In this section we discuss how a personal injury attorney starts a medical malpractice claim. An attorney normally begins the claims process by sending the doctor a notification letter. The letter puts the doctor on notice he has committed malpractice, and you intend to seek compensation. A properly written notification letter can serve as strong incentive to settle a claim before it gets to trial.
The attorney uses proper medical and legal terminology in the letter. Using the correct terms helps make a notification letter clear and professional.
Here are some medical and legal terms an attorney may use:
- “Presented” is a word doctors use. Instead of saying, “The patient told me,” or “the patient was trembling,” doctors often say “The patient presented as a 35-year-old male with….” or “The patient presented symptoms of nausea and lethargy.”
- The “day it happened” is referred to as the “date of loss.”
- The “what happened” is referred to as the “incident.”
- Instead of saying “You’re guilty for what you did” (or didn’t do), he may use the word “culpable.” For example, “You’re culpable for your negligent actions, which resulted in….”
- Instead of saying things like “Because you didn’t order blood and urine tests, you’re…” your attorney might say, “As a direct and proximate result of your failure to order blood and urine tests….”
- Instead of saying “Because you were in the wrong….” or “Because of what you did….” the attorney will use the word “negligence.”
- Certain injuries might require someone to sleep alone in a bed. Any nights your spouse had to sleep on the couch and couldn’t sleep with you is actionable. Personal injury law in most U.S. states allows you to claim damages for that lack of intimacy. The legal term your attorney will use to describe lack of intimacy is “loss of consortium.”
- Being seriously ill or injured can cause damage to your psychological wellbeing as well as your physical health. People often feel anxious, depressed or guilty during their recovery. An injury that causes psychological damage is the same or worse than the damage to physical health. These intangibles are commonly referred to as “emotional distress or mental anguish.”
- “Negligence by omission” is a phrase commonly used when the culpable party didn’t actively do something to hurt you. Instead, he didn’t do something he should have done to protect you. In this case “but for” the doctor’s negligent omission (by refusing to order tests), you wouldn’t have suffered as you did.
- “Medical protocol” refers to the usual and customary method associated with the diagnosis of an illness. Your attorney may say something like, “The doctor failed to follow medical protocol.”
Relying on proper medical and legal terminology, the attorney writes the letter. The letter will break down to include:
- A sentence or two confirming the day and date of your office visit
- A statement confirming why you made the appointment and the reasons you were going to see the doctor
- A clear and explicit statement confirming the doctor’s negligence by omission, which led to your illness
- An initial listing of the damages you already suffered and may continue to suffer in the foreseeable future. These can include, but are not limited to, the emergency room bill, lab tests, prescriptions, lost wages, mental anguish and any other costs you incurred because of your illness. The letter won’t include any dollar figures. That comes later.
- The letter tells the doctor to turn the letter over to his insurance company immediately and of the legal consequences if he doesn’t.
- Finally, the letter is sent by certified mail so there’s no question about the doctor’s receipt of the letter. The signed receipt of the letter gives undeniable proof the doctor is put on notice.
Below is a sample notification letter for medical malpractice settlements. In medical malpractice claims the attorney customarily files a lawsuit at or about the time she sends the notification letter.
Doctors and insurance companies rarely turn over evidence voluntarily. The attorney has to file a lawsuit so she can use the subpoena power the rules of evidence provides. A subpoena of medical records or other documentary evidence is referred to as a subpoena duces tecum.
(Attorney’s Name and Address)
JACQUELINE L. PIERCE
Attorney at Law
15562 Ellington Ave.
Dallas, TX 75247
Telephone: (214) 689-XXX9
August 29, 2012 (Date of Letter)
James Clanis, M.D. (Doctor’s Name)
2661 Forest Lane, Ste. 165
Dallas, TX 75247
CERTIFIED RRR – A277867786
Re: Your Patient: Ms. Nora Fairfax
Our Client: Ms. Nora Fairfax
Date of Birth: 02/25/1971
Social Security No.: 057-46-34XX
Date of Loss: July 6, 2012
Re: Ms. Nora Fairfax and James Clanis M.D.
Dear Dr. Clanis:
Ms. Nora Fairfax has retained this office to represent her in a medical malpractice claim against you.
Our client has been a patient of yours since January 1, 2011. On July 6, 2012, Ms. Fairfax came to your office for a scheduled appointment at 9:30 a.m. While waiting to see the doctor, a member of your staff took her blood pressure and temperature. She informed our client her temperature was 103 degrees, and her blood pressure was 100/60. She made a corresponding written notation in her file.
Ms. Fairfax was compelled to wait until approximately 11:00 a.m. before you finally saw her. She presented with claims of high fever, lethargy, dizziness, severe nausea and vomiting. She told you she suffered from these symptoms since on or about June 10, 2012.
You spent less than five minutes with our client, failing to perform even a cursory examination.
Instead, you diagnosed Ms. Fairfax with “the flu,” telling her to “rest and drink plenty of water.” You told her she would be “fine in a few days.” You prescribed no medication and failed to order further testing, including, but not limited to, a blood test or urinalysis.
Ms. Fairfax followed your advice. Believing she had the flu and would recover in a few days, she sought no further medical treatment. On July 11, 2012, Ms. Fairfax lost consciousness. An ambulance took her to Misericordia Hospital in Dallas, Texas. After a blood and urinalysis workup was ordered, Ms. Fairfax was diagnosed with a staph and strep infection. The infection had already spread to her liver, causing irreparable damage.
Further testing revealed Ms. Fairfax suffered from toxic shock syndrome. Unfortunately, the delay in treatment from July 6, 2012, until July 11, 2012, resulted in Ms. Fairfax suffering irreparable damage to her liver.
Your failure to exercise reasonable medical care resulted in an unnecessary delay of treatment. As Ms. Fairfax’s gynecologist it was incumbent upon you to recognize symptoms requiring further testing and treatment. You failed to do so. Your failure resulted in Ms. Fairfax’s suffering unnecessary liver damage.
As a direct and proximate result of your actions and omissions our client has suffered damages including, but not limited to:
- Kidney failure
- Medical bills
- Present and future medical costs
- Lost wages
- Emotional distress
- Loss of consortium
- Pain and suffering
On behalf of Ms. Fairfax we seek compensation representing the above damages. Please give this letter to your insurance company immediately. If for any reason we do not hear from you or a representative of your insurance company within thirty (30) days of your receipt of this letter, we will commence legal action.
Jacqueline L. Pierce
Attorney at Law
This notification letter puts the doctor on notice of a medical malpractice claim against him. Within five minutes the doctor most likely will be on the phone to his insurance company in a panic. Doctors don’t like to receive these types of letters.
After the Notification Letter
Within a short time after receiving the letter, an insurance company claims adjuster or the insurance company’s attorney will contact your attorney. The conversation will usually include a mutually implied desire to settle the claim before it goes to trial. This is especially true when the evidence of malpractice is clearly set out in your attorney’s notification letter.
This is not the time in the claim when your attorney has to be overly aggressive or demanding. She knows keeping calm goes a long way toward your getting a fair medical malpractice settlement.
The process will continue with the discovery phase. This is when your lawyer takes depositions. Also, the attorneys shuttle interrogatories and requests for production back and forth. At the same time pretrial hearings are held.
The insurance company may also want one of its doctors to examine you, but your attorney probably won’t agree. The insurance company’s attorneys may get the court to order you to submit to an “independent” examination by one of its doctors. At all times during your claim’s discovery phase your attorney will guide you and answer any questions you may have.
Once your attorney has subpoenaed as much evidence as she can in support of your claim, she will send a written demand letter. The letter summarizes the evidence and demands the compensation she believes your case merits.
Medical Malpractice Settlements
The good news is most attorneys settle medical malpractice claims. Neither the insurance company nor your attorney wants to go to trial. The insurance company doesn’t want to expose its insured doctor to your attorney’s relentless cross-examination. Nor does it want the doctor’s entire professional life exposed – the good and the bad – because almost all court proceedings are public records.
Further, most insurance companies don’t want to take a chance with a jury. Juries often render verdicts based on the emotional aspects of a case. Although many states now have a cap, or a limit, on how high a jury verdict can go in a medical malpractice case, insurance companies still don’t want to take a chance.
In the event your medical malpractice claim can’t be settled, you will eventually have to appear for trial. To prepare for trial, your attorney will conduct several practice sessions so you know how to answer questions during your testimony.
It’s common for medical malpractice claims to get settled “on the courtroom steps,” or during the trial itself. It usually depends on the type and amount of evidence that comes in during the testimony. Often, attorneys for both sides realize a settlement is mutually beneficial.
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