Why Most Medical Malpractice Victims Never Recover a Dime - Part 8

The Reasons Most Malpractice Victims Receive Nothing

The 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.