987 makes it federal law for nursing homes to provide adequate nutrition for nursing home residents. Nursing homes must frequently assess the nutritional needs of residents and ensure residents have “well balanced, palatable meals.” In spite of this mandate, malnutrition and dehydration is an “ominous skeleton lurking in the nursing home closet.”[2] Studies show that 35 to 85 percent of the elderly living in the nation’s more that 17,000 nursing homes residents are malnourished. [3]   

    Nursing home employees must be able to recognize the occurrence and consequences of malnutrition and dehydration. Malnutrition and dehydration lowers the quality of life for nursing home residents and it is usually completely avoidable. There are many factors that can cause malnutrition and dehydration in nursing home residents:

    •  Insufficient staffing or inadequately trained staff - one of the most common reasons is that too few staff are available to ensure nursing home residents are getting enough to eat and drink.  In addition to ensuring that adequate numbers of staff are available, it is imperative that the staff is appropriately trained in proper feeding techniques. Neglect may be unintentional.  A caring aid who is poorly trained may not know how to provide proper assistance. This important task is often left to overworked staff whose background and training may not prepare them for the complications that can arise related to the feeding of nursing home residents.  In addition to insufficient staffing, there is a 93 percent per year staff turnover rate in nursing homes.[4]
    • Failure to provide supervision over staff or nutritional services.  A nursing home may fail to provide supervision over those who are providing nutritional services or it might fail to provide the proper education for nursing assistants on nutrition and feeding techniques.
    • Poor Eating Environment.   Some nursing home environments can contribute to a nursing home resident’s lack of proper nourishment.  Noise levels, impersonal staff, institutional food that doesn’t allow for food preferences or choice, uncomfortable seating and over-reliance on liquid supplements can all contribute to malnutrition. As many nursing home residents require some form of eating assistance, often it is easier for the nursing home staff to offer liquid supplements instead of sitting with the resident during meals to make sure they eat enough food to get the vitamins and minerals they need.

    Preventing malnutrition and dehydration in nursing home residents requires time, effort and adequate staffing. Nursing homes that accept patients who are at risk for dehydration and malnutrition must be equipped to provide the skilled help necessary to prevent it. When an assisted living facility or nursing home accepts residents whose need or acuity levels exceed the staff’s skill or training then it can be liable for nursing home neglect and nursing home abuse.Our firm represents persons injured or killed as the result of negligence committed by nursing homes, assisted living facilities and other health care providers. 

     

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