Medical Malpractice Settlements: How They Work

How do medical malpractice settlements work?  It depends on the laws of the state in which the alleged malpractice took place and the facts of the actual case. Most doctors are willing to settle to avoid uncertainty and the risk of a trial.

Negotiations for a settlement usually occur between the plaintiff and their lawyer, the defendant and their lawyer, and also the insurance company's lawyers. It may be very complex and lengthy or as easy as cutting a check. Economic damages are easy to quantify, yet suffering and pain is usually not easy to negotiate.

The physician can take her or his risks and go to trial. An attorney can help a physician get a clearer idea of the way in which a jury might see the facts of the case. Additionally, the physician's insurance company may have a mandatory maximum settlement payment after which they'll take their chances in court so going to trial may be the only option. A physician can be dropped entirely from coverage for any settlement a physician consents to or can see in an increase in malpractice premiums.

Settlements frequently contain nondisclosure agreements in which both parties agree to keep the terms confidential. This can benefit the doctor by protecting her or his reputation, however it doesn't reveal to possible patients whether a doctor was involved in a malpractice suit. There needs to be a way to discuss problems that lead to alleged medical errors without damaging capability to practice medicine or a doctor's standing.  Transparency is necessary to address patient safety issues and review medical errors to prevent them in the future.

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HOW TO GET THE MOST OUT OF YOUR MEDICAL EXPERT

What is the best way to maximize the efficacy of your medical expert witness and minimize the cost?  A lot of attorneys seem to be frustrated with a product that is not what they were searching for and high bills. I work with lawyers and physician medical experts every day, and I also do expert witness work myself. In my experience, the best thing you can do as a lawyer to optimize the efficiency and minimize the cost of your medical expert is to:

Make Sure Your Medical Expert Knows Exactly What You Want Them To Do!

Every case and every attorney client is distinct; your medical specialist must be told what you want from them. If you tell them to "review a case" be very specific regarding what that means to you personally! Do you want them to: write a case summary; build a timeline; analyze the case for merit; write a medical opinion; or examine one area of the records? Tell your medical specialist what has been done and what you already know about the case. Give specific directions considering whether you need an oral or written report and precisely what criteria should be included.

Ensure that your medical expert knows which sections of the case don't need to be reviewed. For example, is there something special you're seeking in the nurse's notes, or, since you have already gone through them yourself, can they be put aside?

Have a comprehensive list of what you need before you contact an expert. What should they stay away from, has the case already been reviewed for merit?  I know firsthand if you are more specific you will save money and get results that are far more relevant to your needs!

Hopefully you found this tip helpful to your practice! To learn more about our services,please contact us today! Your first consultation with one of our physician directors is always free.

Professional Medical Interpreters are Life Saving

Proper communication is essential, particularly during emergency medical situations, but imagine how complicated it may be if you did not speak the language. More than 25 million Americans do not speak English. A patient who can’t describe symptoms or understand the doctor’s recommendations can easily become the victim of a mistake. However, in many states, interpreter services are not reimbursable. If there is no financing to support the usage of qualified translator services, many health caregivers count on household members (regularly kids) to understand during medical appointments. Untrained interpreters don’t have a medical background and can have difficulties understanding what the physician is saying causing difficulty translating. Medical mistakes including improper medication use, insufficient consent, and performing the incorrect procedure, could be a consequence of low quality translation.

Most healthcare facilities have policies in place that stop the use of bilingual personnel and household members as interpreters. However, in truth most healthcare providers ignore these rules for worries that the patient could be endangered by the delay in waiting for an interpreter. The precise impact of poor quality translator services is not known because non-English speakers aren't likely to complain about small medical mistakes, however, some new reports demonstrate a higher readmission rate among non-English speaking patients. Additional reports show that patient care improves drastically with the use of professionally qualified interpreters.

The Office of Budget and Management estimated that translator services cost over $98 million annually in the US. Those expenses often mean that the physician loses money on every interaction with a patient that requires a professional interpreter. However, the cost of not having an interpreter could be also bigger by causing a lawsuit or evoking the individual avoidable harm. The utilization of professional medical interpreters might cost less in the long run and avoid translation malpractice lawsuits.

We work at the intersection of medicine and the law.  Please contact us today with any questions regarding our services.

Recording Your Doctor Visit – Is that OK?

Anyone with a Smartphone can record their doctor's appointment with or without the physician knowledge or the physician's permission. There are lots of reasons that patients have to record a visit including to share the information with a caregiver or family member, to remember or refresh the recommendations given, and to review it in a more relaxing environment. Many doctors are opposed to being recorded for fear that the recording will be used in a lawsuit (possibly even edited to present only part of the dialogue), along with the very fact that the doctor-patient relationship is confidential. Most doctors say they'd refuse to be recorded if asked.

In most states it is legal to record an in-person conversation without getting consent from everyone present. Thus, even if your physician refuses to be recorded, you can legally still do it (check your state laws first). Some doctors feel trust is violated by these recordings and they would immediately terminate the doctor-patient relationship if they caught a patient recording an appointment. Some offices have posted warning signs or have written statements regarding the office's "no recorded visits" policy. Other physicians, however, do allow recordings and some even encourage it. These physicians believe that if you're practicing good medicine you have nothing to worry about. Patients that can review a recording later may follow recommendations and guidance more thoroughly. In some physician offices, all appointments are being recorded for the patient. In such instances, problems about partial or edited recordings being presented in court no longer apply. Having these recordings that are complete could prove useful in defense of any malpractice lawsuit as the advice to document everything will ultimately have been completely complied with.

We work at the intersection of medicine and the law.  Please don’t hesitate to contact us if you have any questions about our services!

What are the origins of Medical Malpractice Litigation?

Laws in ancient Rome and Greece allowed doctors to be immune to punishment for actions committed for their profession. This was the status in Europe before 14^th century as well. The first recognized case of medical malpractice was in 1374 in London, England. A woman charged a surgeon for violation of contract. The woman stated that the doctor promised to repair her mangled hand for a fair payment, but did not do this. That lawsuit was dismissed because of  the wording of the complaint. However, in providing the judgment, the judge established some fundamental guidelines for medical malpractice – relating the case to treating a horse. He explained if a patient were hurt due to his negligence, that a physician could be liable for medical malpractice; however, if a good faith effort was made by the doctor, he would not be held liable, even if he were unable to cure the condition.
The initial recorded medical malpractice case in America took place just before the American Revolution. In that case, a woman called Cross, reported pain in her chest. The physician, Dr. Guthery diagnosed scrofula, a type of tuberculosis infection within the lymph nodes. Dr Guthery immediately conducted an amputation of the breast, but Ms. Cross suffered complications and subsequently hemorrhaged to death.  Doctor Guthery sent her husband a bill for 15 pounds plus his regrets. Her husband filed a lawsuit against Dr. Guthery and not only persuaded a jury to dismiss the bill, but also gave him 40 pounds as compensation for the lack of his late wife’s companionship. Therefore arose the marvel of medical malpractice litigation.

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Communication and Resolution Program Reduces Malpractice Lawsuits

In Massachusetts, a plan meant to create resolution and communication between patients and health care providers has resulted in fewer malpractice lawsuits. Under this strategy, the patient is required to notify the hospital or other healthcare provider of the intent to sue, but then has to wait 6 months before actually filing suit. This waiting period allows providers time to investigate and offer a response to the individual.

Many doctors and patients are finding this program a lot more acceptable than a lawsuit. Doctors frequently feel terrible about any harm done and having a chance to offer a heartfelt apology and clarify what happened is far more appealing than winning a lawsuit. Patients are often happier to get an apology than have to undergo a lawsuit, and often hospitals who realize they have made a blunder provide the patient a financial settlement. The primary motivation for medical malpractice suits is often not cash, but desiring to know why and what happened. Honestly discussing what happened and receiving an apology is often what's really desired. Another favorable side effect of this system is it allows a hospital to openly inquire what occurred, admit that a mistake was made, and also make changes to prevent similar errors later on, whereas, during a suit hospitals are unable to do this.

We work at the intersection of medicine and the law.  If you have any questions about our services, don’t hesitate to contact us.