Medical Malpractice: 10 Reasons
Why Most Victims Won’t Recover a Dime
Despite popular opinion about the “skyrocketing” increase
in malpractice suits and awards, the number of suits has not increased since
1996, and in most cases, plaintiffs receive nothing. There are a variety of
reasons why patients do not recover any compensation for injuries suffered
while receiving medical care. Most of these issues stem from general
misconceptions about medical malpractice. It is important for potential
malpractice victims to understand these issues while seeking counsel to
represent their case.
1. Patients don’t know they are victims of medical
Studies show that roughly 2.9 to 3.7 percent of admitted hospital
patients suffer some sort of preventable injury as a result of medical
management (i.e., not from the original medical condition). Even more
management-related injuries occur outside of the hospital. These injuries
are a result of a physician /administrator’s affirmative mistake, or that
person’s failure to act in a particular situation. Types of mistakes include
errors in diagnosis, use of automated materials, and inappropriate delay of
However, one of the most common errors occurs with administering
medication. The Massachusetts State Board of Registration in Pharmacy
estimates that in Massachusetts alone 2.4 million prescriptions are filled
improperly each year, the majority of which involve providing the wrong
strength drug, or the wrong drug altogether. Each layer of communication
introduces another opportunity for error. Improper diagnoses and negligent
supervision of trainees are other common errors, and both have led to
disastrous results in many cases. Up to 98,000 patients are killed each year
as a result of preventable medical errors, the eighth leading cause of death
in the U.S., yet only 10,000 cases of malpractice are filed each year. In
the vast majority of cases, however, the fact that a poor medical outcome
was caused by malpractice is hidden from the patient.
2. No autopsy was ever performed.
Remember that we must prove both carelessness on the part of the doctor
or hospital and that the carelessness resulted in death or injury. In a
medical malpractice case that results in death, it is extremely difficult to
prove that the death occurred because of the malpractice without an autopsy.
This is because there are so many reasons why a person might have died, but
we must prove that at least one of the reasons for the death was the
negligence of the doctor or hospital.
3. A physician’s poor bedside manner does not constitute negligence.
In the vast majority of cases, even egregiously poor bedside manner
cannot be considered in determining whether a physician was legally
negligent in providing treatment. We have reviewed many cases where arrogant
doctors provided care and the patient was injured. It just doesn’t matter
legally that the doctor was a jerk. We must prove, with expert medical
opinion that the treatment departed from good and accepted medical care, and
not bad bedside manners, that caused injury.
4. The patient suffered no significant damages.
As we noted above, the legal system is not set up to handle small medical
malpractice cases. We decline hundreds of cases a year where it appears that
the doctor was careless but the resulting injury is not significant. A
pharmacist may incorrectly fill your prescription, and you might get sick
for a few days. If you have a good recovery, however, you probably don’t
have the basis for a case. That’s because the costs of pursuing the case
will be greater than the expected recovery. Our Court system may not be
perfect, but it does act as a filter to keep out all but the most serious
cases of medical malpractice.
5. The physician or hospital’s mismanagement did not necessarily cause
the injury suffered.
As discussed earlier, it is very difficult to prove that medical
wrongdoing was the reason why the patient suffered the injury that he or she
received. The insurance companies have many standard defenses including, for
example, that (1)The injury was an unforeseeable consequence of the initial
condition/injury, (2)The injury was due to the patient’s non-compliance with
prior medical advice, (3)The risk of the patient’s particular injury was a
known, recognized, acceptable risk (acceptable to whom?), (4)Some other
party was responsible for causing the injury, or (5)The injury was caused by
a previous illness or disease.
Medical malpractice claims must show that the doctor’s substandard care,
more likely than not, was a substantial factor in causing injury.
6. The injured patient has not retained an experienced attorney.
The world of medical malpractice claims is a world unto its’ own. It has
its’ own special rules and laws. We believe that it is imperative that an
experienced medical malpractice attorney or an attorney that is ‘teaming up
with’ an experienced malpractice attorney represent you.
7. The statute of limitations has expired.
This is the time a person has to start a lawsuit. The time limit is very
different for a city, state or municipal hospital than it is for a private
hospital or doctor. One reason that you should consult an experienced
medical malpractice attorney early is to determine when the statute of
limitations expires in your case! DON’T LET YOUR TIME RUN OUT without
knowing your legal options!
8. Jurors have been biased by the insurance industry.
The insurance industry has spent millions of dollars funding research to
suggest that there is a widespread problem with respect to medical
malpractice suits. These studies claim that excessive verdicts are causing
malpractice insurers to raise their premiums, forcing physicians out of the
medical profession. It has been proven that increased medical malpractice
premiums have nothing to do with lawsuit verdicts! Even the American
Insurance Association has said that lawmakers who enact “tort reform” should
not expect insurance rates to drop! Jurors who hear the insurance company
propaganda then award less of a verdict than they would normally have deemed
appropriate. Unfortunately, after the verdict is reduced on appeal,
malpractice victims often receive less than is necessary to pay their
medical bills for treating the subsequent injury that was caused by the
malpractice. Even your doctor probably believes that by capping, or reducing
damage awards, this will cure all that is ill with the legal system.
Nothing is further from the truth. The medical malpractice insurance
companies are in business to make money. Not to pay out money. The more they
pay out in claims, the less profit they and their shareholders take home. I
have always asserted that if the doctors wanted satisfaction in reducing
their inflated premiums, they should look no further than their own
malpractice insurance companies. By demanding rate reductions and by
threatening to obtain coverage elsewhere, the insurance companies have to
realize that their rates must be re-evaluated. Also troubling is why
physicians have not banded together to open competing insurance companies in
order to obtain reduced rates.
9. The injured patient is unable to hire good qualified medical experts.
You cannot win a malpractice case without a medical expert. A good expert
who is willing to testify can be hard to find. It is becoming increasingly
difficult to find doctors who are willing to stand up for what is right and
to right a wrong. It takes time and money to find the best experts for your
case. This is one area where insurance companies have an advantage. If they
have a case that is particularly bad for their doctor, they may show the
case to many experts before they find one to support the defense (or concoct
a defense). They can afford to hire many experts. Most plaintiffs cannot
afford to have ten experts look at their case in order to determine which
expert will work ‘best’ for them.
Increasingly, doctor’s professional groups are now attempting to bring
claims against doctors who testify against other doctors. These claims seek
to revoke the doctor’s board certification or punish the expert doctor for
testifying for a patient. This has happened recently in the field of
neurosurgery and obstetrics and gynecology. The potential threat of
professional repercussions for testifying on behalf of a patient will
significantly inhibit many doctors from helping injured victims in seeking
justice and proper compensation.
10. Juries like doctors.
Folks sitting on juries rely on doctors when they’re sick. They trust
their doctor. Their family uses the doctor. The doctor has trained for many
years to learn their specialty. How can the doctor be faulted for something
that would have happened even if good care were rendered? Fighting a
malpractice case is an uphill battle. But, with proper information, the
right facts, the right experts and an experienced attorney, you stand a much
better chance of knowing the risks of taking your case to trial.
Gerry Oginski is an experienced medical malpractice and personal injury
trial attorney and practices exclusively in the State of New York. He has
tirelessly represented injured victims in all types of medical malpractice
and injury cases in the last 16 years. As a solo practitioner he is able to
devote 100% of his time to each individual client. A client is never a file
number in his office.
Take a look at Gerry's website
http://www.oginski-law.com and read his free special reports on
malpractice and accident law. Read actual testimony of real doctors in
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