Screening and Investigation of Medical Malpractice Cases
The paramount goal in screening and investigating potential medical malpractice cases is very simple: TO SEPARATE THE GOOD CASES FROM THE BAD ONES AS QUICKLY AND EFFICIENTLY AS POSSIBLE!
This need to separate the “wheat from the chaff” applies in a sense to all personal injury work, but that need is particularly acute in medical malpractice cases. This is so because of the following characteristics of the typical malpractice case:
The complexity of the case;
The cost of preparing and litigating the case;
The high risk of no recovery; and
- The client’s “personal” attachment to the case.
The best possible advice on how to screen/investigate malpractice cases, therefore, is to gather relevant information, conduct appropriate medical research, and obtain an expert review of the case as soon as possible. The balance of this outline will be devoted to that process.
II. INITIAL CLIENT CONTACT
A. Obtain a Medical History — The client is generally not the best source of background medical information. (The medical records are the best such source.) Nevertheless, you should obtain a medical history from the patient, at least insofar as he or she understands it. Also at a minimum, it is imperative that you obtain the names of all physicians and/or hospitals who have treated the client. This will enable you to obtain all necessary medical records. (Obviously, you need to get medical authorizations signed by the client during the initial contact.)
B. Find Out About the Alleged Malpractice — After obtaining relevant background information, have the client describe for you as best they can the events which they believe constitute the malpractice. As noted above, clients cannot be expected to be entirely accurate historians when it comes to medical circumstances. Therefore, bear in mind that you are going to need to see the medical records to get a reliable record of the medical facts. Nevertheless, the client’s description at least give you some general direction to pursue, and at the same time it permits the client to vent some of the displeasure they no doubt feel toward the doctor or hospital.
C. Explain What the Law Requires — Many clients cannot differentiate between “bad result” and “bad medicine.” You must explain that the law demands that there be a breach of the standard of care and that the breach be established through expert testimony.
D. Explain the Process of Obtaining an Expert Review — Tell the client that an expert in an appropriate specialty must be retained to review the records and that a charge for the review will be incurred. Also, make sure that the client understands that it may be several months from the time of the initial contact until you have an “answer” for them on whether the case has merit.
E. Conclude the Interview — Remind the client that, despite his or her personal feelings toward the physician or hospital, there is no “malpractice” unless an expert is prepared to say so in writing. The importance of the client understanding this concept is essential to your having a good working relationship with them.
III. GATHERING MEDICAL RECORDS
A. General — The primary medical records include hospital charts, physician office records and radiology films.
B. Legal Entitlement — The patient has a legal right to obtain their medical records, although a reasonable administrative fee may be charged for duplicating those records. 42 Pa. C.S.A. §6155(B), also 28 Pa. Code §115.29.
C. The Portions of the Hospital Chart — Most hospitals divide charts into certain major sections including the following:
- Admitting History and Physical;
- Discharge Summary;
- Operative Reports;
- Progress Notes;
- Physician Orders;
- Nurses’ Notes;
- Radiology; and
There are also some more specialized records kept by certain hospitals depending on the extent of the patient’s illness.
D. Obtaining the Hospital Chart — All hospitals have a Medical Records Department. When presented with an appropriate authorization they will provide you with the requested records. (Note: Some hospitals will require a prepayment of the copying fee prior to sending the records.) You may request a copy of the “entire chart” (which means different things to different hospitals), or you may request only certain portions of the chart, particularly where expense is a concern. Don’t forget that a request for radiology films normally must be directed to the X-Ray Department, not the Medical Records Department.
E. Physician’s Office Chart — This is often an item which counsel forgets to request. The physician’s office chart contains his record of the events of each visit the patient made to his office. It may also include certain portions of a hospital chart (particularly a discharge summary, operative report, consultation) if the doctor has attended to the patient during the hospital admission.
F. X-Rays — In most hospitals x-rays are not maintained in the Medical Records Department, but are kept in an x-ray file room. Therefore, your request for actual x-ray films (as opposed to the written radiology report) must be directed to the x-ray file room or some other such department. Also, it should be noted that most hospitals will not release original films, but will require patients to purchase copies. The cost of copies varies greatly depending on the type of film requested.
G. Organizing the Medical Record — Voluminous hospital charts should be broken down into different tabbed sections such as discharge summary, operative reports, progress notes, nurses’ notes, physician orders, etc. Maintaining the chart in an organized fashion is essential to avoid wasting time and permitting easy retrieval of information. You may also consider numbering the pages of the chart chronologically.
IV. BASIC MEDICAL RESEARCH
A. General — After you have reviewed the medical records, you should be able to define the issues of the case. Prior to consulting an expert, it may be advisable to do some basic medical research on your own. If you do not have medical books available in your office, find out whether there is a medical library in the area, or perhaps rely upon medical-legal tests provided by certain of the legal publishers.
B. Sources of Medical Research — The main sources of medical information include major textbooks, specialty journals, and audio/visual material.
C. Computerized Medical Research — One of the best known medical databases is Medline which can be accessed in hardcopy at a medical library or via the Internet. The Medline database consists primarily of information published in medical journals. It does not reference major medical textbooks. By in-putting certain “key words or phrases,” articles from medical journals on a desired subject can also be retrieved. Also, by in-putting the name of an individual, one can obtain all medical articles authored by that person.
In addition to Medline, you can just search the Internet generally for medical information by using key search terms.
D. The Lawyer’s Medical Library — For any lawyer doing a substantial amount of malpractice work, consideration should be given to acquiring a basic medical library within the office. The focus would be on obtaining at least one major textbook or treatise in each of the generally recognized medical specialties.
V. OBTAINING AN EXPERT REVIEW
A. General — If, after reviewing the medical records and doing some preliminary research, you believe the case merits further investigation, consultation with an expert is the next logical step.
B. What Sort of Expert to Obtain — Generally, you should obtain an expert in the same area of specialization as that practiced by the defendant. There are certain
“cross over” areas in which specialists of more than one type may be competent to pass judgment on a particular medical problem or procedure, e. g., neurosurgeons and orthopedic surgeons in the area of back surgery.
C. Where to Obtain Experts — The most reliable source for obtaining experts is your own personal experience or discussions with other lawyers. This provides a firsthand reference as to the competence and qualification of the witness.
If you have no such first-hand sources, you may have to resort to one of the numerous “expert services” which are available. Typically, these services charge a fee for finding the expert. That fee is over and above the amount the expert charges for his or her services. In addition to the added cost, the other disadvantage of such services is the service is only as good as the individual expert who is obtained for your case.
One final note about expert “services.” Some of them provide a case review under their letterhead, i.e., they do not provide you with a report signed by a physician who would testify in court. Such generic letters are of little value since ultimately you will need a “live body” to support your case. Thus, you are better off avoiding services when you can.
D. What to Look for in an Expert — The personal characteristics to seek in an expert are the following:
- Qualifications — Does the expert have the level of knowledge and expertise necessary to truly be considered “expert” on a particular issue?
- Thoroughness — Will the physician “roll up their sleeves” and go through a lengthy chart and learn the case in detail?
- Analytical — Is the expert able to apply their medical knowledge to the broad legal issues of negligence and causation? In other words, to some extent can the doctor “think like a lawyer?”
- Accessibility — Is the doctor easy to get a hold of when you need to discuss the case with him? Is his response time reasonable?
- Demeanor — Does the expert “look like an expert,” and can he or she “communicate” on direct and “hold up” under cross-examination?
VI. GENERAL CONSIDERATIONS IN SCREENING CASES
A. General — Apart from some of the considerations that go along with particular categories of cases (see Section VII), there are some general considerations that should affect your willingness to pursue a malpractice case. Some of those general considerations are as follows.
B. The Size of the Potential Recovery — It goes without saying that, given the complexity and expense of malpractice cases, one should generally not consider taking such a case unless the damages in the case are substantial. While the definition of “substantial” is relative to the time and expense needed to pursue the case, some have suggested that a malpractice of typical complexity should have a verdict potential approaching $100,000 if it is to be pursued.
C. The Patient’s Underlying Medical Condition — When the alleged malpractice takes place on a patient with serious, long-standing medical problems, caution should be exercised before accepting such a case. Invariably, the alleged “malpractice” becomes inexplicably tied to the underlying disease processes from which the patient suffers. Furthermore, the seriousness of the underlying medical problem often makes causation more difficult.
D. The Novelty or Sophistication of the Medical Issues — If the alleged malpractice involves an emerging area of medicine, one should be less inclined to pursue the case. First, it will make the obtaining of competent experts much more difficult since there probably are only a select few individuals (many of whom no doubt know one another) competent to testify on the case. Second, the jury may sympathize with the medical community in such cases since they are endeavoring to improve the state of medicine generally by pioneering new techniques or procedures.
E. The Personality of the Plaintiff — As in any case, the personality or “likability” of the plaintiff is an important consideration. A bitter, obnoxious, cynical client can doom a potentially meritorious case from the onset. Thus, always “size up” the plaintiff before you can decide to pursue his or her case.
VII. CONSIDERATIONS IN PARTICULAR TYPES OF CASES
A. General — Most medical malpractice cases can be grouped into one of several broad categories including the following:
- Delay in diagnosis,
- Surgical errors,
- Informed consent,
- Improper treatment,
- Drug side effects,
- Nursing errors, and
- Dental cases.
B. Delay in Diagnosis
Pro -Normally there is no dispute but what mistake was made.
Con -Causation is often a problem.
– Tend to be factually complicated.
– Tough to prove if several other physicians also “missed the diagnosis.
C. Surgical Error
Pro -Generally a narrow case factually. -Causation is less likely to be a problem.
Con -“Accepted risk of the procedure” defense. -Success may depend on the cooperation of the subsequent “repair” surgeon.
D. Informed Consent
Pro -Theory is available in most any surgical case.
Con -Case rests on a credibility dispute between the patient and the physician.
-Causation is always a problem — the defense will argue that the lack of “informed consent” made no difference in the patient’s decision to undergo the procedure.
E. Improper Treatment
Pro -Normally a less complicated factual pattern.
Con -“Two schools of thought” defense. -Cooperation of subsequent treating physician may be required.
-Proper treatment may have made no difference in the outcome, i.e., causation problems.
F. Drug Side Effects
Pro -Usually a narrow factual issue. -Generally, causation is less of a problem.
Con -If the target is the doctor, he generally argues that he used only the recommended therapeutic dose.
-If the manufacturer is the target, you may end up “fighting the whole industry,” or the drug company relies on the “earned intermediary” (the prescribing physician) defense.
G. Failure to Monitor – Nurses
Pro -Factually simple. -Less sophisticated defendant.
Con -Sympathetic defendant.
H. Dental Cases
Pro -None obvious.
Con -Medical records are generally poorly maintained and unrevealing. -Contributory negligence is raised as a defense.
The ultimate aim in screening/investigating medical malpractice is to get to “D-day” -decision day — as soon as possible, for it is in the best interest of both you and the client to know early on whether the case is one to be pursued. If you can make such a decision based on an initial telephone call, by all means do so. If research and investigation needs to be done, with or without the assistance of an expert, get the process started in a timely fashion, i.e., gather the records and submit them for the required review.
In the end, the last thing that you want to have happen is to find out several thousand dollars down the road that the suit lacks merit. When that happens, you have a disillusioned client and an upset attorney.