How to Identify Physician Malpractice and What You Can Do About It



Each year thousands of patients suffer needless pain and discomfort due to doctor errors. If you've been the victim of physician malpractice, promptly seek the counsel of an experienced medical malpractice attorney. It's virtually impossible to sue a doctor on your own. Malpractice litigation is complex, with some cases taking years to resolve.

Physicians seldom admit to malpractice, to do so would be to admit negligence. A physician with a reputation for committing malpractice will quickly find himself without patients, while losing medical privileges at local hospitals.

Unlike most of us, who have no say in whether our insurance company will settle an accident claim filed against us, physicians have a "consent to settle" clause in their malpractice insurance policies. This gives them the right to refuse to settle a malpractice claim filed against them.

What constitutes physician malpractice?

Malpractice occurs when a doctor's treatment deviates from the medical standard of care in the local community, resulting in harm to the patient. For legal purposes, the medical standard of care is defined as "the type of care a reasonably competent physician, practicing the same type of medicine [your physician practices], would have provided under the same circumstances."

The definition is vague and open to interpretation. The medical standard of care in one area of the country may be completely different from the standard in another part. For example, a physician practicing in a remote, rural part of the country may have to deliver babies, perform minor surgery, treat infectious diseases, and more. Access to sophisticated diagnostic tools like CT scans or MRIs may be miles away.

Also, physicians have different opinions about the correct standard of care in their respective fields of practice. It would be impossible for that small town physician to have specialized skills, like those of an obstetrician, neurologist, or oncologist. A small town doctor who makes a medical error may have done the best he or she could with the tools available.

Physicians, like everyone else, aren't perfect and do make mistakes. Making a mistake, such as prescribing the wrong medication, in itself doesn't mean the physician committed malpractice. If the mistake is caught in time and no one is injured, then there's no basis for a malpractice claim.

Malpractice that doesn't result in serious injury or illness, or unnecessary exacerbation of an existing injury, is malpractice without a legal remedy. To have the basis of a physician malpractice claim, the error must result in more than just an angry patient. If your physician made a mistake and the only injuries you sustained were some anxiety or anger, your recourse may be limited to filing a complaint with your state's medical board.

While there are many examples of physician malpractice, the following are among the most common:

  • Failure to diagnose
  • Misdiagnosis of a disease or medical condition
  • Failure to provide appropriate treatment
  • Unreasonable delay in treating a diagnosed medical condition
  • Violation of HIPAA (Health Insurance Portability and Accountability Act)
  • Failure to secure informed consent from a patient

Who decides if my doctor committed malpractice?

If your attorney believes you have the basis of a legitimate malpractice claim, he will first file a lawsuit. Malpractice cases aren't like personal injury cases, where your attorney negotiates your hospital bills, lost wages, and a bit of pain and suffering with a claims adjuster. Medical malpractice cases are almost always litigated.

Your physician's insurance company will provide him with aggressive defense attorneys. They will hire expert witnesses to testify that your treatment did not deviate from the medical standard of care in your community.

In malpractice cases, expert witnesses are usually physicians with excellent reputations who practice the same type of medicine your physician does. Some of these physicians are no more than highly paid professional witnesses, who, for a sum of money, will agree to testify for one side or the other.

To win, your attorney must also hire expert witnesses to testify on your behalf. They will say the defendant physician did deviate from the medical standard of care in your community, and that deviation constituted negligence, which was the direct and proximate cause of your injury or illness.

Along with your testimony, expert witnesses, your medical records, and other supporting evidence, your attorney will do all she can to convince the jury the defendant physician committed medical malpractice.

In the "battle of the experts," the courtroom effectively becomes ground zero. To prosecute your case, your attorney will spend a lot of money for pretrial depositions, subpoenas, court reporters, expert witnesses, and more. In these cases, attorneys work on a contingency basis, and pay all expenses out of their own pocket. These expenses are reimbursed if they win the case. If not, they receive nothing.

Is it malpractice?

Let's break down a couple of examples to more clearly demonstrate the ins and outs of medical malpractice...

Example: Failure to Diagnose Celiac Disease

Sara went to see one of her HMO's approved gastroenterologists because of stomach cramps, nausea, and fatigue. Initially, the physician told her it was nothing serious, and recommended she purchase some antacids and avoid eating spicy food.

A week later Sara's symptoms worsened, and she went to see a different gastroenterologist who ordered a colonoscopy. The colonoscopy revealed she suffered from Celiac disease, a progressive disorder where the patient's intestinal villi are destroyed by food containing gluten. This gastroenterologist prescribed medication, and advised Sara to completely avoid eating foods containing gluten.

Upset over the first gastroenterologist's failure to order a colonoscopy, Sara decided to file a medical malpractice lawsuit. She was convinced her physician was incompetent, but one attorney after another refused to take her case.

The attorneys admitted the first gastroenterologist deviated from the medical standard of care, and as a result, probably committed malpractice. However, the deviation was not the direct and proximate cause of Sara's Celiac Disease. She had the disease before she saw the gastroenterologist. The week of needless pain and suffering is probably not worth very much in the eyes of a jury.

Because the damages she suffered were limited to one week of unnecessary pain and suffering, the costs of prosecuting Sara's case far outweigh the amount of any jury verdict she could expect to receive. As a result, no attorney will accept the case.

Example: Failure to Diagnose Prostate Cancer

Jim is a fifty-year-old male who was experiencing pain in his pelvic area, having occasional erectile dysfunction, and was abnormally fatigued. He made an appointment to see a urologist, who, concerned about his symptoms, referred him to an oncologist.

After spending five minutes examining him, the oncologist told Jim there was no need for alarm. He said Jim's symptoms were just part of the aging process and suggested he lose some weight, get more rest, and take ibuprofen for the pain. He prescribed Viagra for the erectile problems.

Relying on the oncologist's diagnosis, Jim went on a diet, slept more, and took ibuprofen for the pain. The Viagra didn't seem to help. While his symptoms continued, he blamed them on the aging process while relying on the oncologist's diagnosis. A year later, Jim's symptoms worsened to a point where he was unable to work, and in constant pain.

He went to see an internist, who ordered a PSA (Prostate Specific Antigen) test. When the results came back they indicated Jim's antigens per milliliter of blood was eight, double the acceptable level for men in his age range. Alarmed, the internist referred him to another oncologist.

After further testing, Jim learned he was suffering from advanced prostate cancer, which probably began about eighteen months before. If the first physician had diagnosed it at that time, there was a good chance the prostate cancer could have been successfully treated. It would have eliminated the need for aggressive chemotherapy, and its associated pain and discomfort. At this point, there was legitimate concern for Jim's survival.

Due to the first oncologist's failure to diagnose Jim's cancer, he sought the counsel of a medical malpractice attorney. After reviewing Jim's case, the attorney agreed to represent him. She promptly filed a malpractice lawsuit against the oncologist and hired expert witnesses to help prepare the case.

All the experts were convinced that spending no more than five minutes speaking with Jim, and failing to order a PSA test, deviated from the medical standard of care in the community. They concluded the oncologist's failure to take appropriate steps to diagnose his prostate cancer was the direct and proximate cause of the cancer unnecessarily spreading through Jim's body, reaching its present critical stage.

While they agreed the oncologist wasn't responsible for causing Jim's cancer, an early diagnosis would have avoided the need for aggressive chemotherapy, and all its associated pain and discomfort.

The case went to trial, and Jim's attorney put the renowned oncologists on the witness stand. They all testified the defendant oncologist's failure to properly diagnose was a substantial deviation from the medical standard of care in Jim's state, and quite likely, in most metropolitan areas in the country. They all agreed the oncologist's actions and omissions displayed incompetence.

The defendant's insurance company's attorneys put up several of their own renowned expert oncologists, who all testified that the PSA is not a medically reliable test for diagnosing prostate cancer. They also testified that the defendant oncologist's decision not to order a PSA was not the direct and proximate cause of Jim's cancer.

After deliberating for several hours, the jury returned their verdict. It stated:

Pursuant to the charge of the court, we find the defendant oncologist deviated from the medical standard for the community. We further find, from the evidence, that the defendant's negligent omissions were the direct and proximate cause of the plaintiff's injuries.

As to damages, we find for the plaintiff in the following amounts:

  • $25,000 in actual damages (med bills, testing, etc.)
  • $250,000 for pain and suffering
  • $1,000,000 in punitive damages*

* Punitive damages are awarded in cases of extreme negligence, when the defendant's actions were egregious, intentional, or when the defendant displayed a wonton disregard for the safety of the patient.

What to do if you're the victim of medical malpractice...

Gather copies of all your treatment records and medical bills, and receipts for medications, medical aids, etc. You have a legal right to copies of these documents from your treating physicians, hospitals, and other medical providers, including the physician you may be suing.

Seek out experienced medical malpractice attorneys. Most don't charge a fee for an initial office consultation. Visit with several, until you find one you feel confident will represent your best interests.

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