Articles Posted in Useful Publications

Many community members are familiar with the basics of a negligence lawsuit, including those connected to medical malpractice. In most cases, after suffering an injury, the party initiates the suit by filing a “complaint” that lays out their legal arguments. That begins the long process of each side collecting evidence to be used in a possible trial. This includes conducting depositions, going through paperwork, and more. At some point the parties may engage in settlement negotiations. A settlement might be reached which may end the formal matter. If no agreement is reached, then the case may go to trial with a final decision from a judge or jury.

But does that end it? Not quite.

That is because one little understood part of the process is the work required to actually collect the award or settlement amount. For one thing, other parties may claim to have a stake in that amount. In medical malpractice cases, among others, that includes Medicare and Medicaid, if those programs provided care for the injured party.

The American Medical Experts recently published a story that discusses the standards of “trauma care.” Most might not be familiar with this term. In essence it refers to medical treatment provided in unique situations, most notably military surgeons in combat.

The actual principles of medical care are the same for all medical patients–the body does not differ between soldiers and civilians. However, the general “best practices” or “rules of the road”for surgeons differ, depending on the situation. It does not take much imagination to consider that aiding an injured soldier in the heat of combat on the battlefield is far different than performing a scheduled surgery in an modern hospital. Obviously any claims of “malpractice” would be different in each situation. The trauma care doctor has a wide range of pressures, timing issues, and logistical challenges that the traditional doctor does not.

But as the AME article discusses, the past century of trauma care has actually influenced the care provided in regular hospitals. This is most notably in the ways that trauma care protocols have developed over the past 100 years. The United States Army Surgical Research Institute uses official “trauma guidelines.” They were apparently developed (and are refined) in conjunction with the American College of Surgeons Committee on Trauma. The refinement is made both with medical advances as well as following surveys which indicate what works and what doesn’t. Obviously the goal is always to act in the most efficient way to improve the outcome for the patient.

This week marks the typical end of the yearly session for the United States Supreme Court. Per tradition, it is during this week that the Court officially releases their rulings in the most controversial cases that were heard over the last eight to ten months. Yesterday, the court did just that in a case related to liability for defects in generic drugs in Mutual Pharmaceutical Co. v. Bartlett. This is a case that we have discussed before as having important implications for many different Chicago residents and medical patients.

Unfortunately, though not wholly unexpected, the court’s opinion runs counter to the best interests of those harmed by dangerous drugs. The full online text version of the opinion can be found online here.

The Case

Accountability breeds improvement. That basic mantra has long-been shown true in many different kinds of settings. Focusing on quality and care in any job depends on the consequences of providing inadequate services. It does not take much deep thinking to realize that quality may be sacrificed if mistakes do not have repercussions.

Of course, the quality of medical care is one of the textbook examples of this idea. When doctors, nurses, and others have little to lose for providing substandard care, then the incentives to improve patient safety is minimal. Conversely, when patients have fair access to the judicial system to file medical malpractice lawsuit when harmed by negligence, then all those involved in the caregiving industry have obvious incentives to take steps to minimize errors.

That principle was verified yet again in recent research soon to be published in the NYU Law Review.

Expert witnesses are absolutely critical in medical malpractice cases. That is because many of these matters revolve around complex distinctions in medical terminology and protocols. The expert witness is able to connect the dots, providing professional explanation of how a certain course of conduct deviate from acceptable standards. Without that connection is usually hard (often impossible) for juries to truly evaluate the information before it to make logical decisions about potential liability. That is why for a case to advance, in many settings, expert testimony is not just helpful–it is required.

Experts are used not only in cases that go to trial. Even before a trial, during the discovery phase, both sides will usually submit expert witnesses to be deposed. Essentially this involves each side interviewing each expert witness, asking questions and receiving answers that would be used in a trial if it happens to go that far. All of this means that one of the most important skills that a medical malpractice lawyer must possess is the ability to understand how to deal with these witnesses–both those on their side and opposing experts. Identifying key discrepancies, exploring questionable answers, ensuring full explanations, and other strengths often make or break a particular medical malpractice case.

Expert Witness Examples

The Clinical Advisor reported recently on the end of a high-profile medical malpractice case that made headlines across the country. The situation involved a cardiologist who was accused of performing a mountain of unnecessary surgical procedure to implant stents into patient hearts. The patients agreed to the surgeries while assuming that they were necessary per the doctor’s recommendations. However, it was eventually learned that many of those stents may not have been medically necessary–the doctor was only urging them because of his financial interest in performing the operation.

Mid-Trial Settlement

The doctor, and owner of a medical clinic in Maryland, was accused of performing the hundreds of unnecessary stent procedures over a two year period–between 2007 and 2009. Eventually the doctor’s medical license was revoked for his conduct. However, it has taken the remaining years for the civil lawsuits filed in connection with the matter to make their way through the system.

Few people truly understand the complexity of medical billing. For the vast majority of community members, receiving a medical bill is similar to getting a book in a different language. You understand the basic structure, but it is impossible to make heads or tails of the details. Understanding what the charges are, how they were arrived at, and how they compare to others is next to impossible. Even those intimately involved in the medical system often are not fully aware of how it all works.

One of the big challenges is the fact that the same procedure or service may have two totally different costs, depending on the patient and the manner in which they will pay.

All of it creates an immense tangle that keeps all medical billing mired in a fog. And it is one of the key reasons why we are finding it so hard to get a grip on the problem of rising medical costs.

Last month we shared information on a new law that passed through both chambers of the Illinois General Assembly and was signed by the Governor. The law includes a few components, but one of them simplifies the contingency fee rules as they apply to Illinois medical malpractice lawyers. Before the new law took effect there was a tiered system upon which fees could be received in these cases, with a larger percentage for lower dollar amounts and a shrinking percentage for higher awards. Now, however, contingency fee rules in these matters are straightforward and treated like all cases. Attorneys can ask for one third of a settlement amount or award

Smearing the Situation

Expectedly, after the passage of the law, chronic defendants in medical malpractice cases and their allies used it as an excuse to again criticize the legal system itself as it applies to these cases. Others misunderstood the legislation as some underhanded scheme to sneak through a law that only benefitted attorneys and allowed them to collect more money. These characterizations are false.

Insurance companies are often at the center of injury lawsuits. Medical malpractice cases are no exception. While hospitals, doctors, nurses, and other staff members may be the individuals who actually committed the errors, any subsequent payment to those harmed will likely be made by an insurance company. That is why these companies often dominate the defense of most injury cases, including those related to medical malpractice nursing home neglect, auto accidents, and more.

As most intuitively know, insurance companies are not in the business of being generous when they need to make a payment. In fact, many have experienced first-hand the low ball techniques used by these companies to make as little a payment as possible, regardless of the long-term harm and damage suffered. One of the very reasons that you need to have an experienced Chicago medical malpractice attorney on your side in the event of a medical error is so that professionals are acting on your behalf when dealing with the tactics of large insurance companies. Going it alone is usually a recipe for getting nowhere near what you are owed.

Insurance Computer Software Problem

Medical malpractice lawsuits serve a preventative function on future errors in two ways. First, the risk of facing a lawsuit (or the expense of paying compensation after an error) works to spur change that prioritizes patient safety. Individual doctors and hospital administrators often enact new rules, training, and staffing in order to ensure quality standards are met one hundred percent of the time. The expense of these changes are justified if costs must be paid for errors. Alternatively, these lawsuits may serve to warn patients about which professionals or facilities offer a higher risk of harm. The idea is that, in the marketplace of options, medical patients will chose the safer facilities. Those facilities will ultimately be more successful. The lower quality facilities will either change or be driven out of business.

The second option–driven by consumer decisions–only works, however, when those consumer have easy access to understandable and reliable information about doctor quality. It is in that vein that more and more groups are trying to share information about doctors and hospitals. We have frequently written posts on some of those new rankings, including hospital data compiled by Consumer Reports and a group known as Leapfrog.

Checking on Your Doctor

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