Recently, a CNN article titled â€śHarmed in the Hospital? Should You Sue?â€ť described the story of a two-year-old baby with a septic infection who waited about five hours in the emergency department before being seen by a physician. The child ultimately needed several amputations as a result of the delay in medical treatment.
Using this tragic story as a point of reference, the article suggests a number of criteria to help patients decide when to sue and when not to sue a health care provider. For example, the article correctly suggests that a patient who has not sustained injury should not sue a health care provider even if the health care providerâ€™s conduct might have been negligent. In medical malpractice cases, a plaintiff seeks monetary compensation for injuries. If there are no identifiable injuries, there simply isn’t a case for medical malpractice.
However, most of the remaining recommendations in the article seem to suggest that a patient can make an educated determination about pursing a medical malpractice case without the advice and counsel of a skilled medical malpractice attorney. While this may possible in some cases, a well-considered determination about the merits of a medical malpractice case is difficult, if not impossible, to make without the guidance of a skilled attorney.
The decision to sue is never an easy one. Engaging in litigation is costly, time-consuming, stressful, and emotionally draining. This is particularly true in medical malpractice cases where a plaintiffâ€™s own physical injuries or the death of a loved one is the subject of litigation. As a consequence, the decision to sue a health care provider must always be well-considered because of the impact the lawsuit might have on the patient, the patient’s family and the defendant health care provider.
Is deciding if you really have a case a “do it yourself” project?
In this vein, the article suggests that a patient should always consider whether her injuries are the result of the alleged negligence or some other unrelated factors. This consideration is particularly important when the patientâ€™s pre-existing medical conditions cause or contribute to the alleged injury. In such instances, however, unless the patient has sufficient medical knowledge and, perhaps some legal knowledge, it may be difficult, if not impossible, to determine the actual cause of the injury.Â In most instances, these determinations should be made by a skilled health care provider in the relevant medical specialty in consultation with a skilled medical malpractice attorney. By extension, to suggest that a patient should be able to make this determination on her own is frankly impracticable in most instances.
What’s the process for determining if you have a real case
Therefore, whether or not a patient ultimately decides to pursue a lawsuit, it is prudent to seek counsel from a skilled medical malpractice attorney. Many attorneys offer free initial consultations. More importantly, most attorneys will Â (or should) undertake Â a thorough investigation of a potential medical malpractice case before a decision to file suit is made. This process involves an internal review of the medical records. Often times, this is done with the assistance of an in-house medical expert. If Â an investigation passes the threshold in-house review, the records are then reviewed by outside experts whose sole purpose is to determine the quality of care rendered and whether any of the alleged injuries are related to the care that is being criticized.
This multi-layered review can amass a tremendous amount of information, which in turn can help a patient decide if it is worth pursuing a lawsuit. All of this detail and information is provided to a patient at no cost where contingency fee agreements are in place (generally speaking, under a contingency fee agreement, the client is not responsible for any costs, unless the attorney is able to recover a monetary sum. If recovery is made, the costs are deducted from any such recovery.).
The article further recommends that a patient consider if the injuries are of a type which would be considered within the acceptable risk for a given medical procedure. Yet, another recommendation encourages patients to evaluate if the care rendered was within the standard of care. All such recommendations, although very appropriate, are vague and ambiguous absent context. A mother whose baby was not timely delivered should not be expected to know how to interpret fetal monitoring strips. A patient who undergoes a hip replacement surgery should not be expected to know the proper surgical technique. A patient whose cancer remained undiagnosed should not be expected to know how to interpret blood tests or to read MRIs or other diagnostic tests.
Therefore, the suggestion that a patient should carefully evaluate the merits of his/her case should not be interpreted to mean that a patient should do so without the guidance of a skilled medical malpractice attorney. There is an important distinction between investigating a case and pursing a case.Â Just because you decide to employ a lawyer to investigate a medical malpractice claim on your behalf does not mean that you or the lawyer have committed to filing a lawsuit. With this in mind, it is important to realize that medical a malpractice attorney can be a great resource even if the client ultimately decides not to pursue the case. If you are unsure about whether you have a case or you are uncertain about the strenght of your case, take advantage of the resources and counsel of a skilled medical malpractice attorney.
How to tell if a lawyer is really a specialist
Throughout this post, I have emphasized skilled medical malpractice lawyer. Admittedly, sometimes it’s simply not that easy to tell from advertising or websites which attorneys are really specialists in medical malpractice investigations and litigation. If you have doubts, ask questions! Most people are pretty savvy and should be able to tell if the lawyer they are considering has a real grasp of the medicine and the law – both of which are required to be a skilled medical malpractice lawyer. Remember, you are entrusting your case to someone you really don’t know.
You ask questions in your daily life’s affairs and form judgments on whether or not you would entrust your childcare to some, which mechanic you’ll let fix your car, which home repair specialist you’ll permit to enter your home and do needed repairs. You get a sixth sense feeling sometimes as to whether or not the one your talking to (i.e. interviewing) will be a good fit for the task at hand. Why should it be any different with a lawyer, who claims he or she is a medical malpractice specialist. Just as we constantly preach about choosing a doctor, make informed decisions after asking the right questions.
If you need some guidance on what questions to ask, take a look at the White Paper we posted on our website – “Choosing a Lawyer – a Primer.” Hopefully, this will help you make an informed decision before you sign that fee agreement.