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Medical Malpractice
Don't Rest on Your Rights
If you think you have a case, don't dither - you can lose your right of action by passage of time, called "limitations". Here is an example taken from advice I recently had to give:The original error was almost 7 years ago. Discoverability would not seem to apply - "the doctor even suggested I sue." The kind and extent of injury was known by December 2007, over 2 years ago. There is no reason I can see for the normal two year limitation not to apply, even if it ran from December 2007, you would be out of time. I wish I could give you a more favorable opinion, since it looks like otherwise you had a worthwhile case.
Why Most Medical Malpractice Victims Never Recover a Dime - Part 20
Surviving Your Health Care
You can do many things to prevent becoming a malpractice victim in the first place. Here are some protective measures to think about.
- 1. Volume matters. The more of a particular type of surgery the institution and the surgeon does, the more likely the surgery will have a good outcome. Ask your surgeon how many surgeries he or she does each year, and how many of them are the particular procedure intended for you. If you have doubts, ask for a referral to a surgeon with a high volume practice in your particular surgery. Don't be embarrassed to have this discussion.
- 2. Ask your surgeon whether your hospital is "state of the art" or follows "best practices" for surgical site infection prevention, and hand hygiene compliance. Surgical site infections are a huge problem and 50% of them are preventable. Surgeons who get enough questions like this will put pressure on administration to do better. And your surgeon may pay more attention to protecting you.
- 3. Check RateMDs.com. Most doctors practicing in Newfoundland and Labrador are reviewed by this site. Take the reviews with a grain of salt, because some are from people with an axe to grind, and some are unfair. But this is a useful source of information to look at in your quest for the safe healthcare to which you are entitled.
- 4. If you have an important test, never assume that everything is fine because if not you would have heard from the doctor. Always follow up and confirm the results after a reasonable period. Doctors are very busy and only human. The purpose of a test is to take timely action if it shows a problem. Don't let your test results fall through the cracks.
- 5. If you have a prescription, and you know it's for you and that the drug is the one your doctor intends, take it.
- 6. In the hospital, although the prescription-writing and dispensing functions will take place outside your view, you will see the medication when it's brought to you. Before you take it, ask the nurse what it is and what it's for - even if you think you know.
- 7. When you go to the doctor's office - particularly a specialist who is not your regular physician - or to the hospital, take a list of all of your current medications, including any over-the-counter medications and herbal remedies or dietary supplements that you use regularly.
- 8. During an office visit, most doctors hand you a written prescription when you leave. Check it before you walk out the door. If you can't understand it, the pharmacist might not either.
- 9. Introduce yourself (and reintroduce yourself) to anyone taking care of you during your hospital stay.
- 10. Ask questions politely and persist until they're answered. If you are transported to a different location, ask the nurse if your chart will go with you and make sure your new caregivers are aware of your allergies, medications, and the condition for which you are being treated.
- 11. It helps to have visitors. This not only takes your mind off your illness, at least briefly, but it shows caregivers that other people are aware of your case, are interested in your wellbeing, and are going to check up on you.
- 12. Healthcare providers or anyone administering injections should never reuse a needle or syringe either from one patient to another or to withdraw medicine from a vial. Both needle and syringe are to be thrown away once they have been used. It is not safe just to change the needle and reuse the syringe.
- 13. When nearing discharge or transfer to a new facility, get a list of your current medications, and make sure the caregivers at your new location know about them.
Remember that you are the reason the hospital exists. Your wellbeing is, and should be, everyone's highest concern. But hospitals, frankly, are risky places, and no matter what precautions a patient and their family takes, the medical malpractice monster can strike.
Why Most Medical Malpractice Victims Never Recover a Dime - Part 19
Well, Are There Any Cases Left?
Yes, there are, and that's just the point. We are a small firm and accept a limited number of cases each year. These include not only medical malpractice cases but serious car, truck, and motorcycle accident cases, slip and fall cases, dog bite cases, child injury cases, wrongful death, and cases involving someone else's negligent conduct. Typical injuries of our clients include death, traumatic brain injuries, birth asphyxia and brachial plexus injuries, spinal cord injuries, bone fractures, burn injuries, poisonings, scarring, drowning, neck and back, and psychological injuries. Again, the safe thing is to give us a call or fill out the form on our website and get our initial confidential advice at no charge.
We Concentrate Our Efforts On Increasing the Value of Good Cases-Not on Filing and Chasing Cases Without Proven Merit
We represent many clients with valid claims. When we devote our time and resources to representing only legitimate claimants with good claims, we are able to do our best work - getting "bogged down" in cases which have not been already investigated and proven to have merit, is not good for clients with legitimate claims. It's not good for anyone. We put our efforts into identifying claims for merit and increasing the value of good meritorious claims.
Why Most Medical Malpractice Victims Never Recover a Dime - Part 19
If you are not satisfied with a physician's or hospital's care, you should be aware that you can report what happened to the College of Physicians and Surgeons of Newfoundland and Labrador and if a hospital was involved, to the hospital authority.
It costs nothing to institute a complaint, and they can be lodged by patients themselves or by a person on behalf of the patient (spouse, parent, child, friend, lawyer, physician, etc.). Complaints to the College must be in writing and must include the following information:
- Patient's name
- Patient's mailing address
- Patient's telephone number
- Patient's MCP number
- Physician's full name; and,
- Physician's address.
If you are lodging a complaint on behalf of the patient, then your full name, mailing address and telephone number is required in addition to that of the patient. You will also have to state your relationship to the patient (spouse, etc.). The College also requires consent for the release of the patient's medical information to the College. This consent must be from the patients themselves (or the patient's legal representative).
If the physician has hospital privileges, you can also complain to the Vice President Medical Affairs of the appropriate regional health authority. Contact information for these officials is available at our website, at the hospital website, or by telephoning the hospital.
If you are computer savvy, there is a wealth of information online as to how the complain process works. Just go to http://www.nmb.ca/Complaints.asp.
Helpful Tips:
- Be concise with your complaint. Avoid rambling and including unnecessary or irrelevant information.
- Be professional. Avoid personal attacks or demeaning comments.
- Type your complaint letter if you can.
- Include copies of any medical records if you have them.
Many people we talk to about a potential malpractice case tell us: "I don't want this to happen to anyone else." If you feel this way, you owe it to yourself and the community to make your complaint heard. Perhaps your situation was simply a bad result that no reasonable doctor or hospital could anticipate. Or, you might not be the first person to make a complaint against the doctor or hospital involved, and your complaint may be the one where action is finally taken to make our medical care safer.
Remember: If nobody complains, this will guarantee that nothing will change!
Why Most Medical Malpractice Victims Never Recover a Dime - Part 18
What Cases Do We Not Accept?
Due to the very high volume of calls and referrals from other lawyers that we receive, we have found that the only way to provide personal service is to decline those cases that do not meet our strict acceptance criteria. Our practice focuses on the most serious cases of medical malpractice. Therefore, we generally do not accept the following types of cases:
- § Cases with no clear objective evidence of significant injury which is directly caused by malpractice. These cases are expensive and time- consuming. The last thing you want to do is to "win" your case, only to have the lawyer fees and expenses be larger than your personal recovery. I would like to represent everyone who needs a good lawyer, but we cannot.
- § Cases with significant pre-existing injury in the same body part. If you have had three back surgeries in the past and are now claiming that your most recent surgeon is the cause of your chronic back pain, the chances of a court awarding you a substantial amount of money in your claim is just about zero. Again, I feel that it is not worth the risk to the client to pursue these cases.
- § Cases where the statute of limitations will soon run out. We like to have at least four months to adequately investigate and evaluate your claim. Because of the complexity of these cases and the extensive review process, we require the lead time.
- § If your case has already been filed, we will not represent you except in extraordinary circumstances. We like to do things our way.
Why Most Medical Malpractice Victims Never Recover a Dime - Part 17
Why You Should Hire Us
As I said at the beginning of this book, "we are different." We evaluate your case before we accept it. We can't guarantee a successful result, but our long track record does show that if your case passes our test, the likelihood of settlement is very high. And, we have long been leaders in the provision of useful information to the consumer - like this book. This helps you to decide whether you need a lawyer, and whether you need a lawyer like us.
There are many lawyers who advertise for personal injury cases. Luckily, most of these lawyers know they are not medical malpractice lawyers and know it is dangerous to "dabble" in medical malpractice work. There are good experienced lawyers in this field, but it is very difficult for a consumer to separate the good from the bad. You need to ask your lawyer all of these questions.
Our clients get personal attention because we are very selective in the cases that we take. We decline many cases each year in order to devote personal, careful attention to those that we accept. And, we don't get paid unless we win.
The bottom line: if we accept your case, we will fight to get you the compensation that is right for you and your case, and we will ensure that you are treated with respect while this is happening.
Why Most Medical Malpractice Victims Never Recover a Dime - Part 16
The Legal Process in Medical Malpractice Cases
In a medical malpractice case, we will almost always file your suit before negotiating so that if negotiations break down, we will already have a trial date in place to head towards. In an automobile case, our approach depends on our experience of the attitude and previous behaviour of the insurance company. We apply our long history of negotiating claims to your benefit in every case.
I believe that it is a dangerous practice to wait until the statute of limitations has almost expired to file suit. I have seen other lawyers do this only to find that the defendant they sued is either not the correct defendant or is now blaming someone else.
While there are legitimate reasons for delaying filing suit, there is no excuse for the practice that I sometimes see whereby some lawyers routinely wait until the last moment to see if the insurance company will settle your case. When the claims do not settle, they often panic to file the case on time.
In Newfoundland and Labrador, a medical malpractice case is begun by filing a lawsuit in the Supreme Court. Once the lawsuit is filed, both sides engage in the legal process called discovery. Each party is allowed to investigate what it is the other side is going to say at trial. The defendant will be permitted access to your medical and work history, including your income records. You may have to give oral discovery under oath and you may be required to submit to a medical examination by a physician of the defendant's choosing. The defendant is also subject to discovery. He or she will answer written and oral questions about their own background and will have to give sworn testimony about the incident at issue.
In Newfoundland and Labrador you can expect to go to trial about one year after the case is placed on the "trial list". However, much must be done to be ready for trial and national statistics show an average of five years for a case to resolve, and seven years in a complex case is not unusual.
Patient Wins Stroke Case: Failure to Inform
A chiropractic patient recently won a difficult case against a local doctor alleging neck manipulation caused her stroke. The case was tried in St. John's.
In Gallant v. Brake-Patten the patient won on the point that she was not advised by the doctor of the risk of stroke. She also satisfied the judge that she would not have undergone the procedure if properly advised. And very importantly, she convinced the court that she would not have suffered the stroke, but for the chiropractic procedure.
The plaintiff was ably represented by Lois Skanes of Roebothan McKay Marshall.
Teaching point: cases are infrequently won on the ground of absence of informed consent. But on the right facts, informed consent cases are winnable. Damages are to be assessed later, or agreed.
Bloopers of the Year: Defendant Doctor Pleads Cancer Patients Entitled to Second Class Care
In a decision this year, also reported at the News feature of this site, a trial judge was confronted with the outrageous defence that patients in Newfoundland are entitled to a lower standard of care than elsewhere.
General practitioner Peter J. Cleary missed a diagnosis of mouth cancer over a nine month period, resulting in extensive commando surgery to effect a cure. To get himself off the hook, the doctor and his powerful defence organization, the Canadian Medical Protective Association, told the judge that the injured cancer patient's expert from Indiana, U.S.A., was expecting too high a quality of care for diagnosing cancer in Newfoundland and Labrador.
The trial judge rejected the doctor's argument for second class care, finding that "examination of oral lesions is basic medicine in the western world no matter where one was trained or practised." To accept the defence evidence "would be endorsing a different, and in this case lower, standard of patient care" for Newfoundland: para. 99.
This is the theme I've heard throughout the Breast Cancer Testing Class Action: Newfoundland cancer patients should not expect high quality care, and a certain rate of error is acceptable. But as Dr. Brendan Mullen from Mount Sinai put it at the Cameron Inquiry hearings, an error is a 100% rate of error for the patient involved. For doctors to justify their errors by telling patients they should expect only second class care is an outrage.
Surgery: Making a List, Checking it Twice...
Performing surgery on the wrong site is, in my view, per se negligent and something that just should not happen. Wrong site surgery is easily avoided by following simple checklists: identify the patient; ask the patient to identify the intended site of surgery; mark the site; correlate the patient's anatomy with the imaging studies; correlate the site of surgery which what is planned as documented in the medical chart. But believe it or not, there are still times when these simple precautions are not followed and a surgical blunder occurs.
You would think that the victim of wrong site surgery could settle the case without a lawyer (assuming he or she knew the law on quantifying the money damages arising, which might be a stretch...). Well think again! Noted Virginia malpractice lawyer Ben Glass is representing a patient who tried to do just that - settle her own case - by making a very reasonable offer. Ben's client was met with a blunt denial.
Ben will give this client access to justice though the device of the contingent fee, and I don't doubt that after taking fees and expenses into account, the client will do much better in her settlement or award than as a "do it yourselfer", but the same unreasonable medical malpractice insurers are busy lobbying in the U.S. Senate to pass a law limiting fees that injured patients pay to their lawyers. (Luckily, a fee cap proposal was defeated in the Senate last week.) No mention is ever made of limiting fees paid to defence lawyers. With enough one-sided changes to the rules, insurance companies may eventually get away with denying recovery even for wrong site surgery - negligence per se!
Why Most Medical Malpractice Victims Never Recover a Dime - Part 15
What Do We Do For You in a Medical Malpractice Case?
Here is a more or less complete list of the tasks we may be called to do in your case. Remember that each case is different, and that not all of these tasks will be required in every case.
- Interview the client
- Educate you about medical malpractice claims
- Gather documentary evidence including medical records and hospital documents
- Interview known witnesses
- Collect other evidence, such as photographs of the injury itself
- Analyze the legal issues, such as contributory negligence and assumption of the risk
- Talk to your physicians or obtain written reports from them to fully understand the client's condition
- Analyze your health insurance policy or welfare benefit plan to ascertain whether any money they spent to pay your bills must be repaid. (Unbelievable as it may sound, your health insurance company may be entitled to full reimbursement of the money it paid on your behalf.)
- Analyze the validity of any liens on the case. Insurance companies, group benefit plans and employers may each assert that they are entitled to all or part of your recovery
- Obtain relevant medical literature to help determine whether malpractice was involved in your injury
- Recommend whether an attempt should be made to negotiate the case with the insurance company or whether suit shall be filed. (However, you should know that it is the rare malpractice case that can be successfully negotiated before filing suit.)
- Obtain nursing and expert review of your claim
- If suit is filed, prepare the client, witnesses and healthcare providers for depositions
- Prepare written questions and answers and take the deposition, under oath, of the defendant and other witnesses
- Produce to the defendant all of the pertinent data for the claim, such as medical bills, medical records, and tax returns
- Go to court to set a trial date
- Prepare for trial and/or settlement before trial
- Prepare the client and witnesses for trial
- Organize the preparation of medical exhibits for trial
- Organize the preparation of demonstrative exhibits for trial
- Prepare for mediation and/or settlement conference with a judge
- File briefs and motions with the court to eliminate surprises at trial
- Take the case to trial
- Analyze the judgment to determine if either side has good grounds to appeal the case
- Make recommendations to the client as to whether or not to appeal the case[1]
[1] Our contract with you does not obligate us to participate in any appeal.
Why Most Medical Malpractice Victims Never Recover a Dime - Part 14
"It's so frustrating" - and how to find a lawyer on the Internet
Being a malpractice victim and looking for a malpractice lawyer in Newfoundland and Labrador - it's so frustrating! It's frustrating because there are so few sources of reliable information out there to help consumers find the right lawyer. Consumer frustration at trying to find good reliable information is the reason I wrote this book.
Nowadays, consumers often don't stop their research at the Yellow Pages or by asking a friend. They "Google" the internet. And when consumers do that, they get frustrated all over again.
Because when you put in a search term like "Newfoundland and Labrador Injury Lawyer" you get lots of lawyer referral sites that are spending millions of dollars to get good search engine placement, you get lots of random law firm sites that don't even have an office in our province, but you don't get search results that return websites of local law firms with good reliable information on personal injury issues. What you need is information that can really help you make what may be one of the most important decisions in your life - choosing a malpractice lawyer to help you with an injury claim that could affect the rest of your life.
The frustration caused by lack of good information is why I totally revamped our website. Our aim is to provide injured consumers with an easy to locate web resource to help them to answer the questions that keep them up at night. How do I find the right lawyer for my case? Should I talk to the doctor or hospital about what I think was malpractice or sign any papers? Am I making a terrible mistake by not contacting an experienced malpractice lawyer?
With the valuable free information you can get from this book and my website, I aim to put the consumer on an even playing field with the doctors, hospitals, and insurance companies. Armed with this information, if you think you need a lawyer, the next step of hiring a lawyer is up to you. I've given you the tools to make the right choice.
The internet has emerged as an indispensible tool in the injured consumer's quest to find a great lawyer. But to get the most value from this revolutionary tool, consumers need to know how to recognize sites that are likely to lead them to a great lawyer who is perfect for their case. Many sites are not what they appear to be.
Search engines such as Google use organic search terms. So a search term such as "Newfoundland injury lawyer" yields many pages of hits. If you're like me, you don't have time to view more than the first two or three pages. Among those pages you will see two basic categories of lawyer finder websites. They are "directory sites" and "referral sites", which are explained further on my website. A point about these sites is that they guarantee nothing about the qualifications of the lawyers to whom the consumer is directed or referred, and tell the consumer little about them except that these lawyers want the consumer's business.
The other type of website is a site put up and maintained by an individual law firm. Your search for "Newfoundland injury lawyer" will probably return only 2 or 3 hits for law firms with offices in Newfoundland and Labrador which claim to be experienced in injury law. A good test to use for judging law firm sites is: Does this website provide me with good useful information about my type of problem? If a law firm provides information about your problem in a useful and interesting way, instead of just talking about how great the law firm and its lawyers are, then this is a good indicator that you may be on the way to finding a great lawyer who is the right lawyer for your case.
Why Most Medical Malpractice Victims Never Recover a Dime - Part 13
12. Here are factors and good points to look for and question your lawyer about. Note that not every lawyer will meet all of these criteria, but the significant absence of the following should be a big question mark.
- Experience - obviously, the longer you have been practicing a particular area of the law, the more you will know. Experience is a big factor in most cases.
- Experience actually trying cases - the greater your number of cases actually tried and substantial awards and settlements achieved, the more likely the insurance companies will respect you. Past results are not a guarantee of the future but past results do demonstrate some level of experience and success. All the same, the experience most people value is the experience to get a good outcome without going to trial! We have many satisfied clients whose cases have settled and very few whose cases have gone to trial.
- Ethical record - does the lawyer have a good record of discipline by the Law Society for ethical violations? What violations?
- Respect in the legal community - does the lawyer teach other lawyers in Continuing Legal Education courses?
- Respect in the courts - have the courts commented on the lawyer either favorably or unfavorably? Has he or she been in litigation with former clients or in fee disputes?
- Membership in Best Lawyers in Canada - a compilation of the Best Lawyers in Canada, as selected by peers. This can be checked on the web at BestLawyers.com.
- Membership in Lexpert - another peer review publication, searchable at Lexpert.ca. Membership in Lexpert and Best Lawyers in Canada cannot be bought, and is an indicator of respect on the part of other lawyers.
- Membership in trial lawyer associations - in our area, you can certainly find a lawyer who is a member of the Atlantic Provinces Trial Lawyers Association (APTLA), and the trail-blazing American Association for Justice (AAJ). Some dedicated lawyers are also members of other provincial bodies, such as the Ontario Trial Lawyers Association (OTLA). All three of these organizations provide extensive education and networking for trial lawyers.
- Serious involvement in trial lawyer associations - whether your lawyer is or has been involved in the leadership of trial lawyer organizations, for example as a member of the Board or as a President, is another indicator that the lawyer is dedicated to excellence in representing injured people.
- Honors and Awards - appointments such as Queen's Counsel (Q.C.) and other awards can be recognition of merit by other lawyers and the community.
- Appointments such as Master of the Supreme Court - this appointment is made by the Chief Justice and carries the confidence of the profession and the judges that the Master is competent to make binding judgments on such matters as the fees a client must pay to his or her lawyer. Such monetary amounts can be large. This is an appointment to an office with legal powers and indicates recognition of merit not only by the organized legal profession but by the Chief Justice as well.
- Scholarly Publications - has your lawyer written anything that has been accepted for publication in legal journals? This is another sign of respect that the legal community has for his or her skills and experience.
- Consumer Publications - has your lawyer published anything aimed at providing useful information to the consumer - like this book? A lawyer who wants the public to be well informed about their rights probably works hard on his or her cases and treats clients with the respect they deserve.
- Referral Base - do the lawyer's clients come from relentless advertising or from referrals? Most of our clients are either referred to us or by other clients or other lawyers, or are former satisfied clients.
- Independent Journalistic Reviews - how have journalists and the media treated your lawyer? Lawyers often take on unpopular causes, so you have to allow for this. The question is whether he or she is perceived by reputable journalists as being ethical and effective. The Evening Telegram published a front page article on me called "A Real Class Act" - read the article and other resources on my website ChesCrosbie.com and make up your own mind.
- Maintaining a Consumer Oriented Website - does the lawyer make the effort to maintain a website that answers the questions that are keeping you up at night? Does it talk only about how great the firm or the lawyer is, or does it provide useful resources that empower the consumer? Our website ChesCrosbie.com is consistently on page one of Google, so judge for yourself. But finding a great lawyer on the internet can be tricky - and frustrating - unless you know how to recognize the different types of sites. Read on.
Why Most Medical Malpractice Victims Never Recover a Dime - Part 12
How Do You Find Out Who Is Good In Your Area?
Here Are Some Tips
- 1. First, while your lawyer should be licensed in Newfoundland and Labrador, do not limit your search geographically. There are a small handful of lawyers in Newfoundland and Labrador who specialize in malpractice cases. Find the best lawyer in Newfoundland and Labrador for your case and don't concern yourself with geography. Our firm handles cases throughout Newfoundland and Labrador. Our size and small case load allows us to deliver terrific service whether you are in St. John's, Corner Brook, or Goose Bay.
- 2. Look on www.BestLawyers.com or www.Lexpert.ca. These sites contain the names of lawyers who are peer-reviewed - ranked highly by other lawyers - in various specialties.
- 3. Get a referral from a lawyer that you know. He or she may know someone who does specialize in your area of need. If you don't know anyone at all, do a Google search under terms like "Newfoundland Injury Lawyer" or "Newfoundland Accident Lawyer". Or "Newfoundland and Labrador Malpractice Lawyer" etc., if you prefer.
- 4. The Yellow Pages can actually be a good source of names. Understand three things, however: First, not everyone advertises in the Yellow Pages. Most of our cases come from referrals from other lawyers or from satisfied clients. Second, be careful about the ads that tout too many different specialties, no one can do everything well. Third, be careful about the double page ads. This advertising typically attracts a lot of cases, including the small cases that we do not accept. Make sure that the lawyer you hire is selective enough with his or her cases that your important case does not become just one more file in the pile, buried under the "weight" of Yellow Page ads. Fourth, ask yourself how much useful information do the ads actually contain. If they just say "Free consultation" and "No fee until you collect", they are not telling you anything new. Go for the law firm that gives you useful information and respects your intelligence.
- 5. The Law Society has a lawyer referral service. Understand that lawyers have signed up and paid a fee to be listed in certain specialties. Their names come up on a rotating basis. This is another good source for an initial appointment. Just take the questions we talk about here to that interview.
- 6. Ask each lawyer if they have information just like this book and/or a website so that you can find out more about qualifications, experience, and method of handling a case before you walk in the door.
- 7. Be careful about any lawyer who rushes you to sign a contingent fee agreement. A contingent fee is not the right fee for every type of personal injury case. You have the right to take the agreement home, read it and understand it.
- 8. Beware of any lawyer who contacts you in writing just after you have had an accident for the sole purpose of soliciting your claim. If you are contacted "cold" it should be for the sole purpose of providing free information to you that you can study in your own home on your own time.
- 9. Beware of a lawyer who has a stable of doctors he wants to refer you to. A pattern of referrals from the same lawyer to the same doctors is perceived negatively by insurance companies and judges, and can actually be the "kiss of death" to your claim.
- 10. Interview several lawyers. Ask each lawyer who else he would recommend for your case. If they won't give you any names, leave. Ask this question of each lawyer. The names you see showing up on different people's lists are probably good bets.
- 11. Forget fancy slogans and hype. Slogans like "we are aggressive," "we care for you", "we fight for you", are absolutely meaningless. After all, aren't these the things that you would expect from your lawyer?
Malpractice Damages Clear $1 Million
A damages assessment released in July by the Supreme Court of Newfoundland and Labrador, Trial Division, enjoys the rare distinction of exceeding the $1 million level. The plaintiff in Courtney v. Cleary sued his family doctor for unreasonably delaying a diagnosis of throat cancer. The injuries suffered by the plaintiff, involving “commando” surgery and long-term disability, were far more significant than they needed to be with timely diagnosis and treatment.
A recent edition of Brown’s Economic Damages Newsletter has calculated the damages awarded, with pre-judgment interest but excluding the general non-pecuniary damages award, as $920,939. The non-pecuniary damages award for pain and suffering and loss of amenities was $165,000, and this would attract interest also. The total would be in the area of $1.1 million.
The newsletter contains a careful analysis of the economic part of the decision and those interested can find out more by clicking the link above. The only other decision in a personal injury case awarding more than $1 million in damages was the one I achieved in the Williams case, overturned by our Court of Appeal. The Court of Appeal overturned us unfairly on an issue which was neither pleaded nor argued on appeal. I was unable to obtain leave to appeal to the Supreme Court of Canada, which is given in only about 1 in 10 civil cases.
Should the Courtney decision be appealed I wish Mr. Courtney and his lawyer the best of luck, because in this province no matter how good the plaintiff’s case and no matter how well reasoned the trial judge’s decision, an appealed plaintiff should never refuse luck or prayer.
Why Most Medical Malpractice Victims Never Recover a Dime - Part 11
How Do You Choose?How do you find out which lawyer is the best in Newfoundland and Labrador for your case? Do you want less than the best? I believe that there are certain questions to ask that will lead you to the best lawyer for your medical malpractice case. It will involve some time on your part, but that's a fair price to pay.
The world of medical malpractice claims is much too specialized for someone who does not regularly handle these cases. Too many times we have looked at cases that other - inexperienced - lawyers have handled. You should be aware that the insurance company that defends malpractice cases knows which lawyers in Newfoundland and Labrador actually go into court to try cases and which do not. The insurance company uses that information to evaluate their risk. One of the first questions they ask when a serious claim comes in is: Who is representing the plaintiff? Since this information is important to the insurance company, it should be important to you.
Why Most Medical Malpractice Victims Never Recover a Dime - Part 10
How Do I Find a Qualified Medical Malpractice Lawyer?Choosing a lawyer to represent you is obviously an important task. It is probably the critical task that determines the success of your case. The decision certainly should not be made on the basis of advertising alone. The Yellow Pages are filled with ads - all of which say basically the same thing. You should not hire based solely on advertising. Anyone can buy a slick commercial, even if they have never successfully tried a malpractice case in front of a court. Heck, you shouldn't even hire me until you trust that I can do a good job for you.
You also cannot rely on the recommendations of friends and family. The fact that Lawyer Jones did a good job on Uncle Joe's breathalyzer case or Cousin Sue's divorce - or even on your best friend's auto accident claim - does not make him or her a qualified, experienced medical malpractice lawyer. Malpractice work is a legal subspecialty of its own. Most lawyers in our province actually have the good sense to recognize this and not attempt to do malpractice work themselves. But they may not know who does malpractice work well either, so as to refer you to those lawyers who do the work well.
Why Most Medical Malpractice Victims Never Recover a Dime - Part 9
Beware of the Subrogation "Monster"You should be aware that often, if your bills were paid by the health insurance of an employer's health plan or your loss of income was paid by a disability insurance plan, the insurance company or plan may want you to reimburse it out of any personal injury recovery. Your "insurance" turns out to be not insurance at all, but a "loan." What the insurance companies don't tell you is that this area of law, known as "reimbursement" or "subrogation," is actually quite complicated and the law frequently goes against what they are claiming. We have frequently been successfully in substantially reducing these "subrogation" claims.
In this book I refer to "the insurance company", but it is important to understand that over 95% of doctors are "insured" by a mutual defence organization, the Canadian Medical Protective Association, or CMPA. This is important because the mandate of this large and powerful organization is to defend its doctor members, not to settle legitimate claims. CMPA has enormous resources and a war chest of two billion dollars, which it uses to fight the more than 100 trials it defends each year in Canada - and it wins at trial 80% of the time.
The master skill of the best plaintiff malpractice lawyers lies in identifying the cases which have potential to be turned into winners. The master skill of the CMPA and their very smart defence lawyers lies in recognizing which cases they are likely to lose at trial, and should therefore settle.
Why Most Medical Malpractice Victims Never Recover a Dime - Part 8
The Reasons Most Malpractice Victims Receive NothingThe number of suits has not increased since the mid 90's, and in most cases, plaintiffs receive nothing. There are a variety of reasons why patients do not recover any compensation for injuries suffered while receiving medical care. Most of these issues stem from general misconceptions about medical malpractice. It is important for potential malpractice plaintiffs to understand these issues while seeking counsel to represent their case.
1. Patients don't know they are victims of medical malpractice. Studies show that roughly 7% of admitted hospital patients suffer some sort of preventable injury as a result of medical management (i.e., not from the original medical condition). Many patients are killed each year as a result of preventable medical error. Medical malpractice is the eighth leading cause of death, yet only 1400 cases are filed each year, and most do not involve wrongful death. In the vast majority of cases the fact that malpractice occurred is hidden from the patient and the patient's family. The whole country received an insight into this in 2008 as the scandal of Eastern Health's botched breast cancer testing and cover up attempts was revealed in the media day after day.
2. No autopsy was ever performed. In a situation where we claim that the malpractice caused death, we must prove that the carelessness of the health care provider directly resulted in the patient's death. In a medical malpractice case that results in death, it is difficult to prove that the death occurred because of the malpractice without an autopsy. This is because there are many reasons why a person might have died, but we must prove that the one substantial reason why they died is because of the negligence of the health care provider.
3. Even though the doctor committed malpractice, the disease or illness likely would have resulted in death anyway. Sometimes cancer or other deadly illnesses may go undiagnosed for months or even years. A late diagnosis of cancer does not always mean, however, that the doctor is responsible for the patient's death. An experienced malpractice lawyer can help determine whether the cancer or other serious illness should have been detected "in time" to save the patient.
4. A physician's poor bedside manner does not constitute negligence. In the vast majority of cases, even terribly poor bedside manner cannot be considered in determining whether a physician committed malpractice in providing treatment. We have reviewed many cases where arrogant physicians provided care and the patient was injured. It just doesn't matter that the doctor was a jerk. We must prove, from a scientific and legal standpoint, that it was carelessness, not bad bedside manner, that caused the injury.
5. The patient suffered no significant damages. While we understand that every case is an important case to the patient, the legal system is not set up to handle "small" medical malpractice cases. We decline many cases each year where it appears that the doctor was careless, but the resulting injury is not significant. A pharmacist may incorrectly fill the prescription, for example. That error may make you violently ill for a week. If you have a good recovery, however, you probably don't have a case to pursue. This is because the costs of pursuing the case will be greater than the expected recovery. Our court system may not be perfect, but it does act as a filter to keep out all but the most serious cases of medical malpractice.
6. The injury suffered was not necessarily caused by the physician's or hospital's mismanagement. As discussed earlier, it is often very difficult to prove that medical mismanagement was the reason the patient suffered the injury that he or she did suffer. The insurance companies have many standard defenses including, for example, that (1) the injury was an unpreventable result of the initial condition/injury (e.g. "If the tumor had been diagnosed six months earlier, it would not have made a difference."); (2) the injury was due to the patient's noncompliance with medical advice (e.g. "I told him to return to the office if his symptoms did not clear up, but he didn't."); (3) the risk of the patient's particular injury was an acceptable one (e.g. "He got infected in surgery but 2% of all patients undergoing that surgery get an infection."); (4) some other party was responsible for causing the injury, or (5) the injury was caused by a previous illness or disease. Many, many cases have good proof of negligence but are unwinnable because they have no good proof of causation. Medical malpractice plaintiffs must show a very clear connection between the defendant's misconduct and the claimed injury.
7. The plaintiff has not retained an experienced lawyer. Medical malpractice litigation is a world unto its own. It has its own special rules and laws. There are very few lawyers in Newfoundland and Labrador who specialize in medical malpractice claims. We believe that it is imperative that you be represented by an experienced medical malpractice lawyer or a lawyer who is "teaming up with" or co-counsel with an experienced malpractice lawyer. The malpractice insurance company and the doctors' lawyers know who the "real" plaintiffs' (patients') malpractice lawyers are. They know who has the experience, skill and resources to battle them in court and who doesn't. The insurance lawyers billing by the hour will string out the inexperienced, poorly prepared lawyers for as long as they can before beating their brains out in court. In malpractice cases, perhaps more than in any other type of case, experience and prior results do matter.
Do not be afraid to check out the experience and the results of your medical malpractice lawyer. It's your responsibility to ask. If you end up in inexperienced hands, it's your fault!
8. The statute of limitations has expired. Each province has its own statute of limitations for filing a medical malpractice suit. These are strict time limits! If the statute of limitations has expired, you can't file a case. The Newfoundland and Labrador Statute of Limitations is two years. The important question is "Two years from when?" Newfoundland and Labrador has something called the "continuing treatment rule," so your actual time to sue may be longer than two years from the specific date of the negligence, if the defendant continues to treat you. The "continuing treatment rule" can be tricky and should not be left to novices or other inexperienced lawyers. Even more tricky is the "discoverability" rule, which says that time does not begin to run until the plaintiff knew or ought to have known that they were the victim of malpractice. One reason that you should consult an experienced medical malpractice lawyer early is to determine when the statute of limitations expires in your case. You may not need to hire a lawyer now, but you should get a lawyer's advice now as to when your statute of limitations expires!
9. The Plaintiff is Unable to Hire Good, Qualified Experts. You cannot win most medical malpractice cases without one or more very qualified medical experts. They can be hard to find. It is difficult to find doctors who are willing to stand up for what is right. It takes time and money to find the best experts for your case. This is one area where the insurance companies have a tremendous advantage. If they have a case that is particularly bad for their doctor, they may show the case to many experts before they find one to support (or simply concoct) the defense. They can afford to hire that many experts. Most patients cannot afford to have 10 experts look at their case in order to determine which expert will work "best" for them.
10. The Patient Contributed to the Injury. Any carelessness on the part of the patient is weighed together with the carelessness of the doctor and damages are apportioned accordingly. This defence seldom works with a trial judge but is vigorously pursued nonetheless, contributing to the many good claims that plaintiffs are demoralized into dropping before they complete the obstacle course to success.
why Most Medical Malpractice Victims Never Recover a Dime - Part 7
Limit on Recovery for Pain and Suffering
The law imposes a limit to recovery of pain and suffering damages. No matter how seriously injured you are, the maximum recovery you can obtain is currently $330,000. This amount for pain and suffering might be awarded in such cases as catastrophic complete paralysis or severe brain damage. This limit or cap has been set by the Supreme Court of Canada and is constantly adjusted for the effects of inflation. The vast majority of awards for pain and suffering are well below this cap.
The types of cases which have large enough settlement value to justify investigation for merit and with which we have been successful include:
• birth injuries causing cerebral palsy
• delay in treating bacterial meningitis
• spinal cord or brain damage resulting in quadriplegia, paraplegia or other paralysis
• surgery resulting in serious damage to nearby structures or organs
• undiagnosed heart attacks
• other failures to diagnose serious conditions where timely intervention would have avoided a bad outcome
• pathology negligence, including cancer misdiagnosis
• wrongful death, where there is significant financial loss to surviving dependents (remember, the wrongful death laws in this province are backward and allow no damages for pain and suffering)
Why Most Medical Malpractice Victims Never Recover a Dime - Part 6
How Do I Decide What Cases to Take?The answer is that I have some rules. They're not perfect. I get many more medical malpractice inquiries from injured patients and their families than I accept as cases. Here's how I decide which cases to accept.
First, I have rules about what I don't do. I don't:
• talk to potential clients calling for the first time
• take unplanned inbound calls (unless in active negotiations on a case)
• give free consultation; we either reject the case or the client signs up.
I have to make decisions about where my time is invested and I think my time is best invested at certain critical points over the life of a case. These are the high value points that are the reason people call me.
Our office assistants do a complete "who, what, when, why and how" report. I review this and ask: does this sound like a case that I could tell you about in a social setting and expect you to say "that's awful, it shouldn't have happened"? The point here is that the more complicated the case, the more likely the defendant is to win.
The most common reason I will reject a case is that it doesn't have enough value. Case value on settlement must be at least $100,000, and permanent injury and disability is required to achieve this value.
Some of the other reasons I may reject a case are:
• a multi-specialty, multi-expert case
• a wrongful death case with no autopsy
• a wrongful death case with no significant financial dependents left behind
• the presenting injury before the doctor got involved is a complex and large injury itself.
If the medical malpractice inquiry passes this screen, then I will either have the client obtain the medical records or send in a deposit and signed consents to enable my office to obtain them. When I have the records, I will meet with the client.
Some cases fall away when I compare the client's story with what the records say. If not, the next step is to submit the records to an expert.
There are several options here. The initial reviewer could be a screening expert who is not in the same specialty as the questioned doctor or could be an expert in the same specialty (a "peer"), who may also be asked be asked to testify. It depends. Sometimes a nurse consultant is the right screening expert.
I will usually ask the expert reviewer for a telephone consultation before their opinion is committed to writing. If the case is robust on negligence, causation of the injuries, and the dollar value potential of the injuries (damages), then I will agree in writing on fee and case expense arrangements with the client, and issue a Statement of Claim in court. I often will not obtain a written report from an expert whom we intend will testify before doing this. The known facts of the case will change with the examination for discovery of the defendant, and the expert report is more useful when our testifying expert knows the defendant's version of the story.
As to discovery examinations, my own experience is that we win the case on discovery. Medical malpractice defendants don't want to go to trial if they are likely to lose, and discovery is where the savvy lawyer for an injured patient shows the defence lawyer and the defence experts that they are likely to lose. You can't expect them to figure this out for themselves. Your lawyer must be able to establish, on the typewritten record of the discovery examinations, through skillful cross-examination, enough admissions inculpating the defendant doctor that the very tough and knowledgeable lawyers and defence organizations massed against the plaintiff will decide the defendant doctor is likely to lose.
So I have rules about what cases I take and sure, I may pass over some good cases. But rules simplify life and there are more people out there who want my help than I have time to help. I'm not the right lawyer for everyone, but when the right client finds me, it usually results in a satisfied client and a lawyer proud to have helped.
Why Most Medical Malpractice Victims Never Recover a Dime - Part 5
How Do You Know You Really Have a Case?In order to determine whether you have a case, we must first gather all of the pertinent medical records involved in your care. We also must have a complete, honest statement of facts from you - please don't hide anything from your lawyer.
Once all of the records are received and reviewed and you have been interviewed, we will tell you if it looks as though there is a provable case of medical malpractice. If the case looks meritorious, experts in the appropriate specialty must be consulted and retained by us. Again, these experts must be of the opinion that the medical care received was substandard and that the substandard care caused major injury or death. We all want optimal care, but an opinion that care was suboptimal is not enough. The care must be substandard. There must be a clear causal connection between the substandard care and the injury. And the opinion on substandard care, as with the opinion on causation of the injury, must be robust, not wishy-washy.
Once we have retained experts who are prepared to testify on your behalf, other records, including employment records and tax returns, must be obtained. These will aid us in proving the damages which have been suffered due to the malpractice. Your financial and unemployment records must be full, complete and credible in order for us to include in your claim that you have suffered financial damages as a result of malpractice.
At this point, you may want to know in more detail how I personally decide what medical malpractice cases to take.
Why Most Medical Malpractice Victims Never Recover a Dime - Part 4
In 2008, Medicare funded by the United States stopped paying hospitals for several conditions and infections acquired after a patient is admitted. Under this policy, the costs can’t be passed on to the patient.
The idea is to make doctors and hospitals more responsible. It is felt that many problems are preventable and shouldn’t be occurring in the first place if proper procedures are being followed. The list of what isn’t covered includes:
• pressure ulcers,
• objects left in the patient following surgery,
• air embolism,
• catheter-associated infections,
• surgical site infections, and
• falls and trauma.
This has caused quite a stir among hospitals and doctors in the United States. U.S. Medicare expects to save millions of dollars and force changes that could save thousands of lives. Canada should find ways to follow suit.
Why Most Medical Malpractice Victims Never Recover a Dime - Part 3
What is a Medical Malpractice Case?You may have a medical malpractice case if you are injured as a result of negligent care while receiving medical treatment. The landmark Harvard Medical Practice Study done in 1999 revealed that over half of all injuries caused by medical management (i.e., those not caused by the patient’s initial illness or injury) were preventable, and a quarter of those injuries were caused by negligence. One-fifth of medical management errors occur outside of the hospital and inside a doctor’s office.
What Must be Proven to Win a Case?
Medical malpractice cases are among the most difficult a lawyer will ever handle. A medical malpractice case requires the patient, the “plaintiff,” to prove that his or her doctor or hospital, the “defendant,” deviated so far from what is accepted as “standard” diagnosis and treatment that the law considers the defendant to have been “negligent.” The plaintiff is also required to prove that the doctor's negligence was a substantial cause of the injury that the plaintiff has. “Negligence” and “breach of standard of care” mean the same thing: conduct which is not reasonable in all the circumstances.
Because of the tremendous hurdles to obtaining a recovery in a medical malpractice case, experienced malpractice lawyers agree that the injury suffered by the plaintiff must be significant. The court system is simply not set up to handle “small” medical malpractice cases. We believe that the settlement value must exceed $100,000, meaning you must have suffered a significant and permanent injury to warrant the expense and risk of prosecuting a malpractice case.
Your case must be proven by expert testimony. That is, other doctors in the same specialty as the negligent doctor must be willing to say that the conduct of the defendant fell below accepted standards. Simply making a mistake or getting a bad result is not enough – we must prove that it was a really major error which directly led to your injury. Yes, it’s true. Doctors often “get away with” malpractice because the injury they have caused is not severe. I can’t do anything about that.
Remember, too, that just because serious injury or even death resulted from a doctor’s care, this does not mean that malpractice occurred. People get sick and die each day from reasons other than malpractice.
Because the stakes are so high, I believe some statistics about Canadian medical malpractice lawsuits are worth considering. 95% of plaintiff successes are settlements, not judgments. Many of those settlements occur on the courtroom steps. Disbursements for effective prosecution of a medical malpractice action are measured in tens of thousands of dollars, with an average of $100,000 per trial.
New Canadian medical malpractice claim filings run at about 1400 per year. This represents one per fifty doctors. Settlements occur at 30% as a proportion of new actions. By contrast, the probability of success at trial is only 20%.
According to the landmark Harvard study, only about 2% of medically negligent occurrences are litigated. Canadian studies agree that less than 10% of those suffering avoidable injury in the healthcare system are compensated. In many cases, the patient does not know of the malpractice! By contrast, more than 19 out of 20 medical malpractice enquires are ill-founded or have a fatal flaw.
The chances of successful judgment after trial are very low, and the costs very high. Therefore, the first focus must be on establishing whether the action has sufficient promise to persuade the defence organization to make an offer of settlement. For promising cases, the value of that offer can be maximized by robust expert written opinion.
Why Most Medical Malpractice Victims Never Recover a Dime - Part 2
Why Did I Write This Book?Simple.
I am sick and tired of healthcare industry stonewalling, spin doctoring, and cover up. If you or a loved one have been the victim of medical malpractice, what you need is useful information that you can trust. Try to deal with the doctor, hospital or insurance company yourself and they will just stonewall you.
I wrote this one-of-a-kind book so that you could have good, honest, useful information to review and study in the comfort of your own home.
No Hype.
No pressure.
Frankly, this book also saves me time. My office gets calls each day from people asking me to represent them in their medical malpractice claims. I’ve packed a ton of information into this book and it saves me much time each day by not having to talk to all of the potential clients who call me. I can’t accept every case. If I gave a “free consultation” for each new potential case, there simply would not be enough time to get any work done. Look again in the yellow pages at all of the lawyers who offer a “free” initial consultation for all new malpractice cases. Folks, a good initial meeting takes hours. How busy can these other lawyers really be with their actual cases if they are offering “free consultations” to everyone who calls? Writing this book gives me a chance to “talk to you” about what you need to know about malpractice claims so that you can make an informed decision about what steps to take with your case. Even if I cannot accept your case, I would like you to be educated about the process so that you don’t fall victim to healthcare stonewalling and the insurance organizations which specialize in denial and in wearing down the victims of medical malpractice.
This Book is Not Legal Advice
I know the arguments the insurance company will make—and so should you—even before you start your claim. When you were injured, you entered a war zone. The insurance industry spends many millions of dollars to wear down, stave off, and defeat victims of malpractice. If I accept your case, we will be in this together. I am not allowed, however, to give legal advice in this book; I can offer suggestions and identify traps, but please do not construe anything in this book to be legal advice about your case until you have agreed to hire me AND I have agreed, in writing, to accept your case.
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