Iowa Medical Malpractice Claims

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1 THE LAW GUIDE TO Iowa Medical Malpractice Claims 8 Things to Know if a Medical Error Causes Death or Serious Injury 4 Reasons Why Most Iowa Malpractice Victims Never Get Compensation 6 Smart Questions You Should Ask Before Hiring an Iowa Malpractice Attorney FAIRNESS ( )

2 WHAT OTHERS ARE SAYING ABOUT THE LAW GUIDE TO IOWA CAR ACCIDENT CLAIMS: The Guide helped me better understand what I should do to protect myself after my accident. Dan Hoyt, Dubuque, Iowa I recommend this Law Guide because it helped me to avoid mistakes with my car accident claim. Sherry Westendorf, Fredericksburg, Iowa The Law Guide helped me to better understand how to communicate with the insurance industry. Doug Yanecek, Cedar Rapids, Iowa The information in this Law Guide is truthful, helpful and meaningful in almost all car accident situations. Bethany Sarazin, Alburnett, Iowa The Law Guide is very user-friendly and answers common questions. Without it, I might have accepted a low offer from the insurance company. Pretty Patel, Des Moines, Iowa It was a benefit to casually read through your Guide to figure out if I even needed legal representation. Lori Pierce, Cedar Rapids, Iowa

3 The Guide was very well written. My brother, who is an attorney in Illinois, thought it was good too. Susan Jewell, Dubuque, Iowa Your Guide allowed me to realize what was expected of me after I was in a car accident. Amanda Casey, Stanwood, Iowa It contains excellent information for the lay person. It clearly answered my questions. Caroline Randall, Dubuque, Iowa The Law Guide you sent me helped me understand the process of personal injury lawsuits. Mike Resczenko, Oskaloosa, Iowa I liked reading your Law Guide before calling an attorney because it gave me a chance to see if I really had a case. Jenny Holmes, Cedar Rapids, Iowa If I hadn t read this Guide, I might have made a mistake about how much compensation we were entitled to. Joan Julseth-Lewis, Ankeny, Iowa

4 THE LAW GUIDE TO IOWA MEDICAL MALPRACTICE CLAIMS: RSH Legal

5 Contents Contents THE LAW GUIDE TO IOWA MEDICAL MALPRACTICE CLAIMS Author s Note...1 Introduction Should I Read This Guide?...2 Chapter One 8 Things to Know if Medical Malpractice Causes Death or Serious Injury...7 Chapter Two 4 Reasons Why Most Iowa Malpractice Victims Never Get Compensation...15 Chapter Three The Absolute Wrong Way to Pick an Iowa Medical Malpractice Attorney...19 Chapter Four The Step-by-Step Guide to Finding the Right Iowa Medical Malpractice Attorney For You...22 Chapter Five 6 Smart Questions You Should Ask Before Hiring an Iowa Medical Malpractice Attorney...24

6 Contents Chapter Six Our Credentials...28 Chapter Seven What Our Clients Say About RSH Legal...29 Chapter Eight Cases and Verdicts...32 Chapter Nine What RSH Legal Does For Clients...35 Chapter Ten What Cases Does RSH Legal Not Accept?...38 Chapter Eleven What Cases Does RSH Legal Accept?...40 Chapter Twelve What Does it Cost to Hire RSH Legal?...41 Chapter Thirteen What Can I Do Now?...42

7 Dear Reader: Medical professionals hold a position of power in our society. We trust them to care for us in our most vulnerable conditions and they are paid handsomely for fulfilling this responsibility. That is why it is so gut wrenching when we learn that a preventable medical error has occurred and an innocent patient is now dead or facing a lifetime of disability. The imbalance of power after an incident of medical malpractice is obvious. The victim s family is usually lost, dealing with unexpected death, disability or bills. The medical professional and his or her insurance corporation have the upper hand they know the rules and they have the money. They will often take advantage of this situation by convincing the innocent victim or family to do things that will cost them their rights. Whether it is using unnecessary delay tactics, making lowball settlement offers or refusing to accept full responsibility, the goal is the same paying as little compensation as possible for medical malpractice. We don t think that is right not morally, ethically or legally. We hope this Law Guide to Iowa Medical Malpractice Claims will help patients and their families learn their rights after a preventable medical error. Sincerely, John Riccolo Tim Semelroth Pressley Henningsen page 1 Emily Anderson Farl Greene

8 Introduction SHOULD I READ THIS Introduction GUIDE? Has your life been changed by a medical error? Did a family member die after a routine medical procedure? Did a doctor or nurse miss the warning signs leading up to a medical emergency? Are you or a loved one looking at a lifetime of medical bills and disability because of botched medical care? If the answer to any of those questions is yes, you have taken an important first step by reading this guide. The information we give you here will help. We personally guarantee it. If you read this entire guide and believe you did not learn something important about Iowa medical malpractice claims, send a letter to our office and we will make a $100 donation to the Iowa Foundation for Justice in your name. After a bad medical outcome, your mind is probably swirling with questions. This guide can answer questions like: How do I find out if I have a malpractice case? Who is responsible for what happened to me or my loved one? How long do I have to do something? Where can I go for honest answers? page 2

9 Introduction Who is behind this guide and why should I listen to them? Our names are John Riccolo, Tim Semelroth, Pressley Henningsen, Emily Anderson and Farl Greene. We are Iowa attorneys who represent people injured by preventable medical errors. If you want a divorce, need a will or have a traffic ticket, we are not the attorneys for you. We only handle cases involving serious injury or disability, and we only represent people not corporations. John Riccolo is listed in both The Best Lawyers in America and SuperLawyers.com. He has also served as president of the Iowa Academy of Trial Lawyers and the Iowa Trial Lawyers Association. For more, go to JohnRiccolo.com. Tim Semelroth is a board-certified trial attorney, is a past president of the Iowa Association for Justice and has taught as an adjunct professor at the University of Iowa College of Law, one of the top-ranked schools in the country. For more, go to TimSemelroth.com. Pressley Henningsen has served as president of the Iowa Association for Justice and has been interviewed on ABC, CBS, NBC and FOX as part of The Consumer s Advocate television show. For more, go to PressleyHenningsen.com. page 3

10 Introduction Emily Anderson has served in the Young Lawyers Division of the Iowa State Bar Association as co-chair of both the Professional Development Committee and the Mock Trial Committee. For more, go to EmilyAndersonLaw.com. Farl Greene has a degree as a doctor of chiropractic medicine as well as a law degree. Farl serves on the Continuing Legal Education Committee of the Iowa Association for Justice. For more, to go: FarlGreene.com. The Million Dollar Advocates Forum is a national organization of attorneys who have had verdicts or settlements of a million dollars or more. At the time of this guide s publication, only thirty-five Iowa attorneys have been inducted into this Forum. All five attorneys at RSH Legal are qualified members of the Million Dollar Advocates Forum. Why did they write this guide? First, it is disheartening to get phone calls from seriously injured people who have been exploited because they did not know their rights as medical malpractice victims in Iowa. We are sick of having to tell people that they made early mistakes that cannot be fixed. We believe the solution is providing helpful information to injured Iowans and their families before they: page 4

11 Introduction Talk to an insurance representative before they are educated about their rights Make costly errors like giving recorded statements without an attorney present Miss an important legal deadline that will eliminate an opportunity to get fair compensation Second, we wrote this guide because we believe you deserve to learn about Iowa s medical malpractice laws in the comfort and privacy of your own home. This guide will allow you to take your time and review information at your own pace. You can read this guide without insurance corporations pressuring you to settle your claim or lawyers pushing you to file a lawsuit. This guide contains helpful information you can use to make your own decisions. It is also a valuable resource you can save for family or friends should they ever face questions about medical malpractice. Third, this guide saves us time as well. We get phone calls every day from people who want us to represent them in their medical malpractice claims. This guide contains the same general information that we would give you if you called and spoke to one of the attorneys in our office. Writing this guide gives us the chance to explain need-to-know information regarding medical malpractice claims in Iowa. It can assist you in making informed decisions about steps to take in your situation. We cannot accept every case. In fact there are many cases we are not able to accept. Even if we are unable to take your case, we believe you still deserve access to this essential information. page 5

12 Introduction THIS GUIDE IS NOT LEGAL ADVICE This guide, which is based upon Iowa law, is designed to inform. It should not be regarded as legal advice. We are offering strategies and identifying traps, but please do not consider anything in this guide to be counsel for your individual case. No person should ever apply or interpret any law without the aid of an experienced attorney who knows the facts, because the facts may change the application of the law. Reading this guide does not make you a client of our law firm or its attorneys. We can only represent you after you have signed a written contract with RSH Legal. If you have any questions about your legal rights after reading this guide, you can contact us at FAIRNESS ( ). page 6

13 8 Things to Know About Medical Malpractice 8 THINGS TO KNOW Chapter IF MEDICAL One MALPRACTICE CAUSES DEATH OR SERIOUS INJURY Fact 1: Iowa law makes patients or their families responsible for investigating bad medical results If you suspect that a loved one was injured or killed by a medical error, you cannot sit back and wait for a doctor or a hospital to come forward and do the right thing. No one else is going to do it for you. What you need to do is take action right away, because what you do after a medical error will later become evidence in your case. Iowa law says that the time for taking action begins as soon as you are aware of an injury or death occurring after medical treatment even if you are not sure that a medical error occurred. How does an ordinary person investigate a bad medical result? If a death has occurred, the first step is deciding whether to request an autopsy. If medical treatment results in serious injury, the first step is often seeking further treatment and/or second opinions from health care providers who are not connected with the medical professional who may have committed the error. In the book, How to Survive Your Hospital Stay, Gail Van Kanegan and Michael Boyette suggest that during your investigation, you should attempt to get the doctor or hospital to acknowledge that the error occurred. If they admit that a page 7

14 8 Things to Know About Medical Malpractice mistake occurred, then they can take steps to fix it. This also makes sure that the mistake is documented on the patient s record and creates a paper trail. You can also request that the medical bill be changed. Investigating after a serious injury or death can be overwhelming you may not be in a position to do an investigation on your own. If you are overwhelmed, or are not satisfied with the answers you receive, an experienced Iowa malpractice attorney can investigate for you. In any event, it is your responsibility to seek out the help that you need to investigate a bad medical result. Fact 2: Iowa law places strict time limits on victims of medical error In Iowa, injured patients or their families only have a limited amount of time to investigate a bad medical result and take appropriate action. Waiting too long will result in the loss of your legal right to be compensated for harms and losses caused by medical error. In general, Iowa law says that an injured patient has two years to file a lawsuit after a medical error causes injury or death. There are some limited exceptions to this 2-year time limit particularly if the injured patient was a child. Whether an exception to the 2-year time limit applies in your case or whether a particular situation requires additional procedural steps before a lawsuit can be filed are questions that can only be answered by an attorney who knows the facts of your case. Fact 3: What qualifies as medical malpractice in Iowa Medical malpractice is a term used to describe a situation where a health care provider like a doctor or a nurse - makes a page 8

15 8 Things to Know About Medical Malpractice medical error that results in serious harm to a patient. Medical malpractice can come in many shapes and sizes - a missed diagnosis, a delay in treatment, or an improper technique. Malpractice can happen at any stage of medical treatment and is not limited to just hospital care. Doctors offices, dentists chairs and chiropractors tables are all places where medical malpractice can occur. The most common cause of medical malpractice is an error in diagnosis. According to a 2013 article in the New York Times, researchers have found that 28.6% of malpractice payments are for diagnostic mistakes, while errors during treatment or surgery were the second and third most common causes of medical malpractice. Medical malpractice is surprisingly common. According to the National Academies of Science, as many as 98,000 Americans die from medical errors each year, and studies have shown that one in three Americans say that they or a family member have been a victim of an error during medical treatment. While medical malpractice is common, medical malpractice lawsuits are not common in Iowa. Despite what you have no doubt heard, medical malpractice lawsuits are not clogging up Iowa s courts and medical malpractice verdicts in Iowa are not growing out of control. Here are the facts: Between 2002 and 2012, the number of medical malpractice lawsuits in Iowa fell by 52%. Between 1992 and 2010, the number of jury trials in Iowa fell by 57%. page 9

16 8 Things to Know About Medical Malpractice Why do so many people have mistaken beliefs about the medical malpractice system? Turn to page 16 to find out. Fact 4: Under Iowa law, usually only a doctor is qualified to say that another doctor committed malpractice In order to prove that a doctor committed malpractice in Iowa, an injured patient must show that what the doctor did was different than what the average doctor with the same experience and training would have done. This is called practicing below the standard of care. Only another doctor who works in the same area of medicine can say if an error was malpractice. For example, if an emergency room doctor made a serious error during your treatment, you will usually need another emergency room doctor to testify that the care you received was malpractice. In order to find out whether medical treatment qualifies as malpractice, an attorney has to gather all of the important medical records for an injured patient and then have those records evaluated by a doctor who will decide if the treatment that hurt you or your loved one was below the standard of care. Usually, Iowa doctors will not publicly criticize the care provided by other Iowa doctors. That means that Iowa malpractice victims often need to have their cases evaluated by out-of-state doctors. A review by an out-of-state doctor is usually the only way an injured patient can be assured of getting an unbiased assessment of questionable medical care. page 10

17 8 Things to Know About Medical Malpractice For that reason, a medical malpractice attorney must have contacts with medical experts around the country and enough expertise to gather the right records and ask the right questions. As you can probably imagine, contacts in the national medical community and medical-legal expertise can require years to develop. That is why it can be important to put your trust and your case in the hands of an attorney who has significant experience handling medical malpractice cases. Fact 5: Only medical errors that cause permanent injury or death justify filing a malpractice case Most medical malpractice cases are very expensive to pursue. Gathering large amounts of medical records, doing the necessary medical research and hiring expert doctors from around the country all cost money. It can easily cost $50,000 to $100,000 to investigate a medical malpractice case and prepare it for trial. It is important to understand that these costs do not include attorney fees. Therefore, a successful medical malpractice case has to have a likely economic value large enough to pay all of the costs described above, all of the attorney fees and still have a significant amount of money left over for the injured patient. The economic value of a case is determined by how much money the injured patient is likely to receive either in settlement or from a jury verdict. The value of settlements and verdicts is largely dictated by the degree of harm suffered by the injured patient. High medical bills, significant lost earnings and permanent disability or death are all harms that can increase the economic value of a case. Without those types of harm, by the time a malpractice case is done, there would likely be little page 11

18 8 Things to Know About Medical Malpractice money left for the injured patient. For that reason, experienced malpractice attorneys will often refuse to take a malpractice case that does not involve death or permanent injury to the patient. As you can probably imagine, there are many medical errors that do not cause permanent injury or death. Medical errors that lead to temporary injuries or no injury at all are not usually a worthwhile subject for a medical malpractice lawsuit. The malpractice system is too expensive for people who have not been seriously and permanently harmed. It is not fair that a doctor can get away with shoddy medical care, but the reality is that the cost of pursuing a malpractice case without permanent harm is usually just too high for both the injured patient and the attorney. Fact 6: It is your responsibility to pay your medical bills after an incident of malpractice. You are ultimately responsible for paying your medical bills. However, through a medical malpractice lawsuit it is possible to be reimbursed for medical bills paid by health insurance and any medical bills that you had to pay out of your own pocket. Most insurance corporations will only issue one settlement check for an injury claim. That one settlement check will have to cover all of your harms and losses, including such things as past and future medical bills, past lost wages, future loss of earning capacity, past pain and suffering, future pain and suffering and past and future permanent impairment. In order to get that one settlement check, the medical professional s insurance corporation will require you to sign settlement paperwork stating that it has no responsibility to pay anything more in the future for that particular medical malpractice claim. page 12

19 8 Things to Know About Medical Malpractice That means the medical provider s insurance company will not usually start paying your medical bills until you are willing to settle your entire claim with them once and for all. One of the most common mistakes that medical malpractice victims make is allowing medical bills to go unpaid when their own health insurance would cover those bills. You can always reimburse your insurance company after you obtain compensation from a medical malpractice case. However, it is difficult to rebuild a credit rating after it has been ruined by medical bill creditors. Fact 7: A malpractice case will not financially ruin a doctor or cause a loss of a medical license People often come to our office concerned about how a lawsuit will affect the medical professional who injured them. We want to take this opportunity to clear up a couple of misconceptions about how medical malpractice cases work: Your doctor will not go bankrupt. The vast majority of medical professionals carry malpractice insurance. This insurance protects them if they make an error that injures or kills a patient. Because of malpractice insurance, any money that you get through a verdict or settlement usually comes from an insurance company - not from a doctor s pocket. The only times this is not true are when a doctor irresponsibly chooses not to carry malpractice insurance or chooses to carry too little insurance. Your doctor will not lose his or her medical license. Only the Iowa Board of Medicine can suspend or revoke a doctor s license and they can only do this after a separate investigation page 13

20 8 Things to Know About Medical Malpractice of the doctor by the Board itself. This process is entirely separate from the medical malpractice system. A medical malpractice case alone will not cause a doctor to lose his or her license. Fact 8: Filing a lawsuit does not mean you have to go to trial. Thanks to Hollywood, the courtroom seems like a very intimidating place to the public. Medical malpractice victims are often concerned that, if they hire an attorney, they will end up on trial being mercilessly grilled by a tricky lawyer. Like many things in life - when it comes to our legal system people shouldn t believe everything they see on television. In Iowa, most claims are settled out of court even if an attorney is involved some studies say as many as 90% of claims settle before trial. Insurance corporations will often settle cases for a fair amount because an attorney is involved. They know that a good medical malpractice attorney presenting a legitimate case at trial poses a risk of a big payout for them. Insurance corporations will often want to avoid that risk by offering a fair settlement before trial. It is also important to know that the choice to go to court always rests with the client. The client decides whether to take a case to trial not the attorney. Good attorneys will offer their opinions about whether going to trial is in the client s best interest but, ultimately, it is the client s decision. page 14

21 4 Reasons Victims Never Get Compensated 4 REASONS WHY Chapter MOST IOWA Two MALPRACTICE VICTIMS NEVER GET COMPENSATION In a nationwide survey of medical malpractice cases, researchers found that only 36% of patients went to trial and won a verdict in their favor. Another survey found that only one in eight patients who suffered an injury from medical error ever even filed a claim. Why? Here are some of the major reasons that stop malpractice victims from receiving compensation for their injuries: Reason 1: The injury or death was likely to happen anyway There are times when an obvious error occurs during medical treatment and the patient s condition worsens after that error but there is no cause and effect relationship between the error and the worsening condition. A prime example of this situation can occur in cancer diagnosis cases. A doctor may fail to make a timely diagnosis of cancer and the cancer may progress before it is ultimately diagnosed, but if this type of cancer was untreatable anyway, it is impossible to prove that the doctor s error caused the patient s cancer-related death. If an injured patient cannot show that appropriate medical care would have put them in a better position than he or she is now, that patient s medical malpractice case will not likely result in fair compensation. page 15

22 4 Reasons Victims Never Get Compensated Reason 2: Many jurors are biased Over the last three decades, the insurance industry has been mounting an aggressive public relations campaign to try to convince Americans that medical malpractice litigation is out of control. Their goal is to convince the public that lawsuits are causing malpractice insurance rates to go up, driving doctors out of practice and making medical care more expensive. Unfortunately, many jurors believe this and they come into the courtroom distrusting people who bring medical malpractice lawsuits. Lawyers are often vilified and made to seem like bad guys in movies and on television. As you can probably imagine, it can be very difficult to win cases in this type of environment and, every year, deserving people with legitimate medical malpractice cases lose them in court. What makes this so sad is that the insurance industry s claims are just plain wrong - especially here in Iowa. We do not have a problem with out-of-control lawsuits. A study conducted by the U.S. Chamber of Commerce ranked Iowa as one of the top five states for overall legal fairness. Medical malpractice claims are not driving doctors out of Iowa. According to the Iowa Board of Medicine, between 2000 and 2012, the total number of physicians residing in Iowa with an active medical license has increased by 9% and the number of new medical licenses issued in Iowa has increased by 15% over the last two years. Most importantly, medical malpractice claims are not responsible for the increasing cost of health care. According to a July 11, 2006 article in Slate Magazine, including legal fees, insurance costs, and payouts, the cost of [medical malpractice] suits comes to less than one-half of 1 percent of health care page 16

23 4 Reasons Victims Never Get Compensated spending. The Wall Street Journal found that doctors could save more on malpractice insurance by improving patient safety than pushing for laws to protect them from lawsuits from patients. Finally, medical malpractice cases are often unsuccessful because people generally think highly of their doctors and do not want to believe that the doctor has committed malpractice. We all end up in the healthcare system, and as a result, people want to think that doctors are not capable of making careless, irresponsible mistakes. In reality, the only true problem with medical malpractice is the malpractice itself. Health care workers make preventable mistakes that kill more people in the United States every year than workplace injuries and auto accidents combined. Medical malpractice lawsuits actually improve patient safety by making medical mistakes more visible and by making patient safety a higher priority than it would otherwise be. Reason 3: Not requesting autopsies In a medical malpractice case, the person bringing the lawsuit has the burden of proving that a medical professional s error was a direct cause of the patient s injury or death. In cases where the patient dies, cause of death is often best proved by an autopsy. Often the last thing on your mind after a bad medical result is bringing a malpractice claim later, but whether you have an autopsy done or not can affect that claim. An autopsy can help clarify what caused the patient to die and that may help your case. The reason an autopsy may not be helpful, however, is that sometimes autopsies find numerous underlying conditions that a defense attorney can use to distract the jury away from page 17

24 4 Reasons Victims Never Get Compensated the role of the medical error in the death. While an autopsy is usually helpful, the safest choice is to consult with a malpractice attorney before asking for one after a bad medical outcome. Reason 4: Not hiring an experienced medical malpractice attorney Medical malpractice is a complex field of the law and just because a lawyer is good at handling a divorce or settling a car accident case does not mean he or she has the skills to handle a medical malpractice case. Medical malpractice law has its own set of rules and procedures that many Iowa attorneys are not familiar with. There are relatively few attorneys around the country, and even less in Iowa, who specialize in medical malpractice and who have experience arguing medical malpractice cases in front of juries. Iowa attorneys who specialize in medical malpractice cases dedicate a significant portion of their careers to representing injured patients. They take classes each year to keep informed of the latest medical and legal trends. They know how a jury will likely value your case and they have the skills to fight to get you what you deserve. Because relatively few Iowa attorneys specialize in medical malpractice cases, they tend to be well-known to hospitals and insurance companies. An attorney s record of verdicts and settlements is often tracked by medical malpractice insurance companies and their lawyers. Do not hesitate to ask about an attorney s experience with medical malpractice cases. For specific things to look for in an Iowa medical malpractice attorney, be sure to read the chapter A Step-By-Step System For Finding The Right Attorney For You, later in this guide. page 18

25 The Wrong Way to Pick an Attorney Chapter Three THE ABSOLUTE WRONG WAY TO PICK AN IOWA MALPRACTICE ATTORNEY Make no mistake - hiring your medical malpractice attorney is an important decision with real consequences. Your choice of an attorney can mean the difference between receiving fair compensation and being stuck with a lifetime of unpaid medical bills and uncompensated suffering. Most attorneys in Iowa do not have the training or experience to handle a medical malpractice case. In order to be successful in a malpractice case, an attorney has to have experience and training both in medicine and in law. A responsible medical malpractice attorney is going to be taking classes to constantly refresh their knowledge and make sure that they re on the cutting edge of both medical and legal issues. The absolute wrong way to pick an Iowa malpractice attorney is to make a hasty decision based on convenience or guesswork. Here are a few examples of the misguided ideas that lead people to choosing the wrong attorney for their case: page 19

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