Should you sue a healthcare provider? Some guidelines to help you decide.

This post was authored by Jon Stefanuca and posted to The Eye Opener on April 14th, 2011.

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Recently, a CNN article titled “Harmed in the Hospital? Should You Sue?” 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 provider’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 plaintiff’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 patient’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.  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  (or should) undertake  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  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.  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.

Related Posts:

The Reality of Medical Malpractice Lawsuits: Demystifying and Dismantling the Medical Profession’s Arguments

Every bad outcome and injury does not a malpractice case make! Some practical advice.


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4 Responses to “Should you sue a healthcare provider? Some guidelines to help you decide.”

  1. ok I had a fall down some stairs and ended up with a left broken hip. and broken left foot.I was transported by ambulance to the ER, I was given morhine for pain in my IV I was taken to x-ray and then was told by a nurse that it looked like I was going into emergency surgery to have a hip replacement. Now I have to say I had no problems with anyone in the hospital, They were all kind to me. I am 54 yrs old and already on disability, I live in florida but was here in IL when this happened. My question is did I really have to had this done I was not given a choice. after I was out of the hospital I did research on hip replacements and I am so freaked out over the fact it can dislocate things I will not be able to do anymore. I will be really really be upset if I find out that there was something else that could have been done. PlEASE FIND OUT IF I COULD HAVE AVOIDED SURGERY THANK YOU LINDA KINSELLA

  2. Brian NashNo Gravatar says:

    Linda – so sorry to hear what you’ve been through and the concerns you have. Seems like you are still in Illinois from your comment. Since the care about which you are “concerned” or at least questioning in terms of your “options” appears to have been rendered in Illinois, you should, if you have questions in this regard, should be addressed by a lawyer in that state. Remember, every state has different laws or interpretations of laws in many instances. You seem to be wondering about the issue of whether or not the risks, benefits and alternatives to your treatment were adequately explained to you before you consented to the procedure. This is generically referred to as “informed consent.” So – while your in Illinois, if you are still wondering “if something else could (and should, really) have been done, give a call to a COMPETENT, EXPERIENCED lawyer who specializes in medical malpractice matters – i.e. don’t waste your time and effort in calling just any lawyer. When you call – if you do – ask questions to make sure this is area of law that firm really specializes in. Too many lawyers claim to be specialists in medical liability/malpractice cases but don’t really do this very specialized area of law.

    Finally, you ask “Please find out if I could have avoided surgery.” There simply is no way that we can do this for you. That is an issue that a lawyer in Illinois would have to discuss with you, but, keep in mind, of course, that the vast majority of lawyers are NOT physicians. We all rely on qualified expert medical specialists to answer the “medical questions.”

    Good luck to you. Again, sorry to hear what you’ve been going through.

  3. Thank you so very much for your thoughts of what I should do. And I am going to do just that .I am going to research and find a lawyer that does nothing but medical suits. I really need an answer to my question. If I am convienced by an expert maybe I can have some mental closure to this whole nightmare. Again I Thank you Linda Kinsella

  4. Brian NashNo Gravatar says:

    My pleasure, Linda. As I said before – best of luck.

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