Medical Malpractice: 10 Reasons Why Most Victims Won't Recover a Dime
By Gerry Oginski 

Despite popular opinion about the “skyrocketing” increase in malpractice suits and awards, the number of suits has not increased since 1996, 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 victims 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 2.9 to 3.7 percent of admitted hospital patients suffer some sort of preventable injury as a result of medical management (i.e., not from the original medical condition). Even more management-related injuries occur outside of the hospital. These injuries are a result of a physician /administrator’s affirmative mistake, or that person’s failure to act in a particular situation. Types of mistakes include errors in diagnosis, use of automated materials, and inappropriate delay of treatment.

However, one of the most common errors occurs with administering medication. The Massachusetts State Board of Registration in Pharmacy estimates that in Massachusetts alone 2.4 million prescriptions are filled improperly each year, the majority of which involve providing the wrong strength drug, or the wrong drug altogether. Each layer of communication introduces another opportunity for error. Improper diagnoses and negligent supervision of trainees are other common errors, and both have led to disastrous results in many cases. Up to 98,000 patients are killed each year as a result of preventable medical errors, the eighth leading cause of death in the U.S., yet only 10,000 cases of malpractice are filed each year. In the vast majority of cases, however, the fact that a poor medical outcome was caused by malpractice is hidden from the patient.

2. No autopsy was ever performed.

Remember that we must prove both carelessness on the part of the doctor or hospital and that the carelessness resulted in death or injury. In a medical malpractice case that results in death, it is extremely difficult to prove that the death occurred because of the malpractice without an autopsy. This is because there are so many reasons why a person might have died, but we must prove that at least one of the reasons for the death was the negligence of the doctor or hospital.

3. A physician’s poor bedside manner does not constitute negligence.

In the vast majority of cases, even egregiously poor bedside manner cannot be considered in determining whether a physician was legally negligent in providing treatment. We have reviewed many cases where arrogant doctors provided care and the patient was injured. It just doesn’t matter legally that the doctor was a jerk. We must prove, with expert medical opinion that the treatment departed from good and accepted medical care, and not bad bedside manners, that caused injury.

4. The patient suffered no significant damages.

As we noted above, the legal system is not set up to handle small medical malpractice cases. We decline hundreds of cases a year where it appears that the doctor was careless but the resulting injury is not significant. A pharmacist may incorrectly fill your prescription, and you might get sick for a few days. If you have a good recovery, however, you probably don’t have the basis for a case. That’s 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.

5. The physician or hospital’s mismanagement did not necessarily cause the injury suffered.

As discussed earlier, it is very difficult to prove that medical wrongdoing was the reason why the patient suffered the injury that he or she received. The insurance companies have many standard defenses including, for example, that (1)The injury was an unforeseeable consequence of the initial condition/injury, (2)The injury was due to the patient’s non-compliance with prior medical advice, (3)The risk of the patient’s particular injury was a known, recognized, acceptable risk (acceptable to whom?), (4)Some other party was responsible for causing the injury, or (5)The injury was caused by a previous illness or disease.

Medical malpractice claims must show that the doctor’s substandard care, more likely than not, was a substantial factor in causing injury.

6. The injured patient has not retained an experienced attorney.

The world of medical malpractice claims is a world unto its’ own. It has its’ own special rules and laws. We believe that it is imperative that an experienced medical malpractice attorney or an attorney that is ‘teaming up with’ an experienced malpractice attorney represent you.

7. The statute of limitations has expired.

This is the time a person has to start a lawsuit. The time limit is very different for a city, state or municipal hospital than it is for a private hospital or doctor. One reason that you should consult an experienced medical malpractice attorney early is to determine when the statute of limitations expires in your case! DON’T LET YOUR TIME RUN OUT without knowing your legal options!

8. Jurors have been biased by the insurance industry.

The insurance industry has spent millions of dollars funding research to suggest that there is a widespread problem with respect to medical malpractice suits. These studies claim that excessive verdicts are causing malpractice insurers to raise their premiums, forcing physicians out of the medical profession. It has been proven that increased medical malpractice premiums have nothing to do with lawsuit verdicts! Even the American Insurance Association has said that lawmakers who enact “tort reform” should not expect insurance rates to drop! Jurors who hear the insurance company propaganda then award less of a verdict than they would normally have deemed appropriate. Unfortunately, after the verdict is reduced on appeal, malpractice victims often receive less than is necessary to pay their medical bills for treating the subsequent injury that was caused by the malpractice. Even your doctor probably believes that by capping, or reducing damage awards, this will cure all that is ill with the legal system.

Nothing is further from the truth. The medical malpractice insurance companies are in business to make money. Not to pay out money. The more they pay out in claims, the less profit they and their shareholders take home. I have always asserted that if the doctors wanted satisfaction in reducing their inflated premiums, they should look no further than their own malpractice insurance companies. By demanding rate reductions and by threatening to obtain coverage elsewhere, the insurance companies have to realize that their rates must be re-evaluated. Also troubling is why physicians have not banded together to open competing insurance companies in order to obtain reduced rates.

9. The injured patient is unable to hire good qualified medical experts.

You cannot win a malpractice case without a medical expert. A good expert who is willing to testify can be hard to find. It is becoming increasingly difficult to find doctors who are willing to stand up for what is right and to right a wrong. It takes time and money to find the best experts for your case. This is one area where insurance companies have an 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 the defense (or concoct a defense). They can afford to hire many experts. Most plaintiffs cannot afford to have ten experts look at their case in order to determine which expert will work ‘best’ for them.

Increasingly, doctor’s professional groups are now attempting to bring claims against doctors who testify against other doctors. These claims seek to revoke the doctor’s board certification or punish the expert doctor for testifying for a patient. This has happened recently in the field of neurosurgery and obstetrics and gynecology. The potential threat of professional repercussions for testifying on behalf of a patient will significantly inhibit many doctors from helping injured victims in seeking justice and proper compensation.

10. Juries like doctors.

Folks sitting on juries rely on doctors when they’re sick. They trust their doctor. Their family uses the doctor. The doctor has trained for many years to learn their specialty. How can the doctor be faulted for something that would have happened even if good care were rendered? Fighting a malpractice case is an uphill battle. But, with proper information, the right facts, the right experts and an experienced attorney, you stand a much better chance of knowing the risks of taking your case to trial.

Gerry Oginski is an experienced medical malpractice and personal injury trial attorney and practices exclusively in the State of New York. He has tirelessly represented injured victims in all types of medical malpractice and injury cases in the last 16 years. As a solo practitioner he is able to devote 100% of his time to each individual client. A client is never a file number in his office.

Take a look at Gerry's website http://www.oginski-law.com and read his free special reports on malpractice and accident law. Read actual testimony of real doctors in medical malpractice cases. Learn answers to your legal questions. We have 139 questions and answers to the most interesting legal questions. Read about his success stories. Read the latest injury and malpractice news. I guarantee there's something of interest to you on this site. http://www.oginski-law.com

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