Do you know if you need a medical malpractice lawyer?
A medical malpractice lawyer helps people who were victims of medical negligence. The lawyers at our firm have been successfully doing this for nearly 40 years. Medical Malpractice covers a huge area, it can include a surgical errors, failure to monitor medication, not advising the patient of the risks and complications of a procedure, misdiagnosis, failing to treat an urgent condition or a host of other issues. I get a phone call almost daily from someone who has been through some sort of negative experience with their health care, asking whether they have a medical malpractice case. This is a really hard call to make based on a phone conversation as the answer often depends on the details in the patient’s medical records. While I can’t often say in a quick call whether you do have a medical negligence case, I can often tell if you don’t. You may need a Medical Malpractice lawyer if your case passes what I call the Tripod Test. A tripod needs three legs to stand up. A medical malpractice case must also have three legs to be worth pursuing: 1. Negligence; 2. Damages; and 3. Causation.
The first thing I tell my clients is that Bad Results do not equal Bad Medicine. There is a huge misconception that just because the end result was bad someone must have screwed up. If you’ve had a hip prosthesis that has failed it does not necessarily mean the doctor did something wrong. While it could be due to a medical error, a certain percentage of these types of operations just don’t succeed due to no fault of the doctor. There is a concept in medicine called “Known Risks and Complications”. Almost any medical procedure, from open heart surgery to removing a mole, has potential bad things that could happen even with the best of care.
As medical malpractice lawyers, we investigate to see if the patient’s care and treatment was below what a reasonable doctor, with similar training and experience, would have done in a similar situation. The law does not hold doctors to a standard that says they have to do what the best doctor in the world would have done. The court simply asks did they do what a reasonably prudent doctor would have done.
If the answer to the first question is “yes”, then there was negligence. However, that still does not mean you have a case. The next question is how did the negligent act hurt or damage the patient? The reality is that medical malpractice cases are some of the most difficult, complicated and expensive cases in the legal world. The insurance policies that cover doctors and hospital staff have what is called a Consent Clause. That means that the insurance company cannot settle with a hurt patient, even if they want to, without the doctor’s consent. This type of clause is unique to medical professional liability policies. If you get in a car accident your auto insurer can pay the other driver even if you insist it’s the other guys fault and tell them not to. Not so for doctors, they must say it is OK to settle. Allegations of malpractice against a doctor where we are attacking their professional competency and that cause their insurance rates to go up, tend to be taken very very personally by doctors. Due to this consent clause these types of cases tend to not settle and go to trial or settle at the last minute just before trial after all the parties have incurred significant expenses. The bottom line is that if you file a medical malpractice case you better be ready to strap in for the ride. They are not easy, fast or cheap. In order to justify the time and monetary commitment there must be sufficient damages that have been suffered by the victim. Compounding the problem is the fact that in Missouri we have caps or limits on what a victim can recover for their pain and suffering in medical negligence cases. All this means that a lawyer evaluating a medical negligence case wants to make sure that the game is worth the candle and that they will be able to recover enough on the back end to cover expenses, justify the time commitment and make the client happy. For this reason, we tend to be highly selective about the cases we take and usually only file cases involving life changing and permanent injuries. If the negligence of a nurse resulted in you having to stay an extra week in the hospital but now you are fine, the reality is that even with clear negligence it may not be worth pursuing.
The final leg of the tripod is my favorite because it is the one everyone forgets about: Causation. That means that we need to not only show that the health care worker was negligent , but also that the negligent act directly caused your damages. There is a reason someone is seeing a doctor: because something is not right. It can be very difficult to determine whether a person’s medical problems were caused by a medical mistake or their original condition. If someone has had 3 prior neck surgeries and is upset because after their fourth surgery they are having a lot more pain, the defense will argue that the pain they are suffering is due to their preexisting condition and not to anything that happened in the fourth surgery. Another good example is cancer cases. We often talk to patients who have had a misdiagnosis of their cancer which is caught at a later date. They are understandably upset, however, we need to take a hard look at whether their eventual outcome would have been different if the cancer had been properly diagnosed and treated in a timely manner. Sometimes a delay makes all the difference in the world and sometimes the reality is that even a significant delay would not have changed the outcome.
Most people focus on the first leg of the tripod, “Was there a Mistake”? That is the important first question but due to the complicated nature of these cases that does not mean there is a legal case for malpractice. The attorneys need to examine the records in detail to make sure the negligence was the cause of the damage and that the patient’s life has been impacted in such a way that the case is worth pursuing. Complicating matters even further is the fact that there are special laws that apply only to medical malpractice cases that make prosecution and recovery more difficult.
Our medical malpractice lawyers have decades of experience handling these highly complicated cases and we are very selective about the cases we do take. If you feel you or someone you know has had their life changed due to a medical error we would be happy to help you evaluate whether there is something that can be done about it.
Give us a call: 314-433-9131