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Is It Malpractice? How You Can Find Out.

Includes:
• Investigating your own malpractice case
• Hiring the best lawyer if you decide to
pursue a lawsuit

(This article is adapted and expanded from an article I
wrote for the Washington Post Health section a number of
years ago.)

The doctor said my friend’s rectal bleeding was from
hemorrhoids — nothing to worry about. It turned out to be
colon cancer.

A widow told me how she had taken her husband to the emergency room after he woke up with terrible chest pain.
The doctors said it was indigestion from something he ate
and sent them home.

Two hours later, he was dead on the kitchen floor with a heart attack — the bottle of Maalox near his outstretched
hand. Medical malpractice? Possibly so. But it’s also possible that in both cases the doctors were blameless.

Is It Malpractice? How You Can Find Out.

How do you tell?

There are many clues. When a routine illness turns into disaster without warning, when doctors abruptly turn
defensive and uncommunicative — these are the signs that sometimes make patients and their families start to ask
difficult questions about the quality of the medical care.

If you’re reading this now, chances are you or a loved one is facing this issue. How to proceed is a delicate and
difficult task.

Like most people, if something has taken an unexpected turn for the worse, you want to know why. But
you don’t want to alienate caregivers who still might be
important to ongoing care.

I have worked for twenty years advising families who face potential medical malpractice issues and guiding them
through lawsuits if the facts warrant bring a suit (and usually they don’t, for reasons I will explain). The best way to
proceed, I believe, is to follow some simple, logical steps. Step One: Ask the caregivers non-judgmental
questions about what happened.

Your first step is to find out what happened. As Joe Friday said, “Just the facts, ma’am.” This is not the time to
make judgments. There will be time for that later. You don’t necessarily have to confront the main caregiver whom you
fear has caused an injury. In most hospital settings, there are numerous doctors and nurses who are knowledgeable about
the case and can fill in at least part of the picture.

Ask them what they know. If they don’t know, ask them:

• Who else should I talk to?

• Do they recommend any Internet research, books,
articles, etc., which can help you understand the
situation?

What if they won’t talk to you, or speak on lyin
generaliti es, or technicalities that you can’t understand? Here’s where it helps to know your
rights.

The patient (or the patient’s representatives if the
patient is incapacitated) has an absolute right to know what
has happened to them. You can read it right in the American
Medical Association Code of Ethics (section 8.12), which is
worth reprinting in full (I’ve italicized some of the key
language):

“It is a fundamental ethical requirement that a physician should at all times deal honestly and openly with patients.
Patients have a right to know their past and present medical status and to be free of any mistaken beliefs concerning their
conditions. Situations occasionally occur in which a patient suffers significant medical complications that may have
resulted from the physician’s mistake or judgment. In these situations, the physician is ethically required to inform the
patient of all the facts necessary to ensure understanding of what has occurred.

Only through full disclosure is a patient able to make informed decisions regarding future medical care. Ethical responsibility
includes informing patients of changes in their diagnoses resulting from retrospective review of test results or any other
information. This obligation holds even though the patient’s medical treatment or therapeutic options may not be altered by
the new information.

FACT KIT FOR INJURY VICTIMS

Concern regarding legal liability which might result following truthful disclosure should not affect the physician’s honesty
with a patient.”

Issued March 1981;
Updated June 1994.

More recently, the AMA has backed off this noble ethical position with a new statement that shows more
concern for doctors’ legal liability: Ethics section 8.121, issued in
December 2003, states in part:

“When patient harm has been caused by an error, physicians should offer a general explanation regarding the
nature of the error and the measures being taken to prevent similar occurrences in the future. Such communication is
fundamental to the trust that underlies the patient-physician relationship, and may help reduce the risk of
liability.” (Emphasis added.)

A “general explanation,” of course, could turn out to be so broad and vague that it is no explanation at all. But the
old ethical provision, section 8.12, is still on the AMA’s books and is worth calling to the attention of health care providers
who refuse to be informative.

Some doctors argue that they should not have to explain anything to patients that could land them in a lawsuit. A few
state legislatures have responded with laws that protect anything a doctor says by way of a p o l o g y o r
explanation from being used against the doctor in court.

But how sincere is an apology when it is offered under such a legal cloak of protection? Other health
care providers, notably the Veterans Administration Hospital in Lexington, Kentucky, have adopted a policy of full
disclosure and let the chips fall where they may.

The
Lexington VA hospital has found that patients appreciate the candor and are no more likely to sue than at other hospitals
where patients find it harder to learn the facts.

You can read more about the Lexington VA program at: http://www.annals.org/cgi/reprint/131/12/963.pdf
Step Two: Ask the hospital to investigate.

You can ask the hospital to do its own investigation, especially if the injury is particularly serious. You may meet
someone called the hospital “risk manager.” The “risks” they manage are mainly risks of lawsuits, and only secondarily
risks to patient safety. So once the risk manager is involved, you may not learn much useful information. Unfortunately
the official results of any hospital investigation are protected by law in most states from disclosure to patients or their
lawyers.

However, you can expect at least some explanation will be forthcoming from the hospital’s official investigation,
so it might be worth trying.

Step Three: Ask for an independent investigation by a health care quality agency.
Your choices here are limited. It’s a waste of time to ask the local or state medical society to investigate. They have no
power to do anything and are likely to side with the providers. (But sometimes the medical society will have a
reasonably honest mediation service for billing disputes. Go here for a list of medical society ethics committees:

The Joint Commission on Accreditation of Healthcare Organizations, which is a joint project of various medical and
hospital private associations, will investigate a quality of care complaint but won’t tellyou the results. Go to

Government agencies which investigate complaints of
poor quality health care include:

• The state or local health department can investigate
outbreaks of infection to find if proper sterilization
procedures were followed. Unfortunately most health
departments have no ability to go beyond infections to other
issues, nor do they have the manpower or expertise.

• The state licensing board has the power to revoke or
suspend any health care provider’s license. But this is done
typically only in egregious circumstances, such as illegal drug
use or other criminal behavior. Most boards are grossly
understaffed and unequipped to deal with ordinary
negligence or carelessness that hurts patients. You can find a
list of licensing boards at the umbrella organization for
licensing boards: the National Board of Medical Examiners,

• The local Medicare Quality Improvement
Organization (QIO). Never heard of it? Most people
haven’t. But these groups, which were set up by Congress

and funded by the taxpayers to improve the quality of care
given to Medicare beneficiaries, have the muscle to get to the
bottom of incidents in hospitals. And patients have a right to
find out what the QIO learned.
How do you get the Medicare QIO to do an
investigation? A Medicare beneficiary, or someone acting on
the beneficiary’s behalf, must file a written complaint. The
subject of the complaint has to concern “the quality of
services … not meeting professionally recognized standards of
health care.” (The statute is 42 U.S.C. § 1320c-3(a)(14).) In
the mid-Atlantic area, complaints should be directed to:
District of Columbia:
Delmarva Foundation for Medical Care
www.dfmc.org, 202-293-9650
1620 L Street, NW, Suite 1275
Washington, DC 20036
Maryland:
Delmarva Foundation for Medical Care

7240 Parkway Drive
Suite 4001
Hanover, Maryland 21076
410-684-3362
Virginia:
Virginia Health Quality Center

4510 Cox Rd. Suite 400
Glen Allen, VA 23060
You have to hunt diligently on the web site to find how to
make a formal complaint. Here’s the page for D.C. and
Maryland:
and the page for Virginia:

Thanks to a lawsuit brought against the federal
government by Public Citizen, you have a right to learn the
results of any investigation done by a QIO. The Court of
Appeals for the D.C. Circuit ruled that: “At a minimum, this
means that the [QIO] must disclose its determination as to
whether the quality of the services that the recipient received
met ‘professionally recognized standards of health care.’”
Public Citizen, Inc. v. Department of Health and Human
Services, 332 F.3d 654 (D.C. Cir. 2003).
Step Four: Hire a lawyer – but not just any lawyer.
There are three issues here. Why hire a lawyer? And
what lawyer to hire? And what happens if things don’t work
out with the first lawyer?
Why hire a lawyer?
However candid or guarded the health care providers
appear to be in your dealings with them, there is only one
way to get to the bottom of whether malpractice has
occurred. That is to have the treatment evaluated by expert
physicians of the same specialty with no connection to the
treating doctors.
If you have medical connections among your family or
friends, you can try to do this on your own. Usually, though,
people turn to lawyers to advise them and act as go-betweens
in obtaining independent evaluation. The good news is that
there are many highly competent lawyers who will do this
initial investigation for you without charging for their time.
It takes time to find the
right lawyer and get the best
advice. This can be
frustrating, but in the long
run, it’s best to go slow.
Rushing into a lawsuit when
one is still feeling shock and
anger is usually unwise.
Lawsuits can linger for years
and involve maddening uncertainty. Worse, the legal process
forces a victim to relive the experience over and over in
microscopic detail.
A careful study beforehand helps to insure that the
decision to sue — or more often, not to sue — is the right one.
The evaluative process starts with getting copies of all the
pertinent medical records.
You can expect to be asked to sign a number of release
forms which the lawyer will then use to request the records.
This often means contacting half a dozen or more doctors
and hospitals for office notes, X-ray films, lab tests and other
pertinent data.
Then the lawyer must find the right specialist to go over
the records. Sometimes the expert will want to see the
patient; more often a good preliminary evaluation can be
made from the records supplemented by well-focused
statements from the patient and family members about the
chronology of key symptoms and treatment events.
The expert looks at the case with two questions in mind:

• Did the care violate established standards of practice?
• Did the care make a significant difference in worsening
the patient’s health?
If the answer to either or both questions is no, there is
no malpractice case. And that is the usual situation.
Experienced medical malpractice lawyers report that nine out
of ten times, they ultimately tell the family that there is no
case — even where circumstances at first suggested serious
wrongdoing.
This reality is at odds with the common myth that
lawyers will encourage meritless suits in hopes of scoring a
quick settlement from the insurance company. The fact is
that companies insuring doctors fight claims tooth and nail,
both meritorious ones and those without merit. Industry
statistics show that more than half of all malpractice claims
are closed with no payout to the patient, and of cases that go
to trial, doctors win about 70 percent.
That is why good malpractice lawyers, whose fee is
nothing if they lose, pick and choose their cases carefully.
What lawyer to hire?
How do you find a good lawyer to make the initial study
of the case? It’s hard enough to find a good doctor – and
there you have plenty of word-of-mouth advice from friends
about doctors they have dealt with. Few if any of your
friends will have experience with a subspecialty like medical
malpractice lawyers.
If you turn to the Yellow Pages, you will find page after
page of bold-faced headlines from attorneys who claim to
h a n d l e m e d i c a l
malpractice cases. The ads
feature claims like:
• “No fee if no recovery.”
• “Free initial consultation.”
• “Millions recovered for our clients.”
Each of these statements can be literally true, and yet
mean very little about whether the lawyer is right for your
case. “No fee if no recovery,” for example, is true for
virtually all lawyers who represent victims in personal injury
cases. And nearly all of these lawyers give a “free initial
consultation.” And any lawyer who has practiced more than
a few years will be able to say “millions recovered” because it
doesn’t take many cases to reach that number.
The Internet is another resource where consumers need
to be careful. A Google search for “malpractice lawyer”
turns up a mixture of:
• Malpractice “wannabe’s.” These are lawyers who
would like to grab your case and either settle it quickly for
low dollars for you (but a high return for the lawyer’s time
investment) or refer it out to a competent lawyer with a
referral fee.
• Lawyer “referral services” which screen lawyers only by
their willingness to pay cash to the web site that is referring
them cases.
• Real lawyers who are experienced and will do a good
job for you.
So how do you find a real lawyer?
Here are three resources for finding lawyers who have
been selected by their colleagues as among the very best.
• The Best Lawyers in America. (www.bestlawyers.com)
This book features thousands of lawyers across the country in
all legal specialties, including personal injury.
• Inner Circle of Advocates. (www.innercircle.org) This
has a much shorter list of exclusively personal injury lawyers.
The Inner Circle is limited to 100 of the top plaintiffs’
personal injury lawyers in the United States. Again, the
lawyers in this group have been elected by their peers for
their professional accomplishments.
• The Lawdragon 500 Leading Plaintiff Lawyers in
America. (http://www.lawdragon.com/index.php/
newdragon/nom_honor_plaintiffs)
Lawdragon’s list of 500 leading plaintiff lawyers was
compiled by its staff from interviews with leading lawyers and
from client votes. Lawdragon also rates other types of
lawyers.
If you can’t find a lawyer near you in one of those
books, you will need to ask some pointed questions to make
sure you are hiring a real lawyer and not a “wannabe.” Here
are some of the most important questions:
1. What kind of cases does this lawyer handle
on a day-in, day-out basis?
Some lawyers are general practitioners who do a little of
everything, including personal injury practice. Their work
may include occasional medical malpractice cases or suits
against drug manufacturers. But if they don’t do this type of
work every day, injured people who hire them are at a
disadvantage. It takes a specialist in any legal field – whether

serious personal injury lawsuits or other specialties like
immigration or real estate – to really know that field
backwards and forwards, to practice at the highest skill level
– and to get the best results for the client.
2. How long has the lawyer been working in
the field in which you need a lawyer?
By and large, lawyers who work on personal injury
lawsuits for injured persons charge the same fee no matter
how long they have been practicing. (This is the contingency
fee, a percentage of the amount recovered.) That means that
for the same fee, you could get a lawyer with one or two years
of experience, or a lawyer with 20 years of experience. As in
any other field, experience helps!
3. Does the lawyer try lawsuits in court, or is
every case settled out of court or referred to
other lawyers to try?
This is an important question that many lay people never
think to ask. In every city, there are “clearinghouse” lawyers
who advertise heavily and get many clients as a result – and
who then either settle their cases quickly or refer them to
other lawyers to do the real work. (The “clearinghouse”
lawyer gets a piece of the fee for making such a referral.)
On the other hand, real lawyers actually go to court and
try cases the old-fashioned way: in front of judges and juries.
Real lawyers settle cases out of court too, but they also
compile a track record of verdicts that they will tell you about
if you ask. One problem with “clearinghouse” lawyers is that
they are generally interested in volume and quick turnover.
This means they try to settle cases quickly, sometimes at the
expense of the client whose good case may be shortchanged
in the lawyer’s rush for a fee.
Some lawyers even brag about their “fast work” and
“quick results.” In the malpractice world, that usually means
the client is being sold short. Serious malpractice cases take
time to develop and to obtain the best results. Another
problem with “clearinghouse” lawyers is that the client can
become confused about who their real lawyer is. They hired
the “clearinghouse” lawyer, but that lawyer is not their real
lawyer.
Clarification: In the personal injury field, lawyers often
collaborate with each other on cases. There is nothing wrong
with that. It can be a good way for a client with a serious
injury to get two lawyers for the price of one, because the
lawyers typically share between themselves the same
contingency fee that would be charged if only one lawyer was
handling the case.
4. What is the lawyer’s track record of verdicts
and settlements?
The longer the lawyer’s list of successful case outcomes,
the better it usually is for the client. The insurance companies
who defend personal injury and malpractice cases know who
the attorneys are in your area who actually go into court to
try cases and who do not.
The insurance companies use that information to
evaluate their risk. One of the first questions an insurance
adjuster will ask when a serious claim comes in is: who is
representing the plaintiff? Be sure to ask about recent
verdicts and current cases to find out whether he or she is
currently active — and successful — or whether the claim to
expertise is based on past and faded glories.
5. Does the lawyer teach other lawyers?
Lawyers who frequently lecture at legal meetings (called
“CLE” – or continuing legal education) have the esteem of
their peers. Lawyers who regularly write articles in legal
publications also can usually be counted on to know what
they are talking about.
6. Is the lawyer a member of legal
organizations that specialize in representing
injured people?
Major organizations include the American Association
for Justice (AAJ ) formerly Association of Trial Lawyers of
America), AAJ state affiliates like Virginia, Maryland or D.C.
Trial Lawyers Associations, the Etheridge Society (an
organization of Virginia medical malpractice plaintiff
lawyers), and the Inner Circle of Advocates.
All these organizations provide extensive education for
their members. You can certainly find a lawyer who doesn’t
belong to any of these groups, but why would you want that
lawyer to represent you in a serious injury lawsuit?
7. Has the lawyer won any honors or awards?
Remember, you want to hire the best lawyer for your
case. Especially if it’s a serious injury, you can attract toplevel
lawyers to work on your case. One mark of a top lawyer
is any awards and honors they have been given by legal
organizations. Leadership of bar associations is another
type of honor. Lawyers who are elected to leadership posts
tend to have a lot of hustle that has attracted the admiration
of their peers.

8. Does the lawyer have the financial and
personnel resources to take on my case?
Lawsuits involving serious or catastrophic personal
injuries can be very expensive to take to court. A typical case
can involve three, six or even more medical specialties, each
one of which needs to have an expert witness hired to deal
with issues in that specialty. If a lawyer lacks the resources to
fund a case properly, corners can be cut at the expense of the
client’s case. Or a client can be pressured into taking an
inadequate settlement. It pays to hire a lawyer who has the
financial resources to take a case all the way to trial, if
necessary.
9. Ask the lawyer, “Who will actually handle
my case”?
Find out if the lawyer plans to actually work on your
case, or give it to someone else to work on. You need to know
the skill and experience of the lawyer who will actually work
on the case, not just the lawyer you first see. There’s nothing
wrong with having more than one lawyer on the case. Top
lawyers typically run teams of lawyers who handle different
aspects of the case. The senior lawyer may delegate more
routine functions to less experienced lawyers. Find out how
the team functions.
Let’s say you’re past the point of hiring a lawyer. That
raises our next question: What happens if it doesn’t work out
with the first lawyer you hire? What if you’re reading this
after the fact? You’ve already signed on with a lawyer, and
now you’ve concluded that he or she is not right for you. The
good news is that it’s not hard to fire a lawyer, especially if it’s
early in the case. If the lawyer has spent significant time and
money on the case, he or she may be entitled to some share
of the eventual fees plus expense reimbursement.
Sometimes a better option than firing the lawyer is to ask the
lawyer to bring in as co-counsel another more experienced
lawyer or law firm.
Usually this can be done with no extra charge to the
client; the two firms will split the work and divide the
eventual contingent fee accordingly.
The other problem that happens between lawyers and
clients is that the lawyer may get cold feet about the case.
Sometimes, especially with inexperienced or poorly
capitalized lawyers, this happens when the lawyer reaches the
end of his or her competence and/or bank account. If
you’ve followed the advice above in screening the lawyer you
hire, that should not happen.
But good lawyers also sometimes “fire” their clients.
There are two reasons that good malpractice lawyers may
decline to proceed with your case:
First, the injuries may not be serious enough to make a
lawsuit cost-effective. When a new potential client is on the
telephone, one of my first questions is: Did the care cause a
serious and permanent injury that has affected the victim’s
entire life? Injuries that qualify include loss of a limb, loss of
an eye or some other important organ, or some other serious
and permanent disability. (Of course, death obviously
qualifies as a serious and permanent change.) Injuries that
looked serious at first but have resolved with no permanent
consequences are difficult to attract a competent lawyer. The
economics of running a law office and paying for everything
necessary to pursue a malpractice case – expert witnesses,
court reporters, etc. – dictate this.
Second, the lawyer may conclude that the case is too
hard to prove. The
lawyer may decide that
the health care providers
did nothing wrong. Or it
may be difficult to prove that anything the providers did
wrong caused a serious injury. This latter issue – the lawyer
shorthand term is “causation” – is a common Achilles heel in
malpractice cases. For example, if a cancer could have been
diagnosed three months sooner by more diligent attention
from the doctor, that three months might not have mattered
in the ultimate outcome. If the delay in diagnosis lasted 12
months or 24 months, that is much more likely to pass the
test of causation.
Some lawyers give potential clients the brushoff with
excuses like “I’m too busy.” That usually means “I don’t
think you have a very good case.”
In any event, when the injury is very serious, it can pay
to get a second legal opinion. I have had seven-figure
outcomes in cases that other lawyers have declined to pursue,
and I’m sure that some of the cases I’ve declined have turned
out to work in other hands.
Conclusion
When pursuing a potential malpractice issue, the
bottom line is that the best advice — as in so many situations
— is to be careful and ask lots of questions.
Are there any questions too stupid to ask?
No.

 

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