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2 2 What Is Medical Malpractice? HOW TO USE THIS GUIDE If you read this guide, you will discover what you need to know about your legal issue, and learn about your options. Then you will be armed with information so you can make an informed, intelligent decision about what to do. What you should do now: Read this Free Legal Consumer Guide. You should be informed before you talk to an attorney. Call an attorney. At least get an initial consultation to discuss the unique facts of your situation. The best solutions come from applying the law to the facts of your case. No book can do that. Most attorneys offer a 1 hour consultation to discuss your case. You have many good choices in Southern Maryland. Of course, we hope you choose us! We want to be your family s attorney. Contact us today. Disclaimer: (1) Using this guide will not make you a lawyer, and is no substitute for hiring one. Do not represent yourself in any serious legal matter. (2) This guide gives general information and advice. Effective legal advice requires understanding the unique facts of your situation, and applying the law to those facts. (3) Using this guide does not create an attorney-client relationship with our firm. The only way to do that is by meeting with us. (4) The legal advice and information in this guide applies only to Maryland.
3 3 What Is Medical Malpractice? AUTHOR PAGE Tucker Clagett is a partner at Andrews, Bongar, Gormley & Clagett. He has been practicing law since 1994, and concentrates his practice in personal injury, workers compensation, and civil litigation. See his full bio on the web at /about -us/tucker-clagett Andrews, Bongar, Gormley & Clagett is one of the oldest and largest law firms in Southern Maryland serving clients for 50 years. We have more attorneys and a larger staff than other local law firms. That means we can help you and your family in a wider variety of legal matters. Each attorney concentrates in a few key areas so you get the expertise you need, and the personal service you want. Copyright 2013
4 4 What Is Medical Malpractice? TABLE OF CONTENTS Introduction 5 What is Medical Malpractice.. 8 Negligence & the Standard of Care. 9 Expert Witnesses. 11 Three Elements of a Medical Malpractice claim The Doctor was Negligent.. 13 Causation.. 13 Damages. 14 The Economics of Medical Malpractice 14 Statute of Limitations.. 16 The Process. 18 What You Should Do Now. 24 Local Resources 26 Copyright 2013
5 5 What Is Medical Malpractice? D id you know medical mistakes are a leading cause of death in the United States? According to a John Hopkins study in 2000, it was the third leading cause of death, right after heart disease and cancer. According to a Forbes article in 2013, over $3 billion was paid out in medical malpractice claims just the previous year. The Johns Hopkins study found that 225,000 Americans per year die as a result of their medical treatments: 12,000 deaths per year due to unnecessary surgery 7000 deaths per year due to medication errors in hospitals 20,000 deaths per year due to other errors in hospitals 80,000 deaths per year due to infections in hospitals 106,000 deaths per year due to negative effects of drugs There is no doubt that Medical malpractice in Maryland is a serious public health problem. However, it can be very difficult and complicated to figure out if you have been the victim of medical malpractice. Not every health problem or poor surgical result is the result of medical malpractice.
6 6 What Is Medical Malpractice? To find out more about whether you may have a medical malpractice case, read this guide. It will give you a good overview of the subject and provide some guidelines to consider. But the only way for you to know for sure is to consult an attorney. There is simply no way any written guide will be able to analyze the facts of your particular situation. All medical malpractice cases depend on the facts of your case your symptoms, your complaints, and your treatment. It is different in almost every case. Our consultations for medical malpractice cases are free. If you think you may have a medical malpractice case after reading this guide, call us to set up a consultation. Let us start out by saying we have many excellent doctors in Southern Maryland. They usually deliver the utmost in high quality care to our friends, family, and clients. But doctors are human too. They do make mistakes.
7 7 What Is Medical Malpractice? We do not believe a doctor should be treated differently than anyone else who makes a mistake. You must be held accountable for the results of that mistake. If you made an error driving your car, and caused an accident, you would be held accountable. You have insurance on your car to cover just those situations. It is no different for doctors and hospitals. They do make mistakes. Our legal system holds them accountable, and they have insurance to cover the costs. Often the doctor is not the cause of the medical malpractice at all. It can be the nurse in the hospital, or the anesthesiologist, or the pharmacy tech who gave you the wrong medication. Medical malpractice covers a lot of medical errors, and often your doctor had nothing to do with the problem you suffered. But the only way to know that is to ask an attorney and get the answer. All we promise clients in medical malpractice cases is an honest answer. We are selective. This is an area of law that can be very difficult to prove. But we do give honest answers to all who seek our services.
8 8 What Is Medical Malpractice? We also handle all medical malpractice cases on a contingency fee basis. That means we take a portion of the recovery for our fees if we decide to accept your case. You do not have to pay up front, and you owe no fees unless we recover something for you. WHAT IS MEDICAL MALPRACTICE? Medical malpractice is really just a claim of negligence. Lawyers make negligence cases all the time in car accidents, slip & fall cases, etc. Malpractice is a fancy word for negligence committed by a professional while rendering their services. So lawyers can commit legal malpractice, and doctors can commit medical malpractice. Because of the nature of what professionals do, they can do great good or cause great harm. A lawyer can really harm someone s life or finances if they mess up. An architect can cause millions of dollars in repairs if they mess up. A doctor is one of the few professions that can actually kill someone if they mess up. That is why all professionals receive advanced schooling, and why they have continuing education classes, and why they all carry insurance to cover their mistakes.
9 9 What Is Medical Malpractice? If you sue a health care provider, you will almost certainly be making a claim against his or her insurance company. Insurance companies don t make money by paying claims easily. They will fight you. If you wish to bring a medical malpractice claim, you better know up front it will definitely be a fight. It will not necessarily be the choice of your doctor or health care provider. It is the decision of the insurance company. One of the few things I can guarantee you in a medical malpractice case is a fight. NEGLIGENCE & THE STANDARD OF CARE Negligence means something special to lawyers. It means someone did something they should not have done, or failed to do something they should have done. It means they did not act like a reasonable person would act in the same situation. We call that violating the standard of care.
10 10 What Is Medical Malpractice? In a car accident case, violations of the standard of care are easy to prove. If you run a red light, or rear end someone because you followed too closely, or pulled in front of someone, you clearly violated the standard of care of normal drivers and you will be found to be negligent by a Judge or jury. In a medical malpractice case, proving negligence is much more difficult. The standard of care can be difficult to set. There are no set rules of the road. Because of what doctors do, it is much harder to pinpoint when a violation has occurred. We rely on a doctor to use his or her judgment in the middle of a procedure. You do not get to use your judgment to run a red light. But a doctor may get to use his or her judgment to do something they wouldn t teach in med school. However, they are not allowed to do something that violates the normal standard of care for similar doctors in a similar situation. That crosses the line into negligence.
11 11 What Is Medical Malpractice? Also, medical science changes all the time. The standard of care 50 years ago is going to be completely different than the standard of care now. And 50 years from now, we may look back and think some things we do today are crazy. So you cannot just create hard and fast medical rules today that people must follow in the future (like you can for drivers). EXPERT WITNESSES All of this means it is harder to prove malpractice. A Judge or jury can never figure it out on their own. We have to rely on expert witnesses. To prove malpractice, you must get an expert witness who will say that the health care provider in your case violated the accepted standard of care in the medical field. The only people who can say that are usually doctors themselves. So you have to get one doctor to testify against another doctor.
12 12 What Is Medical Malpractice? This is not easy. Doctors do not like doing that. So you have to (a) find someone who is willing to do so, and (b) go out of the local area to find a doctor who does not practice with the health care provider you are targeting. Finding a doctor willing to testify against another doctor is expensive. Expert witnesses charge for their time to review your medical records and your case. And they charge a lot. They are doctors, and their time is very valuable. That is one reason why you have to be seriously injured before you have a medical malpractice case that a lawyer will take on. (See more about that later.) This also means we can almost never tell a client with 100% certainty whether or not they have a case. We are not doctors. We may be better able than most people to see the issues at the heart of any malpractice case, but we cannot just pronounce malpractice on our own. We have seen cases we thought were slam dunks that the expert said were not malpractice, and we have seen cases we did not have much hope for that the expert said were great cases.
13 13 What Is Medical Malpractice? If you have a medical malpractice case, we will give you some guidelines and tell you what we think, but we will never really know for sure until the expert reports back to us. THREE ELEMENTS OF ANY MEDICAL MALPRACTICE CLAIM There are three things you have to prove in any medical malpractice case: (1) The doctor was negligent: As discussed above, you have to prove the doctor did something he or she should not have done, or did not do something he or she should have done. You must show the health care provider violated the accepted standard of care. (2) Causation: You must prove the negligence of the health care provider is what actually caused your injury. If you would have been harmed anyway, because of a disease or injury you already had, then the doctor s poor care may not be the cause of your injury. In Maryland, we must prove causation within a reasonable degree of medical probability. This is not as high as medical certainty, but it is a pretty high standard. It means you need an expert to say that in their expert and professional opinion,
14 14 What Is Medical Malpractice? there is a direct link between your injury and the actions (or inactions) of the health care provider. (3) Damages: You must prove you have sufficient damages from the negligence. If the health care provider makes a mistake, but it doesn t lead to any actual harm, then there is no malpractice claim. This happens more than you might think. People often come to us and say but I could have suffered an injury due to their mistake. We understand, and we are sympathetic, but to have a malpractice claim you must actually suffer an injury. THE ECONOMICS OF MEDICAL MALPRACTICE We hate to write this section. It sounds crass and uncaring. Most attorneys don t like talking about this particular issue. But it is a fact of medical malpractice law and we promise people honest answers. Your medical malpractice case will only be taken by a lawyer if you have enough damages to make it worthwhile. Uggh. We hate that statement! But it is true and here s why.
15 15 What Is Medical Malpractice? Because insurance companies will fight your case, and because of the need for expensive expert witnesses, a lawyer must pay, in advance, a lot of money in any medical malpractice case. We have to hire the expert to even review your records before we even decide to take your case. If we decide to file suit, we have to pay for the litigation costs too, which includes hours and hours of our expert witnesses time. All of this can easily cost ten thousand dollars or more. To get to trial, it is not unusual to have $20,000 to $50,000 invested into a case. If you invest $20,000 into a case, and a jury only gives you an award of $20,000, then you have done all of that work for nothing. The recovery on the case will go to cover your expert witness costs. That just doesn t make sense. Nobody is going to invest that amount of money and time into a case that will not result in any recovery for your attorneys fees, medical bills, and your pain and suffering.
16 16 What Is Medical Malpractice? None of this is meant to take away from the very real pain and suffering you may have gone through. But the economics of a medical malpractice case make this financial aspect a very real calculation that attorney s must do. We know what a jury will award in your case, and we must make that part of the decision process. It is not a part of the equation that we like, but it is an honest assessment you need to know about. And of course, you will never know what your case may be worth until you get a consultation with an attorney and have him or her review your records and perhaps hire an expert to do a report. That is a necessary step before you can even begin to consider this aspect of your case. But we want you to know about it up front. We do promise all clients an honest opinion of the reasonableness, and the value, of your case. STATUTE OF LIMITATIONS Maryland regulates the time limits for you to bring a medical malpractice case. This is called the statute of limitations. If you fail to file your case within the statute of limitations, you
17 17 What Is Medical Malpractice? lose your right to make your claim no matter how valid it is or how extensive your damages are. In Maryland, you must file any medical malpractice claim within 3 years of the date you knew, or should have known, that you had a possible claim. But no case can be filed more than 5 years after the negligent act or omission that resulted in the injury. This statute of limitations is a bit complex. The normal statute of limitations is 3 years. But in medical cases, it is possible to have a negligent act which causes an injury, but you do not discover it for a long time. The Maryland statute of limitations for medical malpractice cases gives you 2 additional years to have an undiscovered medical problem before the usual 3 years starts to run. But it also functions as a 5 year ceiling on claims of malpractice no matter when you discovered it. (Things are a little different for minor children ask an attorney.) When exactly it was that you knew or should have known a medical injury occurred can be a hotly debated topic. Was it when you got home from the hospital? Was it when you first
18 18 What Is Medical Malpractice? felt that pain? Was it when your first test results came back? Or was it when the final diagnosis was made and all the puzzle pieces fell together? This can be a fertile area for a defense attorney to explore in any case. This is why it is critically important to get to a lawyer sooner rather than later. We have to do a painstaking review of your records, and we have to get an expert to do the same thing. All of this takes time often months. If you wait to the last minute, we may not take your case just because the statute of limitations is too close. You will find most reputable attorneys will do the same thing. Don t get caught in this trick box. Call an attorney as soon as reasonable. THE PROCESS In Maryland, you cannot just hire an attorney and run off to the courthouse to file your case. Maryland makes you jump through some very specific hoops before you can bring a medical malpractice claim. This is another reason to see an attorney long before the statute of limitations even gets close.
19 19 What Is Medical Malpractice? Here is the process in a nutshell: (1) Get Your Records: We prefer that patients get their own records and bring them to us for review. If we send a letter requesting your records, the hospital or doctor s office will know immediately that somebody is investigating your case. It is very rare for a medical record to go missing or be altered, but why take the chance? Also, if word gets out an attorney is reviewing your case, the other doctors you treat with will likely be less expressive in their medical records as we would like. If you suffered an act of malpractice, you will likely get more medical treatment from other doctors after the incident occurs. We are always very interested in what those doctors say about what caused your condition. If they know we are going to read those reports, they will be more careful about what goes in them. This is not evil. It is just human nature. Doctors do not want to end up as witnesses against someone they know. They don t want to get involved in the legal aspect of your case.
20 20 What Is Medical Malpractice? You have an absolute legal right to get your own medical records in Maryland. If the doctor s office or hospital fights you on it, you should be suspicious. They do have the right to charge you for those records. That amount is set by state law. It involves a flat fee and a per page copying fee. It goes up every year, but if you are curious you can call us and ask. (2) The Attorney reviews your records: First, we review your records to screen out cases that just do not rise to the level of malpractice. Normally, your medical records will be quite voluminous. It may take a while to review these records. (3) Another expert reviews the records: We team up with some of the best medical malpractice attorneys and experts around to make sure you get high quality legal services. If we think you may have a case, we will tell you after the first review. Then we will send your records off to a
21 21 What Is Medical Malpractice? specialist attorney and/or medical expert to review and tell us if this is, in fact, a medical malpractice claim. This does not cost you any extra. We have arrangements with these attorneys where we agree to split the fee. It is still the same amount to you. This arrangement benefits you because we can send your case to the right attorney. The best attorney for your type of malpractice case may be local, or in Washington, or Baltimore, or elsewhere. We know who is who in the legal community. That means you do not have to shop around yourself. Believe me, you do not want to hire someone who does not specialize in medical malpractice. That is one area of law you do not dabble in. You either do it exclusively, or you team up with someone who does. We team up. Also, you get to deal primarily with a local law firm (us) during the pendency of your case. And you get a team of lawyers behind you. This arrangement has great benefits for our clients.
22 22 What Is Medical Malpractice? (4) Expert Review & Certification: As discussed above, your case must be reviewed by a medical expert familiar with the type of medicine involved in your case. They must be willing to certify, in writing, that your case is a valid medical malpractice case within a reasonable degree of medical probability. (5) File with the Maryland Health Claims Arbitration Office: Maryland has a special governmental office called the Health Claims Arbitration Office where your attorney must file a claim before filing suit at the Courthouse. This office was designed to cut down on filing suits. It is very debatable if it does that. In any event, it is a hoop that must be jumped through prior to filing a lawsuit at the Courthouse. Part of this filing includes the written expert certification mentioned above. This does keep frivolous medical malpractice cases out of the Maryland court system (which is a good thing!). Technically, there is a provision to go through arbitration, but it can be waived. Almost every attorney files a waiver of arbitration when they file a court case for medical malpractice, so this provision of law is almost useless.
23 23 What Is Medical Malpractice? (6) File Suit: If your case cannot be settled (and hardly any of these cases are settled without litigation) you must file suit and proceed like a normal court case. You will get a trial date, go through discovery, do depositions, etc. You can read more about that process in our Free Legal Consumer Guide about what happens during litigation. Don t fear litigation. It is par for the course in medical malpractice. For a variety of reasons, these cases do not settle without some litigation. Your attorney can explain why when you get your consultation.
24 24 What Is Medical Malpractice? WHAT YOU SHOULD DO NOW There are some very definite steps we advise all our clients to take if they think they have a medical malpractice claim. First and foremost think about your health first and your legal case second. If you have suffered an injury or illness that you think may be caused by medical malpractice, you need to get proper medical care to get well and recover as soon as possible. Do not hesitate to get a second opinion. We are blessed in the Baltimore-Washington region to have some of the best medical care on the entire planet within a one or two hours drive of us. You should take advantage of that. Be very happy you do not live in Middle of Nowhere Town, North Dakota. If you did, you may not have access to world class health care. Because of where you live you do.
25 25 What Is Medical Malpractice? You would be absolutely crazy not to find the best doctor you can and get a second or even third opinion. Find out your treatment options. You may find out that your condition is treatable. If so, do it. Your future health is priceless. Second, get your records. See what is in there. A lot of that medical stuff is gobbledygook. But a lot of it is plain English. You may learn a lot just leafing through your records. Third, get a free consultation with an attorney. Almost all attorneys who handle medical malpractice cases offer a free consultation, and will give you their opinion as to whether or not you have a claim after they review your records. Get some real answers on whether or not you have a medical malpractice claim. Better to know the answer now, than to wonder 5 years from now if there was anything in your case. By then, it will be too late, and the question will be academic. If you think you may have a medical malpractice claim, call us today and talk to an attorney as soon as possible.
26 26 What Is Medical Malpractice? LOCAL RESOURCES Southern Maryland has a lot of great non-profit organizations that can help you and your family if you are facing a need. These are a few we know, trust, and highly recommend. Legal Aid Bureau: legal services without cost United Way of Charles County: has the definitive list of local Human Services Agencies right on their website. Lifestyles of Maryland: They pretty much do it all, or can refer you to someone who can. Housing, food, medical, financial, employment, transportation, etc College of Southern Maryland: A lot more than classes! They provide fitness, and give health & wellness classes for all ages Greater Baden Medical Services: primary health care or Health Partners Free Clinic: primary health care services or
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