Suppose you have had a bad outcome with a procedure carried out by a doctor or some other health care provider and want to look into whether you have a medical malpractice case. Properly investigating a potential malpractice claim is a lot more involved than you may think.
As part of a three part series, this blog will focus on the process by which we determine whether you have a medical malpractice case.
This is the first of three blogs on this topic. Be sure to read Part 2 on
getting ready for the malpractice trial, discovery, and the realities of settlement vs trial, and Part 3 on
the medical malpractice trial process next.
Step One: The First Phone Call
Most of our clients first contact us by telephone. When you call SUGARMAN about looking into a medical malpractice case, you will speak with one of our partners. During this call, we will ask a few questions concerning your potential claim. We ask questions designed to learn whether the next step, an in-person meeting would be helpful. For example, we limit our practice to Massachusetts so we’ll make sure that your case, if we represent you, can be filed in a Massachusetts court. Also, we make an initial assessment whether the statute of limitations has run and whether the type of case is within one of our practice areas. Once we have done this we set up an in-person meeting to explore the malpractice issue in detail.
Step Two: The Initial Meeting At Sugarman
You cannot adequately represent someone if you don’t know everything you need to know about them. The initial meeting will begin the process by which we learn about you, your life and what happened to you. Be prepared to relate your past medical history, specifically that pertaining to potential medical negligence and liability, including prior accidents, injuries or diseases, the identities of all your treating doctors and all hospitals or healthcare facilities where you received treatment. What has happened in the past may not appear relevant to you, but it could impact the standard of care required of the person you believe committed malpractice.
Our inquiry into the events surrounding your potential medical malpractice case is, frankly, exhaustive. We need to know everything that happened in the order in which events took place. Who, what, when, where how and why is the only approach we take. Conversations had with treating doctors, nurses or technicians are important and we need to know about them. We also need to know about any contact you may have had with hospital administrators or risk management personnel. Did you keep any diaries, notes or calendars? Have you received any correspondence from the individuals involved? What were your injuries and how have they affected your life? Who were your subsequent treating doctors and are you still treating?
Once we have taken a history the next step is to educate you about what the law defines as malpractice and what you must do to prove it. An unfortunate medical result, no matter how tragic, is not malpractice. For example, known and recognized complications that can occur during surgery will probably fall into this category. On the other hand, if a surgeon fails to take appropriate measures to avoid a known and recognized complication that may be malpractice.
The central question in any medical malpractice case is twofold: Was there a departure from the standard of care, and is that departure directly and causally related to your injuries? The law defines the standard of care as that which is expected of the average practioner in a particular specialty under similar circumstances given the advances in the profession and the resources available to the physician at the time. In other words, what would the average surgeon do or refrain from doing under the circumstances of your case? The only way to prove a breach of the standard of care is by having another physician render an expert opinion that it was breached and caused your injuries. Depending on the type of case, it may be necessary to have more than one expert give opinions on your case.
Before the initial meeting ends we will have you sign medical authorizations so that we can obtain your medical records. Often a client brings their records to the meeting, but experience has shown that it is rare for a client to have a complete page by page copy of the records needed to evaluate a claim. In medical malpractice cases, there is no substitute for having complete records for an expert to review, and failure to have them can prove fatal to your case. The drawback to making sure you have all the records you need is that it often takes time to compile them.
Step Three: Reviewing The Medical Records
At SUGARMAN, medical record reviews are conducted by the lawyers you met with at the initial meeting. Unlike most malpractice firms, it is our attorneys–and not outside services or in house nurses–who determine whether you have a case. While that determination requires input from experts, we believe that such important decision must be made by the people who will work on your case and eventually try it to a jury.
Medicine, like most professions, has its own language, procedures and practices. Ask any layperson to read a hospital record and they will quickly get lost in unfamiliar abbreviations, confusing laboratory data and seemingly indecipherable handwriting. Decades of experience have taught us to know and understand the “language” of medicine and its brevity codes. We can interpret test results and diagnostic reports. Most importantly, we know what to look for and where to find it in a medical record.
There are two crucially important by-products of having your own lawyers conduct an initial record review. First, when we speak to experts about what happened to you we’ll know what we’re talking about and we’ll be able to focus an expert’s attention on what is important. Secondly, it is the first step in acquiring complete command of the facts of your case. We believe that without a complete command of the facts you cannot adequately represent your client in the courtroom. It is our job to explain very sophisticated and complex medical concepts to a jury in a very straightforward and understandable way. That job begins with knowing everything that happened in a medical record and why.
Once we have thoroughly reviewed your records and, if necessary consulted the medical literature to understand the issues presented, we make a determination whether we should have the records reviewed by a medical expert.
Step Four: Consulting An Expert
The medical expert who renders opinions for a patient is perhaps the most important witness in a medical malpractice case. The law requires expert opinions on the issues of standard of care and causation, and we seek the best in the field to review your case. Finding experts can be difficult as it is very rare to find a doctor who is willing to testify against a colleague in the same state. Conversely, there is no shortage of experts willing to testify on behalf of a colleague who has been sued.
Over the years, we have become familiar with highly qualified experts from major medical centers and teaching hospitals across the country. The approach we take in requesting an expert evaluation is somewhat unique as we only look for an expert who is strongly confident that malpractice occurred.
The sad reality of medical malpractice litigation is that the overwhelming majority of cases that go to a jury are won by the physician or other care provider. Your case deserves the best and most qualified expert we can find to convince a jury that you should be compensated for negligent injuries. If not, the legal system will only end up disappointing you the way the medical system did.
Call us at 617-542-1000 or email firstname.lastname@example.org.
Be sure to read Parts 2 and 3 of this article:
- Your Medical Malpractice Case: Here’s What to Expect – Part 1
- Your Medical Malpractice Case: Here’s What to Expect – Part 2
- Your Medical Malpractice Case: Here’s What to Expect – Part 3