Every bad outcome or injury does NOT a malpractice case make! Some practical advice.

This post was authored by Brian Nash and posted to The Eye Opener on December 5th, 2010.

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I recently came across a posting on the internet, which reminded me of a number of the type of calls we receive from people throughout the year. I thought it might be useful to share this post and some comments for you to consider about “whether you have a lawsuit” worth pursuing.

The post read:

I recently had to undergo epidural injections at a local pain management clinic. I was told the stats about the procedure and what signs to look for regarding problems. I had lower lumber injections, and the doctor that did the procedure told me that he punctured the spinal cord, thus releasing fluid. My problem was that I was sent home, to drive myself, and had made repeated calls to them regarding a monstrous headache that made even getting out of bed difficult. After almost 14 days, I finally called the local ER and was given totally different advice from the on-call doctor. I then finally recieved the blood patch….is there any liability here?

The balance of the post consisted of a lawyer responding to the question and some back and forth between the two, which ended – properly so – with the lawyer learning that the potential client had fully recovered, had gone through two weeks of hell and had incurred medical expenses for follow-up care to the tune of $3,750. The lawyer then told the person –

would that $3750 have to be spent regardless of the delayed treatment?

If so, you really don’t have a claim for much of anything. Even if it wouldn’t, to have a valid claim, you would also have to prove their actions were substandard in regards to the established standards of care. Generally, for little or no damages, you are not going to get an attorney to take on a case that will easily cost 10′s of thousands of dollars.

A Basic Problem – Pure Economics

Putting aside the issues of whether the original care giver violated a standard of reasonable care and whether that care caused injury, the pure economics of this situation does not justify the bringing of a medical malpractice case – “little or no damages…[for] a case that will easily cost 10′s of thousands of dollars.”

This type of injury, while clearly serious to the patient, luckily was not permanent in nature. Ask yourself, if you were on a jury hearing this case (assuming you found in favor of the patient-plaintiff by deciding that the doctor’s care was substandard and caused injury) - what amount would you award someone for two weeks of pain and suffering and no permanent injury?

Next, take your answer and do the following math:

  • The “10′s of thousands of dollars” the lawyer mentioned are real numbers that would be spent in a case like this. Expert witness fees (which can be enormous), deposition costs, costs to obtain the records, filing fees, etc. would easily be in excess of $50,000 by the time this case was concluded. Trust me – this is a conservative figure!
  • Legal fees – as many of you are aware, these cases are often taken on a contingency fee basis. The lawyer will charge a percentage (varying from as low as one-third to perhaps a high of forty percent).

Unfortunately, the economics of the case are a practical reality that must be and are addressed with these type of potential case inquiries. That doesn’t mean is easy to explain this to someone who is very upset (many times rightfully so) with the care they received or the attitude of the care giver.

The Client’s Perspective

Clearly no one wants to hear that the injury, inconvenience, medical expenses or pain they endured simply isn’t worth the lawyer taking. Some will read this and no doubt scream out – “You see, it is all about the money after all!” Well, I guess in a way it is – in part. Put yourself back in the shoes of the patient-caller. Let’s say their case is similar to the example (above) case: bills of $3,750, pain for two weeks, no permanency, no future care costs. Whatever number you came up with as our “juror in the box” for a verdict, now go ahead and subtract one-third to forty percent for the fee and – let’s say – $30,000 of costs. Why do I know that the resulting number is a negative one?

Hate to say it – but that’s the cold, hard reality of these situations. Imagine the lawyer trying to explain how the lawyer made some money but the client netted absolutely nothing! Not a place I’ve been or ever want to be.

So What Can This Person Do?

Well there are choices.

  • Try the old-fashioned method – try to work it out with the doctor or health care provider
  • If that doesn’t work, in most jurisdictions, you can always file a small claims action by yourself. The rules of evidence are relaxed in most jurisdictions and the judges tend to be quite liberal in their interpretation of the applicable laws – letting you have your day in court.
  • File a grievance with the local licensing board – they really do care and will take virtually all complaints seriously – at least that has been my experience in Maryland and the District of Columbia.

I strongly urge that you try option #1 – just see if you can sit down and discuss it with the doctor. If you are asked to sign some waiver form or agreement, before you sign it, see if you can have a lawyer take a look at what you’re signing first. You don’t want to waive any rights you might otherwise have. All that being said – try to work it out. It sure is a lot less stress and way less time-consuming. It also may go a long way in making the system work. Many doctors and health care providers are willing to at least listen. Watch your tone; don’t accuse them of being incompetent, uncaring or the like – just have a meaningful discussion and see if you can’t just work it out. If it doesn’t work, and you still believe you have been wronged, there are always options #2 and #3.

The “Suggestion Box”

I’m sure our readers would appreciate any useful suggestions by those who have found themselves in this situation. What approach(es) did YOU take? Did they work? I for one am always interested in hearing our reader’s suggestions – especially in for a topic like this. If they make sense, I assure you we’ll share them in a another post on a related topic. Take a moment and give us your thoughts.

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