BEFORE YOU SUE

Before you sue your doctor you should first decide whether you are suing for the right reasons

Medical Litigation News
Medical Terminology Glossary

The information given is based on professional experience and published medicolegal research, is necessarily general, and is applicable primarily to Canada. Much is also applicable in the United States of America, the United Kingdom and other jurisdictions.

Purpose

*Before you sue your doctor you should first decide whether you are suing for the right reasons

DECIDING WHETHER TO SUE

Suprisingly few people who have suffered an injury from substandard medical care file a malpractice claim. Only 1 to 2 percent according to the 1990 Harvard Medical Practice Study[1] in New York State. However, most people who consult a lawyer about a medical malpractice suit do not have a viable case. Experienced lawyers will turn away at least 95% of cases[2]. Most malpractice claims that are filed are unsuccessful.

In the 1990 Harvard Medical Practice Study[1] in New York State about 85 percent of malpractice claims were filed in cases in which there was ruled to be neither negligence nor injury.

According to the Canadian Medical Protective Association³, the defence organisation for most Canadian doctors, two-thirds of cases are dismissed or discontinued, a quarter are eventually settled, and in only 3% does judgment go to the plaintiff.

Before you sue your doctor you should first decide whether you are suing for the right reasons

WRONG REASONS

HEALING

Deciding that your medical malpractice litigation must succeed before you can heal your hurt or adjust to your injury is a serious mistake.

Caregivers cannot be sued for having poor communication skills.

An unfortunate attitude on the part of the caregiver may be distressing but is not cause for action.

Except in an emergency, a medical professional cannot be sued for refusing to accept a person as a patient, or for delegating care to a competent colleague.

Although there may be a clear requirement for the physician to disclose all material risks, however rare, success on lack of informed consent alone is rare.

Frequently judge or jury will determine that without the benefit of hindsight the patient would have accepted the risks and consented to treatment.

LIMITATION

Do you have time to file?

Lawsuits must be initiated soon after the event and legal advice should be sought as soon as possible.

Depending on your jurisdiction, you may have as little as a year or less to file a claim for medical negligence. The Limitation period depends on a number of factors, and you need legal advice to determine that limit in your particular circumstances.

In the provinces and territories of Canada, the Limitation period currently varies between 1 and 3 years from, variously, the last treatment, termination of professional services, cause of action, or the date on which the plaintiff knew or ought to have known the facts on which the action is based⁴.

Do you have the necessary patience and tenacity?

Medical malpractice litigation usually takes 3-5 years.

Can you afford to sue?

Cost of litigation is measured in the tens of thousands of dollars.

If you win, some or all of your costs may be payable by the other side.

Whether you win or lose, you are responsible for paying your lawyer for his or her time.

If the case has a high chance of success, your lawyer may be prepared to fund some of your costs in exchange for higher fees or a higher percentage of any settlement or award.

Can you answer all the Defence submissions?

Medical defence is usually vigorous and sophisticated.

The medical professional's reputation is paramount, and the usual question of whether an action is economically worth defending does not apply.

Is your case free from fatal weaknesses?

Every case has weaknesses: success is never certain.

Even when standard of care has clearly been violated, causation may be difficult or impossible to prove.

Are the Damages worth the effort?

Potential monetary settlements or awards may be disappointingly small.

In Canada, the maximum general damages for pain and suffering is ed to inflation and rose from $100,000 to $250,000 between 1978 and 1995⁴.

Are you prepared to sue whomever it is necessary to include for success?

The actions of other caregivers whom you like and trust may be found to have contributed to your injury.

Suing one medical professional but refusing to sue another may be fatal to the case.

Are you able to carry your Burden of Proof?

The physician or caregiver owed the patient a duty of care.

This is generally self-evident and not in dispute.

The physician or caregiver failed to reach the required standard of care.

Medical community standards are far from ideal; generally do not match Clinical Practice Guidelines.

The patient suffered loss or injury.

It is necessary to prove, with a probability greater than 50%, that the outcome would have been materially better in the absence of the substandard care.

The loss or injury resulted from the breached duty of care.

Many unexpected and undesirable outcomes of medical treatment occur in a percentage of cases and do not, of themselves, prove or even suggest substandard care.
Can you address these answers from the Defence?

Even though the chosen form treatment may not have been standard, the caregiver may argue that it was a reasonable alternative practised by a minority of competent professionals.

Medical professionals are not expected by law to be perfect, and an honest error of judgment is not actionable.

The medical professional may argue that any continuing symptoms are merely the result of the illness for which treatment was sought, or of a pre-existing or unrelated condition.

Similarly, the caregiver may claim that the substandard care had no impact on the course of the illness.

This may be a technicality, but it is a valid and successful defence, however much merit the case may have.

If the patient failed to seek or follow recommended treatment to reduce (mitigate) the negligent injury, the medical professional may argue successfully that the substandard care is not, or is only partially, the cause of ongoing symptoms.

If so, you should take these Actions

Choose a lawyer experienced in Medical Malpractice (Negligence) litigation.

Some lawyers practising Personal Injury law like to offer occasional services in Medical Malpractice, not realising perhaps that this area of specialistion is a minefield for the uninitated.

As soon after the events as possible, write down all details which might be relevant, and keep an ongoing diary of all related symptoms and events.

Have witnesses do the same.

Personally or through your lawyer, obtain copies of all relevant medical records.

In all jurisdictions of Canada, the patient has a right to receive, at reasonable cost, copies of all medical records, including consultation reports received from other physicians.

If the physician judges disclosure of part of the record is not in the best interests of the patient, s/he may deny access to that part but is obliged to satisfy the court that disclosure would be harmful.

MINIMISE THE EFFECTS OF THE INJURY

Consider and cooperate with all reasonable recommendations of your caregivers for healing and diminishing your disabilities.

Consciously or unconsciously, many people maintain disability unnecessarily from the mistaken belief that it will assist their litigation.

Accepting what cannot be changed is equally important. Learn to adapt to your disabilities and modify your lifestyle and goals accordingly.

Making the litigation the central focus of your life will almost certainly be an exercise in frustration.

If no, you should consider these Alternatives

Under circumstances in which a reasonable medical caregiver must acknowledge that there is some merit to the suit, s/he may consider alternative forms of dispute resolution.

Although the evidence is weighed by a judge, many of the usual rules of evidence do not apply, and medical professionals may, in circumstances of evident liability, decide not to defend vigorously, in exchange for a much reduce quantum of damages.

Licensing bodies (State Boards in the United States of America, Provincial and Territorial Colleges of Physicians and Surgeons in Canada, and the General Medical Council in the United Kingdom) are charged with the responsibility of protecting the public from incompetent and unethical practices of doctors.

The information on this website is offered to assist people who believe they have been injured by medical negligence to determine whether they have a successful cause for action, and to adjust to their losses.

*REFERENCES    

1. AUTHOR	Localio AR, Lawthers AG, Brennan TA, Laird NM, Hebert LE, Peterson LM, Newhouse JP, Weiler PC, Hiatt HH
INSTITUTION	Center for Biostatistics and Epidemiology, Penn State University College of Medicine, Hershey 17033.
TITLE	Relation between malpractice claims and adverse events due to negligence. Results of the Harvard Medical Practice Study III.
SOURCE	N Engl J Med 1991 Jul 25;325(4):245-251
ABSTRACT	BACKGROUND AND METHODS.   By matching the medical records of a random sample of 31,429 patients hospitalized in New York State in 1984 with statewide data on medical-malpractice claims, we identified patients who had filed claims against physicians and hospitals. These results were then compared with our findings, based on a review of the same medical records, regarding the incidence of injuries to patients caused by medical management (adverse events). RESULTS.  We identified 47 malpractice claims among 30,195 patients' records located on our initial visits to the hospitals, and 4 claims among 580 additional records located during follow-up visits. The overall rate of claims per discharge (weighted) was 0.13 percent (95 percent confidence interval, 0.076 to 0.18 percent). Of the 280 patients who had adverse events caused by medical negligence as defined by the study protocol, 8 filed malpractice claims (weighted rate, 1.53 percent; 95 percent confidence interval, 0 to 3.2 percent). By contrast, our estimate of the statewide ratio of adverse events caused by negligence (27,179) to malpractice claims (3570) is 7.6 to 1. This relative frequency overstates the chances that a negligent adverse event will produce a claim, however, because most of the events for which claims were made in the sample did not meet our definition of adverse events due to negligence.  CONCLUSIONS.   Medical-malpractice litigation infrequently compensates patients injured by medical negligence and rarely identifies, and holds providers accountable for, substandard care.

 

2. AUTHOR	Grove-E, Ferrara-M-A-Jr.
TITLE	Outcomes of medical-malpractice litigation http://www.nejm.org/content/1997/0336/0023/1680.asp (letter; comment).
SOURCE	N-Engl-J-Med 1997 Jun 5, VOL: 336 (23), P: 1680; discussion 1680-1, ISSN: 0028-4793.
ABSTRACT	Over the past 19 months, our law firm has received 323 calls regarding possible claims of medical negligence. We have filed suit about 1 of these potential claims and are evaluating 11 others.   The reasons for filtering out 96 percent of the calls can be broken down as follows: 76 calls (23 percent of the total) involved people thought to have been permanently injured as the result of medical negligence, but not seriously enough to warrant the expense of litigation; 70 (22 percent) involved people with preexisting conditions that made weeding out the true effect of the negligence profoundly difficult; 40 (12 percent) involved cases in which the statute of limitations had expired; 36 (11 percent) involved bizarre or incoherent stories that did not warrant further investigation; 30 (9 percent) involved people who had not been injured permanently; 29 (9 percent) concerned people who had a poor result of either orthopedic surgery or neurosurgery that was not due to negligence; 18 (6 percent) involved people who did not comply with recommended medical treatment and thus added to their travails; and 12 (4 percent) involved people who lied to us about important facts in their cases.   Our experience should be comforting to physicians, since our method of screening effectively keeps the number of potential claims down. It is in our best interest to pursue only meritorious cases, because we receive compensation only when a case is successfully settled.   - Canadian Medical Protective Association, 1994.

 

AUTHOR	Kidd-S-B, ed.
TITLE	The physicians' legal manual.
SOURCE	Emond Montgomery, 1996, ISBN 0-920722-79-2.

 

The Plain-Language Law Dictionary

Copyright 1994, Parsons Technology Inc.

Arbitration. The submission by two contesting parties of their disagreement to an impartial arbitrator, usually agreeing that his ruling in the dispute will be binding and final.

Damages. Compensation that the law awards to someone who has been injured or suffers a loss because of the action of another.

Immediate cause. The final, determining cause of an outcome or event. An immediate cause may be preceded by many contributory causes, none of which actually produced the ultimate event.

Legal cause. The real cause of an injury or accident; the immediate cause; the proximate cause.

Limitation. A limit; a restriction; a specified period of time during which a litigation can take place and after that period, the statute of limitations has expired; a time limit.

Malpractice. Professional misconduct; immoral behavior in the performance of one's professional duties; neglect of one's duties toward a client by an attorney, or toward a patient by a physician; unusual lack of skill in the performance of one's professional activities.

Mediation. The settlement of disputes between two parties by the intervention of a third party, who acts impartially and attempts to reconcile differences. This third party is known as a mediator.

Medical evidence. Testimony given by physicians, usually as expert witnesses, in a suit.

Negligence. Failure to do what a reasonable, careful, conscientious person is expected to do; doing something that a reasonable, careful conscientious person would not do.

Plaintiff. The party who is bringing a lawsuit against a defendant; the person or persons who are suing.

Prima facie case. A case or action that will win unless the other side produces strong evidence to contradict it; a case with sufficient positive evidence to convince a judge and/or jury.

Proximate cause. The immediate cause of an injury or accident; the legal cause; the real cause; a direct cause.

Res ipsa loquitur. "The thing speaks for itself" (latin). A legal phrase meaning that the facts, testimony, and circumstances are so clear that one can conclude, without doubt, that a certain act, or omission of an act, caused a particular damage or injury

Small claims court. Courts set up for the express purpose of settling small claims. Decisions in such litigations are made by a judge within a short period of time, thereby avoiding a prolonged trial.

Standard of care. The type of care that is usually given by prudent, sensible people; the opposite of substandard or negligent care.

Tort. A wrong committed by one person against another; a civil, not a criminal wrong; a wrong not arising out of a contract; a violation of a legal duty that one person has toward another. (Negligence and libel are torts.) Every tort is composed of a legal obligation, a breach of that obligation, and damage as the result of the breach of the obligation.