Legal Articles



September 28, 2010


Medical Mistakes -- A Primer on the Basics of Medical Malpractice

By Stephen Haskell

I. An Overview of Medical Malpractice Basics
Do you think you might have a viable medical malpractice case? While our office is available to assist you in reaching this decision at no charge, you might first want to think again. Medical malpractice suits are among the most challenging and costly form of litigation, and layered over by misconception.

A medical malpractice claim is not, strictly speaking, simply about a bad outcome or poor result. Unfortunately, these occur under the best of circumstances, and are not necessarily attributable to an error by a health care provider. As an example, we frequently receive calls about infections occurring in a hospital setting. In the overwhelming majority of cases, a hospital is ironically a prime location to acquire an infection. Despite the best efforts by medicine to eradicate this growing problem, infections acquired in a hospital setting are actually on the rise due to increased resistance of various organisms to current antibiotics.

A viable medical malpractice claim can only be established by demonstrating a health care providers action fell below the standard of care, a legal buzzword discussed later in this article. For purposes of an initial screening, a so-called bad outcome must be put to the side for the time being, the science analyzed. All too often clients, and even lawyers, fail to look beyond a bad outcome or poor result, caught up in the emotion of the near term.

There are other practical challenges to keep in mind when assessing the viability of a potential medical malpractice claim, all of which combine to make this area of the law uniquely challenging. Chief among these issues is a prevailing attitude in current American culture implying claims against health care providers are to be discouraged. We have all heard about the rising crisis of health care costs and the effort, at least by some, to link so-called junk lawsuits to an unrelated health care dilemma. And, we have all heard the demand for so-called tort reform, intended to weed out not only lawsuits which probably should not have been brought in the first place, but in the process also limit the ability of a victim of poor health care to obtain fair compensation.

The net result is two-fold: first, medical cases are vigorously defended by health care providers, and by their insurance carriers, far more aggressively than other tort claims are defended. This means the probablility of resolving a malpractice case until the court house steps begin to loom is low; second, in those cases which do proceed to trial, a jury verdict is returned in a health care providers favor approximately 85% of the time, both in Washington and nationally. While some of this can be the result of inexperienced counsel or cases which perhaps should not have been brought in the first place, it is a fact which has only served to harden the resolve of insurance companies to defend and resist such claims, even when your own case may clearly have merit.

Finally, the costs associated with pursuing even the best of cases can be prohibitive for many lawyers, and certainly for most clients. A medical malpractice case, properly prepared, is based on the testimony of outside physicians retained as expert witnesses. Understandably, these physicians charge hourly fees which are at least proportional to the income they generate in private practice, most often amounting to $500 per hour or more, and in most cases, testimony from multiple specialists is needed. As a practical matter, it is not unusual for an attorneys office to incur costs of $100,000 or more by the time a case works its way through the civil justice system.

All of these circumstances require Stephen Haskell Law Offices to be extremely selective when accepting any case for representation. Time and again, we take all of the above into consideration, and if a matter is accepted, clients can be assured weve made the effort to fully acquaint ourselves with the technical aspects of your case, and are prepared to see the process through with you.

Now, if you are not feeling too discouraged after reviewing the above, read on for a practical overview of what may be involved in your case.

II. Legal Aspects of Medical Malpractice
A. Actions Against Health Care Providers
In Washington, all actions against health care providers are strictly governed by statute. Even the term health care provider is statutorily defined to include not only physicians and hospitals, but also dentists, therapists, nurses, chiropractors and a variety of other practitioners. All of these providers are subject to the same statutes, and the burden of proof an injured victim must demonstrate is virtually identical regardless of the type of health care involved.

B. Standard of Care
A critical piece of evidence required in any medical malpractice case must establish a health care providers action fell below the accepted standard of care, and this burden of proof can only be satisfied through testimony of an expert witness in the same or similar field which clearly establishes both a familiarity with such standard, and the experts clear opinion a defendants action fell below such standard. It is not enough that a client, a relative, an attorney, or even a treating doctor privately express such an opinion, unless and until they are willing to commit to this belief publicly and under oath. Without this required expert testimony, a clients case is subject to summary dismissal as a matter of law. In fact, its for this very reason that despite what one might hear about so-called junk lawsuits, a case without expert testimony is never destined to go far.

Until recently, Washington law imposed a Certificate of Merit when filing a medical malpractice suit, requiring the plaintiff submit an affidavit or declaration of a health care provider, certifying under oath a reasonable basis to believe the standard of care was violated in a given case. Recently, this Certificate of Merit has been invalidated on constitutional grounds, but as a practical matter this should make little difference -- it accomplishes nothing to commence a medical malpractice lawsuit unless and until the appropriate expert testimony establishing a standard of care violation has been secured.

What is the standard of care? It varies, depending on the circumstances of any given case. As a general definition, the term standard of care technically means what a reasonably prudent health care practitioner would do under the same or similar circumstances. Notably, standard of care does not mean that everything that could be done should have been done, every test ordered, etc.. In fact, the standard of care imposed is only a minimal standard. In that same regard, the law (and juries for that matter) affords a wide degree of latitude in this area. At trial, jurors are specifically instructed a physician is entitled to claim the defense of clinical judgment, and an error in judgment is not the same thing as malpractice, nor below the standard of care. This issue of so-called clinical judgment is often a last refuge for physicians and others seeking to justify their actions, and a potential trap for the inexperienced attorney.

C. Proximate Cause
Washington statute further provides not only a showing the defendant health care providers action fell below the standard of care, but also requires expert testimony establish that failure to follow the standard of care was a proximate cause of injury. This requirement is often the reason testimony from multiple specialists is needed at trial.

While the term proximate cause may sound like legalese, it is really nothing more than cause and effect, and a critical concept on which many malpractice cases surprisingly rise or fall, and another trap the inexperienced may overlook.

As a practical example, Stephen Haskell Law Offices frequently reviews cases involving the failure to diagnose cancer. Still, that failure must be a proximate cause of injury. The reality in these type of cases is that the physician has not inflicted cancer upon a patient, but instead may have delayed the discovery and diagnosis of the cancer, and therefore delayed treatment. Was this delay a proximate cause of injury, despite the fact the physicians failure to timely diagnose may have been below the standard of care? The answer depends on a variety of factors: what kind of cancer? How susceptible to treatment would this cancer have been at an earlier point in time? How long was the delay? did the cancer advance from something treatable to untreatable? Was the patients prognosis otherwise materially affected?

All of the above are critical questions to the outcome of a case based on the example of failure to diagnose cancer, but all too often this critical inquiry is overlooked, the focus improperly kept on the original failure to diagnose.

D. Informed Consent
Most people have heard the term informed consent and recognize it as a concept intertwined with medical malpractice cases. Yet the reality is informed consent issues rarely play a key role in the majority of medical negligence claims.

Washington statute establishes an independent basis for actions against health care providers can be based on failure to provide informed consent. Again, the law requires the standard of care relative to what must be disclosed be established through expert testimony addressing the standard for any routine disclosure, dependent upon the circumstance.

What exactly does the term informed consent mean? In summary, it defines what a health care provider must provide the patient as part of a standard disclosure any time a course of treatment is proposed, including an alternative of no treatment at all. This disclosure must include the material risks of any treatment (i.e. infection following surgery), but does not require disclosure of every conceivable complication if such a risk is not viewed as a material percentage. In Washington, case law has held that post-surgical risks as low as 2% should be disclosed. Additionally, informed consent requires a health care provider discuss viable alternatives to a proposed treatment, such as differing surgical approaches, pre-surgical therapy, and the alternative of no treatment at all.

Again, a practical example may be helpful. Stephen Haskell Law Offices frequently reviews obstetrical cases. In some cases, a patient may have undergone prior cesarean delivery for a variety of medical reasons, but now wishes to attempt a vaginal delivery with her current pregnancy. This alternative, known as VBAC (vaginal birth after cesarean) carries increased risks over and above a normal vaginal delivery, including an increased risk of uterine abruption, although the literature in this field is changing rapidly. This means the obstetrician must disclose these additional risks prior to attempting vaginal delivery, and in the event of unfortunate complications, the patient must establish had she been properly informed of this risk, she would have declined to attempt vaginal delivery and instead proceeded directly to cesarean section.

The above represents a legitimate claim based on informed consent. Many other cases are not so clear cut. Occasionally, a patient who experiences a post-operative complicaton asserts they would never have consented to the treatment had they known of a particular risk. Really? While this kind of response might sound smug, its exactly the question a jury would be asked to address. Hindsight plays no role in the verdict, and the fact is most patients are willing to accept a small degree of risk for medical intervention, and most of us are optimistic enough to hope we do not fall within a statistically small risk pool. It is for that reason, while the term informed consent is often invoked, it is rarely a viable theory on its own.

E. Statute of Limitations
The statute of limitations means the time frame within which a claim must be filed or otherwise be time-barred. In Washington, the general statute of limitations for tort claims is 3 years, and that is essentially the law governing malpractice claims, subject to numerous exceptions. In Idaho it is 2 years; in Montana 3 years, again with various exceptions.

Three years from what? In Washington it means 3 years from the date of the alleged wrongful act. Most of the time, that event is not too difficult to gauge, for instance when talking about a specific surgical procedure. Other times this triggering event is not so simple to identify, as when complications become evident well down the road. Practical examples of these latter kinds of cases involve failure to diagnose cancer, when the actual diagnosis occurs a significant time later; another example is birth-related injuries, when neurologic insult to a newborn is unknown or undetected until years later. In these latter situations, Washington has a so-called Discovery Rule, permitting claims to be asserted within one year after learning of the potential malpractice, with an outer limit of 8 years, referred to as a Statute of Repose.

Despite the so-called exception of the one-year discovery rule, the statute of limitations can be harsh, particularly when applied to the claim of a minor, the nature and extent of the injury unknown. Until a few years ago, Washington, like many states, permitted a claim by a minor to be tolled or held in abeyance until the minor became an adult. This meant a child with a potential case could reach age 18, becoming a legal adult, then have an additional 3 years in which to submit a claim, a critical consideration when talking about birth related injuries, such as subtle cerebral palsy. In response to a strong medical and insurance lobby, Washington has now amended this rule, imputing the notice of any parent to the potential claim of a minor. Effectively, this means most claims of minors are also governed by a 3-year statute of limitations and, at most, an 8-year statute of repose.

Working against these time-governed considerations is the reality no legitimate medical malpractice claim is subject to immediate legal assessment, without substantial medical input. Typically this process requires compiling medical records, usually from multiple sources. Ideally, it should include meeting with health care providers who are not the target of an actual claim, either as damage related witnesses or follow up treaters. It is not unusual to have this process take weeks or even months as medical records are gradually generated, appointments with other health care providers secured. What should a client do in the interim when a statute of limitation is looming? Aside from recommending early consultation with counsel, Washington statute provides a Demand for Mediation as a potential method of extending the statute for an additional one-year for clients and counsel to research a given case without the immediate necessity of filing a lawsuit. This option, however, comes with a disclaimer: the validity of the statute has never been tested in an appellate court and the demand for mediation must be submitted in good faith not merely as a way to buy more time.

III. WHAT TO EXPECT
As stated earlier in this article, medical malpractice claims are hotly contested, far more than other tort claims. A well-prepared case can take 2 3 years to reach the trial stage and likely cost tens of thousands of dollars.

Any potential client willing to embark on this process needs to clearly understand it is a team effort. Stephen Haskell Law Offices will work with you each step of the way, but our efforts can only be as good as the client. A medical malpractice case requires commitment, both emotionally and financially, and a persistent desire to see justice accomplished. And, while our office is prepared to advance the costs of this undertaking when appropriate, a quality client makes for a quality case -- there is no substitute.


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