The Crisis of Medical Malpractice.
According to the Institute of Medicine 98,000 patients die every year as a result of preventable medical errors in America. This number does not include the many thousands who are seriously injured. Preventable medical errors are the sixth leading cause of death in the United States.
In 2006, researchers at Harvard University announced the results of a study showing that most medical negligence claims involve real medical errors with serious injuries, and concluded “portraits of a malpractice system that is stricken with frivolous litigation are overblown.” The researchers found that few medical malpractice lawsuits were without merit, and that those who filed cases without valid claims generally did not receive any compensation. Their research showed that most medical negligence claims were meritorious, with 97 percent of claims involving actual medical injury and 80 percent involving physical injuries resulting in major disability or death. Few claims where there was not real error were ever paid. In fact, researchers found the reverse‑‑non‑payment of claims where error was involved—was a bigger problem. The true fact of the matter is that most people who have been injured as a result of medical negligence will go uncompensated for their losses. That most errors go uncompensated is the real crisis–as the cost of providing care to those individuals is ultimately shifted to the innocent victim-or to the taxpayers through payments made by Medicare or Medicaid.
Every day we receive calls from people who have been injured themselves or whose loved ones have been injured or even died while receiving medical treatment. Many times the doctors and nurses who were providing care are unwilling to answer questions about what happened and why. When these patients or their family members become sufficiently frustrated, they call a attorney. Usually they do so, not because they are anxious to sue their health care providers, but because they are looking for answers they have been unable to get on their own. Sadly, when they do contact an attorney, they often learn that they are unable to find an attorney to accept their case. This paper is intended to provide important information about why you may have a difficult time finding an attorney to handle your medical malpractice claim. There are several criteria a potential claim must meet before we are willing to accept any medical negligence case. Those criteria include, but are not limited to: the timeliness of the claim, strength of the evidence as to any violations of the standard of care, causation and economics.
What Is Medical Malpractice?
Medical malpractice simply refers to negligence by a health care provider in treating a patient. Negligence is the failure of the medical care provider to follow the appropriate standard of care in the medical community in which he or she practices. This simply means did the healthcare provider comply with the minimum standards required of his or her specialty in the area in which they practice. Sometimes severe and even fatal complications develop during medical treatment which are not the result of negligence. The law does not permit a patient to recover damages for a complication or bad outcome unless it is the result of negligence. Unfortunately, there are times when negligence occurs but we are simply unable to prove it because the medical records do not reflect what actually occurred during surgery or other treatment. In North Carolina, proof of an injury or bad result alone is not enough to prove that the health care provider was negligent. The patient has the burden of proving the healthcare provider's negligence.
When that negligence results in injury or death, the patient or the patient's family has a right to recover damages for the losses and harm suffered ‑at least theoretically. You have probably heard it referred to as "tort" law. The purpose of tort law is two‑fold: to compensate someone who has been injured because of the carelessness or negligence of another and to deter people and corporations from behaving carelessly by holding them responsible for the injuries they cause. Tort law serves to supplement government regulation to ensure that there is an economic deterrent to people and corporations acting irresponsibly. When we hold individuals and corporations legally liable when they behave in an unsafe way toward others, we encourage them to be more responsible citizens ‑something that is in the best interest of all of us.
What Are the Factors That Go Into Evaluating a Medical Malpractice Case?
There are several criteria a potential claim must meet before we are willing to accept any medical negligence case. Those criteria include, but are not limited to: the timeliness of the claim, strength of the evidence as to any violations of the standard of care, causation and economics.
With respect to timeliness, in North Carolina any case involving medical negligence must be initiated within a certain period of time after the last act of the medical care provider giving rise to the cause of action. Generally, an action for professional negligence which results in an injury must be brought within three years from the date the injury occurs. There are exceptions to this rule. Once the Statute of Limitations has expired, the claim is forever barred.
The second factor concerns whether the medical care provider failed to follow the appropriate standard of care in the medical community in which he or she practices. This simply means did the healthcare provider comply with the minimum standards required of his or her specialty in the area in which they practice. Sometimes severe and even fatal complications develop during medical treatment which are not the result of negligence. The law does not permit a patient to recover damages for a complication or bad outcome unless it is the result of negligence. Unfortunately, there are times when negligence occurs but we are simply unable to prove it because the medical records do not reflect what actually occurred during surgery or other treatment. In North Carolina, proof of an injury or bad result alone is not enough to prove that the health care provider was negligent. The patient has the burden of proving the healthcare provider's negligence.
The third factor concerns causation, that is, whether the act of the medical care provider actually caused injury or harm to the patient. In North Carolina a patient must prove not only that the healthcare provider was negligent but that their negligence was the cause of the injury or bad outcome.
To prove negligence and causation requires medical testimony from an expert. Generally, expert testimony requires the testimony of physicians from out of the area where the negligence occurred as it is often difficult, if not impossible, to find local physicians willing to testify against other local medical care providers. We have found it nearly impossible to find North Carolina doctors willing to even review the medical records of patients who believe they have been injured by other North Carolina health care providers. Finding one who will actually testify against another North Carolina health care provider is even more challenging.
The fourth factor we consider before accepting a case concerns the economics of the case. As mentioned above, to be successful in any medical negligence claim expert testimony must be presented. That means that medical doctors must be hired to review medical records and other medical information and advise us whether or not they think the treating health care provider failed to comply with the applicable medical standards. Medical doctors charge for these services; indeed, all of them charge hundreds of dollars per hour for this work and some of them charge well over $1000 per hour. The cost of obtaining medical records can amount to hundreds of dollars. Finally, gathering and organizing these records, finding doctors to review them, and doing our own research takes considerable time and effort. Obtaining this testimony requires not only payment to the expert to obtain the initial opinion but also expenses necessary to provide testimony from the expert prior to and during trial along with any associated expenses. In addition to the costs of obtaining the Plaintiff's (the person bringing the lawsuit) expert testimony, it is also necessary to take the depositions of experts hired by the Defendants. Our experience has shown that the out‑of‑pocket expense of pursing even the simplest cases exceeds $25,000 and complicated cases with multiple health care providers as defendants will require the expenditure of well over $100,000. In addition, hundreds, if not thousands, of attorney and paralegal hours are required to adequately prepare a medical malpractice case for trial. While we hate to admit it, the fact of the matter is that the economics of this very challenging type of litigation means that sometimes we are unable to accept representation in meritorious cases because the damages that we might be able to recover are simply insufficient to justify the substantial investment of time and money by our firm.
Medical negligence cases are exceedingly difficult to win for a number of reasons. First, juries in North Carolina are very conservative and tend to give the benefit of the doubt to the healthcare providers when there is any uncertainty as to whether they were negligent. Second, the laws of North Carolina concerning medical malpractice lawsuits tend to favor doctors, hospitals and other healthcare providers. Third, health care providers have a much easier time obtaining highly qualified experts to testify on their behalf. According to statistics maintained by the North Carolina Administrative Office of the Courts, there were only 3 verdicts in favor of patients in all of North Carolina in 2009.
Because of all of these factors we must be very careful about which cases we accept. We have 2 full time nurses on staff to review new client inquiries, do the necessary medical research and locate potential expert witnesses. If you or someone you know has been injured during medical treatment we would welcome the opportunity to review your situation.
