Anatomy of a Medical Malpractice Claim
Medical malpractice is a "fancy" term for negligence committed by a healthcare provider in the course of rendering care or treatment to an individual. The healthcare provider may be a doctor, nurse, hospital, physician's assistant or any one of many varied types of provider. A bad result, per se, is not malpractice. An error in judgment is not malpractice. A doctor or hospital is not required to provide the best possible service.
In order to meet the requirement of establishing a medical malpractice claim, it must first be proven by the party bringing the lawsuit that the healthcare provider departed from the standard of care required under the circumstances. That standard of care is ordinarily established by expert medical testimony.
The other essential element of a malpractice claim is that the departure from the accepted standard of care caused a substantial injury to the plaintiff. Both elements must be established -- the departure and the related injury. Establishing just one element without the other is not enough to make out a successful case. It is the patient's burden to establish the merits of the claim by a preponderance of the evidence.
It may not be known at first whether there is a serious injury even when the malpractice is quite clear. An example is where there is a negligent delay in diagnosing cancer but it has not yet been determined whether that delay was long enough to have had a significant adverse impact on the patient's future medical course or prognosis. In other instances the converse may occur -- the injury is clear but it is not known whether in fact malpractice was committed. Attorneys who specialize in handling medical malpractice claims ordinarily will know if the injury is severe enough to warrant prosecution or if the injury was a "risk of the procedure" or otherwise not actionable.
What Agencies Review Complaints Against Healthcare Providers?
In those instances where there is medical negligence yet there are no significant resulting injuries there is little incentive for a lawyer to prosecute such claims in the courts. However, there is recourse to agencies that oversee the conduct of doctors and hospitals. Two such agencies are The New York State Department of Health (www.health.ny.gov/health_care/consumer_information/complaint.htm)
and the Joint Commission on Accreditation of Healthcare Organizations (www.jointcommission.org). These bodies will investigate complaints from the general public relating to the conduct of doctors and hospitals and can impose sanctions, including license suspension and revocation in appropriate cases. If litigation is contemplated, it is important that any complaint to such an agency or to a hospital's administrator be withheld until the issue is discussed with an attorney who may recommend deferring such action.
How is a Medical Malpractice Claim Investigated?
Step 1 - Obtaining the Medical Records
Although the law allows lawyers to obtain the medical records of their clients, it is sometimes best for the patient themselves to try to secure a copy of their medical records from the treating physician if they are not uncomfortable in doing so.
One of the concerns of a plaintiff's lawyer is that the physician may suspect that if a lawyer is seeking the records the propriety of his treatment will likely be in issue. Consequently, the doctor may choose to add some self-serving entries to the medical records or even go so far as to rewrite them entirely. These events happen. It is less likely that they will occur when the patient seeks the records. And, if the records were obtained from the doctor's office staff by the patient and the doctor was unaware of it, a subsequently rewritten note is sometimes exposed when two different records ultimately surface. This is devastating to the credibility of the doctor.
If the patient is uncomfortable about getting the medical records or in those instances when the above considerations do not apply, the records can be obtained relatively easily by the lawyer. A request letter is sent to the doctor or hospital coupled with an authorization by the patient and an agreement to pay the copying charges. If the records are not forthcoming then court action is required to enforce this right. One way or another, the records will be obtained.
Step 2 - Evaluation
Most medical malpractice cases are determined by a professional review of the medical records. These reviews involve a thorough evaluation of every single relevant entry in the chart both by the lawyer and his staff as well as by retained medical experts. If there were flaws in the medical treatment, which may be subtle, a careful examination of the records will expose them.
Steven E. North, Esq.
Personal Injury Litigation
Medical Malpractice Law