When Medical Errors Cause Harm Gary Hazelton Hazelton Law Firm P.O. Box 1248 677 Anne St. Suite B Bemidji, Minnesota 56601
When Medical Error Causes Harm? A Guide to Medical Malpractice Claims in Minnesota by Gary M. Hazelton Hazelton Law Firm, PLLC 888-711-4529 1
The Scope of the Problem An article published in the Journal of the American Medical Association (JAMA), stated that over 225,000 people die each year because of medical errors. Nearly half are from emergency room errors. Medical negligence has become the third leading cause of death in the United States, behind only heart disease and cancer. A study by the Institute of Medicine of the National Academy of Sciences estimated that as many as 98,000 patients are killed each year in hospitals alone as a result of medical errors A Harvard study determined that 1% of a representative sample of patients treated in New York state hospitals in 1984 were injured, and one-quarter of those died, because of medical error. Extrapolated nationwide, that would be 234,000 injuries and 80,000 deaths in 1988 from negligence in American hospitals. Most of the errors involved physicians. There is no evidence that significant improvement has occurred since this study. Curbing medical errors has been a significant topic during the healthcare reform debate. The good news for Minnesotan s is that overall I truly believe we have excellent healthcare. Medical malpractice premiums consistently are either the lowest in the US or very close to the lowest. That is a reflection of the overall quality of our healthcare. What is the Law? The law is that, like other professionals, doctors and all healthcare providers are responsible for harm caused by their failure to use reasonable care. Reasonable care is defined as care that meets an accepted standard of care a doctor in a similar practice in a similar community would follow under similar circumstances. It might be easier to think in terms of the doctor running a medical stop sign. That is, just like when a motorist runs a stop sign and causes harm the motorist is responsible for the harm caused so is the doctor who runs a medical stop sign. The doctor, like the motorist, does not have to intend to cause harm. It is enough that the harm results from the lack of use of reasonable care even if unintentional. Doctors also have a duty to refer a patient to a specialist if the doctor discovers or reasonably should have discovered that the patient s condition is beyond his or her ability or skill to treat with a reasonably likelihood of success. How do I know if I have a Claim? This is the hard part! Why? Because unlike other situations where a person s negligence is easy to spot, such as when a motorist runs a red light, in most instances spotting when a medical mistake has been made is much more complicated. That is 2
because it often takes medical training to even know that a mistake has been committed. All medical procedures carry with them what is usually a fairly well known probability of success or failure. Your doctor should and most often will discuss those probabilities with your before any procedure. Nonetheless, people often equate a poor outcome from medical treatment with medical error. In fact it might or might not be. The doctor might have done everything superbly but the outcome was still poor. So, often to even determine if you have a claim it is necessary to have a qualified medical expert review the care and the outcome to determine if the poor outcome was simply a known risk associated with this kind of medical procedure or whether a mistake was in fact made. If I have a claim will a lawyer always take the claim? No. Why? Medical negligence claims are very expensive to bring because your lawyer will have to hire medical experts to review the case and give opinions about whether the standard of care was met. In addition, your lawyer will have to hire experts, medical and other types, to testify about extent of the harm caused and how that has and will affect your for the rest of your life. This is all very expensive. Medical malpractice claims are also defended very vigorously. You can rest assured that the defense will hire experts that will contradict the opinions of your experts. As such, it really is cost prohibitive to bring claims if the residual harm caused by the negligence is not significant. In my experience the malpractice claims where the medical error is more egregious and the resulting harm fairly great are the ones that medical negligence attorneys will accept and will have the greatest chance of settlement or success in the courtroom. If a lawyer agrees to take my claim what are the steps to bringing the claim? The first step is to amass your medical records and review them. Some lawyers have registered nurses on staff or refer the records to nurses with experience in malpractice to do a preliminary review. If further review is warranted the attorney will retain a qualified medical expert and pay to have the records formally reviewed. A charge of $1000 to $2000 for this review is common. If the medical expert is of the opinion that there has been malpractice the attorney will usually have the expert prepare a comprehensive report outlining the facts and the reasons he/she believes there has been malpractice. Your attorney will then get similar expert reports about the extent of your harm and how that harm will affect you in the future and the need for additional medical care to either correct the problem or ameliorate the affects as much as possible. For example, in a serious case where the 3
medical error has incapacitated the patient and there will be a need for ongoing care on a regular basis for the rest of the patient s life, what is known as a life care planner will be used to develop alternative care plans at various care levels and calculate the cost of such care. Sometimes an economist is also necessary to help project what the future cost of the care will be based on historical inflation in the medical care arena. Once all this information is amassed your attorney will prepare a settlement package and send it to the claims adjuster for the doctor s malpractice insurance company. If settlement attempts fail then starting a lawsuit is the next step. In Minnesota, unless the time limit on your claim is about to expire, you cannot start a medical malpractice claim unless your attorney signs an affidavit (a legal document signed under oath) verifying that the case has been reviewed by a qualified medical expert and that in that expert s opinion malpractice has occurred. A much more detailed affidavit signed by the medical experts who will testify in the case must then be produced within 180 days of the lawsuit being commenced. How long do I have to bring a claim? For medical negligence that occurs in the state you have four years from the date of the negligent act that caused harm within which to actually start a lawsuit or your claim will be forever barred. Important: This means from the date of the negligent act and not that date on which you discover the act was negligent! There are three critical things to be aware of here. First, many state residents, particularly in the northern and southern parts of the state, receive care in border towns of North Dakota, South Dakota and Wisconsin. If the negligent care occurs in those states the statute of limitations in the state where the negligence occurred will almost always apply and might be much shorter than Minnesota s statute. Secondly, in the event the medical negligence causes death the statute of limitations will be 3 years rather than 4 years. Minors do have an extended period but you should immediately consult a medical malpractice attorney in such situations. Finally, it takes much time to investigate a potential malpractice claim to determine if there is merit to the claim. If you wait until the statute of limitations is nearly expired to contact an attorney most attorneys will not get involved regardless of the merits of the case. They simply do not want to expose themselves to a malpractice claim for not being able to put the case together quickly enough to meet the statue of limitations. What if the medical mistake causes death? If you suspect that medical error has caused the death of a loved one and you might bring a claim, always, always, always request an autopsy and preferably by a medical examiner that is not connected with the involved medical facility. Without an autopsy 4
the precise cause of death might not be able to be determined and thereby proved. Without such proof your claim will have little chance of success. Gary M. Hazelton 5
ABOUT THE AUTHOR Gary M. Hazelton is the founder and owner of Hazelton Injury Attorneys, located in Bemidji, Minnesota. He has been practicing since 1985 and exclusively in the personal injury field since 1990. The mission of Hazelton Injury Attorneys is to be a resource where personal injury victims and their families can turn to educate themselves about their rights and about how to find the right lawyer without the pressure of having to first meet with a lawyer. Educational materials are available through the firm website at www.hazeltoninjuryattorneys.com or by calling toll free 1-888-711-4529 24/7. Both Gary and his associate Michael R. Hughes are graduates of the intense Gerry Spence s Trial Lawyer s College in Dubois, Wyoming, and commit to return yearly for additional training and practice. Gary is a Certified Civil Trial Specialist by the Minnesota State Bar Association and a four-time Minnesota SuperLawyer. It is the philosophy of the firm that every case must be fully developed from the beginning as if it will go to trial. The firm accepts a limited number of cases to ensure full development of each case and thereby an increased likelihood full compensation for the injured clients. Gary Hazelton Hazelton Law Firm P.O. Box 1248 677 Anne St., Suite B Bemidji, Minnesota 56601