How big is the problem? Medical malpractice is a bigger problem than most people want to admit. We all want to trust our doctors, but the fact is, about 80,000 people die in the United States each year due partly to medical malpractice. Numerically, this is more than three fully loaded jumbo jets crashing every week with no survivors. That number of airplane crashes would mobilize many commissions, government investigations, and a huge effort to prevent the crashes. Unfortunately, since medical malpractice injuries happen separately and privately, the effect is not the same.
Even more disturbing, these numbers are only based on hospital statistics. They do not include deaths from missed diagnoses or medical negligence that occurred in clinics, private doctors' offices, or other treatment facilities.
Claims filed. At the same time, surprisingly few claims are filed. Only 2 percent of people injured by physicians' negligence seek compensation through a lawsuit (according to a 1991 article in the New England Journal of Medicine). A separate report from the Harvard School of Public Health ("Harvard Medical Practice Study") found slightly higher numbers. Their research found that only one in eight patients that suffers due to medical negligence ever files a lawsuit and only one in sixteen recovers any damages. However, despite the slightly higher percentage, the study concluded, "Our data make clear, then, that the focus of legislative concern should be that the malpractice system is too inaccessible, rather than too accessible, to the victims of negligent medical treatment."
Insurance. Iinsurance premiums have greatly exceeded insurance payouts for many years. For the period 1984 through 2002, Hawai`i medical malpractice insurers took in $350.8 million in premiums, and paid out $174.6 million in claims.) According to the U.S. Congressional Budget Office, medical malpractice insurance premiums amount to less than 1% of health costs.
Local regulation. There is little effective regulation of quality by the state licensing board. Only about one percent are disciplined each year. Usually, the charges involve substance abuse or financial fraud. Rarely is a physician disciplined for injuring a patient through medical malpractice.
First, be aware of the statute of limitations. You may have a valid claim, but if you wait too long, the claim is lost even if it is valid. The general rule is that the claim must be filed within two years after the malpractice, or two years after you reasonably should have known there was malpractice. However, there are a number of tricky exceptions, so do not give up just because two years may have passed already. As a general rule, delay helps the other side more than it helps you.
Second, you can generally forget about evaluating the claim yourself, or trying to "work it out" with the doctor or clinic or hospital. Usually, the "real" decision-maker is the doctor's insurance carrier. The insurance company is generally not paid to help you, or to be candid with you. They try hard to defeat your claim. You need an experienced professional to help you evaluate your claim. Without an attorney, the doctor's attorney and insurance company usually will not take you seriously.
Contact us, or any other law firm experienced in medical malpractice cases. There is no charge for an initial evaluation of your case. These cases are very different from other kinds of personal injury cases such as car accidents. Special rules and laws apply, and special tactics and strategies are important. If your case has any merit at all, an experienced attorney should be willing to sit down with you and explain all your options, without charge. Then you can make a full and informed decision about whether or not you want to go forward.
Breach of the standard of care. You must prove that the doctor made a mistake -- a mistake which a reasonable and prudent doctor would not have made under the same circumstances. Generally, this requires an expert witness (another doctor) to come forward and testify that your doctor did make a mistake. As you can imagine, this is not an easy process, since doctors do not like to testify against each other. Finding good expert witnesses is the critical part of most medical malpractice cases.
Causation. In addition to showing the doctor made a mistake, you have to show the doctor's mistake caused an injury to you. To look at it another way, the reason people go to see doctors is because they are sick. Even the best medical treatment may not cure a condition. So, you have to be able to show that IF the doctor had not made the mistake, then the patient would have gotten better, or would not have been injured as much. Again, it is critical to get an expert witness who is willing to testify to this.
Damages. Finally, you have to show what damages resulted from the doctor's mistakes. This could be anything from death to serious injury. It may include lost wages, medical bills, agony, mental suffering, or the loss of a loved one. Often, economists and other experts are necessary to calculate and present these damages in court.
