A MEDICAL MALPRACTICE OVERVIEW FOR NON-LAWYERS
In the United States we are fortunate to have the best medical system in theÂ world. Sometimes, however, even skilled people make mistakes that they shouldÂ not. When those mistakes happen, the results can be catastrophic to patientsÂ and their families. It is estimated that between 44,000 and 98,000 people dieÂ each year because of medical mistakes. That is more annual deaths than from carÂ accidents. That is more annual deaths than from breast cancer. And it does not evenÂ account for the many who are seriously injured by medical negligence.Â And these medical errors cost the American public billions of dollars per year in additional medical bills.Â One could argue that it is a silent epidemic.
I have been involved in medical malpractice cases for 30 years. That experienceÂ is essential to properly evaluate and pursue a medical malpractice claim. IÂ will work closely with the appropriate medical professionals to carefullyÂ screen and prepare each case. In addition to representing plaintiffs in actionsÂ against doctors, in the past I have also defended doctors. That experienceÂ helps me to predict how the other side will try to defend a case.
Deciding to file a lawsuit against your doctor or a hospital is a big decision,Â and should not be made lightly. They help sick people, and, in large part,Â provide competent services. But if a mistake has been made, resulting inÂ serious injuries or death, I have the experience and ability to help you.
“Medical malpractice” is when a licensed healthcare provider, such as a doctorÂ or a nurse, acts negligently. Examples of this are a mistake during surgery, orÂ the failure to recognize symptoms of a problem that should be recognized.Â The typical person does not know what a doctor or other healthcare professionalÂ should or should not do in a particular circumstance. Therefore, it isÂ necessary in virtually all cases to get expert witnesses involved. ExpertÂ witnesses are people who are in the same field as the person that we are claiming was negligent. Â Expert witnesses first help us evaluate the claim, and then, if the claimÂ appears to have merit, assist us during any litigation.
The first requirement that must be shown in litigation is that the healthcareÂ provider violated the standard of care. This basically means that they failedÂ to do what a reasonably competent person of the same specialty would have doneÂ under the circumstances. If the healthcare provider fails to follow theÂ standard of care, then they are negligent. Expert witnesses would help usÂ establish for the jury both what the standard of care required, and explain howÂ the healthcare provider did not meet that standard.
Proving negligence (that is, proving a violation of the standard of care), isÂ not enough to make a case. Two additional elements need to be shown.
- First, you have to show that the negligence was the cause of a specific injury;
- Second, you have to show that damage or loss occurred as a result of theÂ injury. It is quite common for a doctor or nurse to commit negligence, but for the negligence not to cause any significant harm. For instance, think of a situation where the doctor mistakenly prescribes high blood pressure medication, instead of diabetes medication, but it is discovered a day later and corrected. In that circumstance, even thought the doctor was negligent, there would be no damage done. So we must show the link between the negligence and the injury and damages. Â This is often a significant subject of controversy because many patients inÂ medical malpractice cases are sick, injured, or in need of care even before anyÂ malpractice occurs. This is typically what brings them to a doctor or a hospital inÂ the first place. So in many cases, what must be sorted out by the experts, andÂ eventually, the jury, is what damage or loss is due to the original conditionÂ of the patient, and how much is due to the malpractice.
In Michigan, damages in a medical malpractice case are broken down into twoÂ categories:
- Non economic damages are those damages that are not susceptible to aÂ mathematical calculation, such as pain and suffering, humiliation, anxiety, andÂ loss of companionship.
- Economic damages are those damages that can be mathematically calculated, suchÂ as loss of earning capacity, lost income, medical expenses, therapy expenses,Â lost services around the house, and so forth.
There are no limitations on the amount of economic damages that can beÂ recovered. Because of strong political pull by doctors, the Michigan State LegislatureÂ passed laws limiting the amount of non-economic damages that can be obtained inÂ a medical malpractice case. These are called “damages caps.” These raiseÂ slightly every year based upon the Consumer Price Index. In 2016, these damagesÂ caps are $438,800, except in a few types of cases (e.g., hemiplegia,Â paraplegia, or quadriplegia, severely impaired cognitive capacity, or aÂ permanent loss of or damage to a reproductive organ), in which case the damagesÂ cap is $783,500 in 2016.
Statute of Limitations
A statute of limitations is the amount of time that you have to file a lawsuit. Â Once the statute of limitations expires, your claim is Â barred forever, even ifÂ it is a valid claim.
The statute of limitations for a medical malpractice claim is generally twoÂ years from the date that the malpractice occurred. There are some factors whichÂ may alter this, but the bottom line is that if you wish to explore a claim forÂ malpractice, you should immediately consult with a medical malpractice attorneyÂ once you have any inkling that there may have been negligence. You should doÂ this even if you believe that the statute of limitations might have expired
There is no benefit to waiting, and it is often beneficial to the lawyer if heÂ or she is aware of the possible claim soon after it occurs. Â If there was a death that was possibly caused by medical malpractice, then theÂ statute of limitations starts running on the date that the probate courtÂ appoints a personal representative of the probate estate. Therefore, if theÂ personal representative has any notion that malpractice occurred, and wants toÂ explore that claim for the estate, he or she should be aware that the statute.
The Process of AssertingÂ a Medical Malpractice Claim
After one or more expert witnesses is consulted to determine whether you have aÂ legitimate medical malpractice case, then the law in Michigan requires that aÂ Notice of Intent to File a Medical Malpractice Claim be sent to any knownÂ possible defendant (that is, the person(s) you might bring a suit against).
This Notice of Intent is required to contain an assortment of information, butÂ basically it is to inform the potential defendants of the claims against them,Â and of the factual basis for the claims. It is important that the specificÂ statutory criteria are covered in the Notice of Intent. Therefore, it isÂ generally ill-advised for the claimant to draft his or her own Notice of IntentÂ without the assistance of an experienced medical malpractice attorney.
Generally, the Notice of Intent must be sent to potential defendants six monthsÂ before the lawsuit can be filed. The theory is that this might prompt the potential defendants toÂ enter settlement discussions before suit is brought. Substantial settlementÂ discussions prior to litigation, however, occur infrequently.
If the Notice of Intent does not lead to settlement discussions, the next stepÂ is to file suit. This includes the filing of a Complaint, along with anÂ Affidavit of Merit. Â The Complaint is the basic document that sets forth in general terms theÂ factual basis for the claim, and what you are seeking in terms of damages. InÂ Michigan it is customary to indicate that damages are “in excess of $25,000.” Â Accompanying the Complaint must be an Affidavit of Merit. This is an affidavitÂ which is signed under oath by a healthcare professional who specializes in theÂ same field as the healthcare provider whose conduct is being called intoÂ question. For example, if the claim is against a cardiologist who isÂ board-certified by the American College of Cardiology, the person who signs theÂ Affidavit must have the same qualifications. The Affidavit of Merit must setÂ forth in detail why the medical malpractice claim is deemed to be meritorious.
If more than one specialist is being sued in the case, then there must be anÂ Affidavit of Merit accompanying the Complaint with respect to each specialty.Â It should be noted that it is critical that the Affidavit of Merit is properlyÂ drafted. If it is not, the court may dismiss the case, and the suit willÂ considered to never have been filed. Depending on the circumstances, theÂ statute of limitations may have expired in the meantime. This illustrates whyÂ it is so important to consult an attorney with substantial medical malpractice experience.
After the Complaint has been filed, the defendant is given a certain period ofÂ time to answer the Complaint. Shortly thereafter, the court will set a scheduleÂ for the litigation to occur.
Soon after the defendant answers the Complaint, pre-trial discovery begins. Pre-trial discovery consists of the exchange of information between the parties soÂ that the plaintiff can find out more about what really happened and theÂ defendant can find out more about the plaintiff and the plaintiff’s claim. ThisÂ typically includes, among other things, interrogatories (written questions),Â the exchanging of records and other documents, and depositions. A deposition isÂ the taking of testimony under oath of the parties and other key witnesses. Â Typically, the opposing attorney will ask the questions. The attorney whoÂ represents the party is also present. A court reporter will take down every question and answer. The purpose of the deposition is to obtain an oralÂ exchange of information on issues deemed to be important to the case by theÂ attorneys.
Depending on the court and the complexity of the case, pre-trial discovery canÂ take anywhere from six to 18 months. Throughout the case, either side might bring one or more a motions before theÂ court. A motion typically is used to resolve a single, specific issue in theÂ case, although in certain circumstances a motion can resolve the case entirely.
After discovery is complete, a process called “Case Evaluation” will occur. Â Case Evaluation is where a panel of three experienced attorneys who are notÂ connected to the case briefly review the merits of a case and give an advisoryÂ opinion on its settlement value. If all sides accept that value, then the caseÂ settles. If any party rejects it, then the case does not settle. WhileÂ occasionally this results in settlement, typically it does not in medicalÂ malpractice cases.
Court Rules also allow for the court to hold settlement conferences with theÂ parties, and for voluntary mediation or facilitation. These are processes inÂ which a trained neutral third party meets with the parties to see if the caseÂ can be resolved.
If the case does not settle before trial, then obviously the case is triedÂ before a jury. The trial will usually take between three days and three weeks,Â depending on the complexity of the case. Â It is safe to say that most medical malpractice cases are resolved beforeÂ trial. But in some cases, the perspectives of the parties are so different the case simply must be tried to a verdict.
I always assume when I agree to take a case, that the case will need to beÂ tried to a verdict. This ensures proper preparation, and zealousÂ representation. Ironically, it may also increase the likelihood of anÂ appropriate settlement.
One thing that must be understood is that a bad result at a medical facilityÂ does not necessarily mean that there has been malpractice. The human body hasÂ shortcomings, and bad results are sometimes unavoidable no matter how competentÂ the medical treatment has been. Therefore, it is critical to explore fully whyÂ you think you have a case, and to find out whether there is a factual andÂ medical basis to support your belief. To do this several things must be done.
First, a fee agreement must be signed. Typically, plaintiff medical malpracticeÂ attorneys are compensated on a contingent fee basis. This means that theÂ attorney’s fees and charges will be related to the amount of the recovery. TheÂ standard percentage arrangement is one third of the “net recovery.” The netÂ recovery is the total amount of damages (either by way of verdict orÂ settlement), minus the costs of prosecuting the litigation. If there is noÂ recovery, then the attorney takes no fee. But in that circumstance the clientÂ is still be responsible for any out of pocket costs incurred. You will also be given the option of paying on an hourly basis of $250.00 perÂ hour instead of the contingency fee arrangement. This Â would have to be paidÂ monthly as based upon the amount of time that was spent on the case that month,Â and would be paid regardless of the result. Most clients opt for theÂ contingency fee arrangement where an attorney’s fee is paid only if the case isÂ successful.
After the fee agreement is signed, then medical release forms must be signed soÂ that all pertinent records can be obtained. If the claim involves wrongfulÂ death, and a probate estate has not already been created, I will start anÂ estate in probate court and have someone appointed, typically a family member,Â as a personal representative to obtain records from the healthcare providers. Â I will then review all of the patient’s pertinent medical records, including x-rays or other tests, to preliminarily assess whether it appears there might have been any significant flaws in the medical care.
If this preliminary assessment suggests a possibility of negligence, the caseÂ will then be sent to one or more medical experts to help evaluate the claim asÂ discussed previously.
Why Should I have Tim Taylor Handle the Case?
I have been practicing law since 1986. I have been involved in dozens ofÂ medical malpractice claims, both on behalf of plaintiffs and defendants. TheÂ Michigan legislature has passed laws making the filing and pursuit of medicalÂ malpractice cases complicated and difficult. Because of my experience, I willÂ meet these requirements.
I am also fully aware of the unlimited resources that the insurance companiesÂ are willing to spend to defend a case even though the case against the doctorÂ it insures may have complete merit. I will engage them in that battle andÂ achieve the best result that I possibly can for you. Your case will be handledÂ by me personally, and not by an associate or junior lawyer. I am nearly alwaysÂ accessible, and will always be honest with you about your case. I will not takeÂ your case merely to try to settle it. If I file suit in your case, it isÂ because I believe that there has been medical malpractice, and it means that IÂ am willing to take the case to trial unless a sufficient settlement amount isÂ offered.