How To Talk To A Lawyer About Medical Malpractice

We want you to call us. Call us to vent. Call us to explain your situation. Call us to just talk. It's OK. It's what we do; talk to many, many people everyday and listen to their dilemmas, their problems and make judgments about which problems may justify legal action. We listen to highly educated people, and folks with little formal schooling; stable people and nutty people; working people, and nonworking people. We listen to everyone all the time. If you have a feeling -- and it can be just a feeling -- that a physician or other health care provider did something wrong to you or someone you care about, call an attorney.

But. . .

There are good ways and bad ways to initiate dialogue with an attorney about a potential medical malpractice case. Consider these points:

• Keep it brief and succinct. Remember that lawyers talk to lots of people everyday about potential cases. To be honest, some people that contact us (and I don't think it's just us. . . I hope) are a little nutty. Whether by email, letter or telephone, we sometimes receive long, rambling stories in which folks seems to complain about everyone and everything all at once. We tend not to focus much attention to these. Before contacting an attorney, sit down and think about how to state your prospective case in a sentence or two. Your story probably cannot be told with complete accuracy in such a brief manner. That's OK. But providing the lawyer with a short and to-the-point summary upon first contact you will get his or her attention and the attorney will likely be compelled to spend time talking to you, asking questions, eliciting important information. Also, by approaching an attorney in this way you are helping to establish your credibility as someone the attorney would like to work with and for.

• Be frank and forthcoming. Never hide information from an attorney. Even before you formally enter into an attorney/client relationship a lawyer with whom you speak during an initial consult, even if it's over the telephone, is bound to keep what you tell him or her confidential. Sometimes the details of a potential case or the people involved can be difficult to talk about, or even embarrassing, but the lawyer simply must know everything in order to serve you adequately. You need to be honest. If you are not frank in the beginning the attorney will almost always learn what you failed to disclose down the road. This could harm your relationship with your attorney and damage your case.

• Be prepared to ask questions. The attorney will undoubtedly have lots of questions to ask you. Likewise, you should ask lots of questions of the attorney. Again, before contacting a lawyer take a few minutes and think about what questions you would like answered. Ask about the attorney's fee, ask about how much experience the attorney has handling medical malpractice matters, ask what has to happen before a lawsuit can be filed, ask how the attorney will go about determining whether you have a case or not, etc. Doing so will provide you with helpful information, and will also bolster your credibility as someone the attorney would like to represent.

Entering into an attorney/client relationship is in many ways like entering into any other human relationship. Initial impressions are important and it can take some time for a bond based on trust and mutual admiration to form. When both attorney and client keep that in mind the relationship will likely be productive and pleasant.

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Hospital Files Lawsuit Over Patient Intimidation

Just when I thought I could not be more jaded about health care insurance companies comes a story out of New Jersey about an insurer intimidating patients in the hospital. Bayonne Medical Center has filed a lawsuit against Horizon Blue Cross Blue Shield of New Jersey alleging that the insurer routinely sent couriers to the hospital to convince patients to leave the facility or risk being overcharged for care. Read the story here.

I suppose this could happen anywhere. If it happens to you let hospital staff know. Also, this highlights a point I've made before: If you need to go to the hospital, bring someone you trust with you. A good friend or family member can help you deal with this sort of annoyance.

When Care Providers Will Not Listen

A tragic story appears in this morning's Washington Post about a 44 year old man who died because hospital physicians failed to timely diagnose and treat his bowel perforation. The hole in his bowel allowed fecal matter to leak into his abdomen, causing dangerous toxins and bacteria to be released into his blood stream. Adding to the tragedy was the fact that the man's wife, herself a nurse, suspected that he had a perforation and begged hospital staff unsuccessfully to order a CT scan of her husband's abdomen. Read the full story here.

One of the things that struck me about this piece was the ordinariness of the events described in the story. I hear similar tales of frustration often. Communication breakdown leads to medical errors. Medical providers often do not listen to their patients or they hear them and have contempt for what they have to say. Though often difficult and aggravating, patients and their families must be persistent and composed when dealing with health care providers. If there is something that needs to be said, say it; again and again if necessary.

"Defensive Medicine," Nonsense

Repeat after me, "Doctor, why are you ordering this test?"

Simple. To the point. You should receive a straight forward, clear and concise answer to this question every time. When you pose this question to your physician you are doing two helpful things: (1) You are participating in and learning about your own health care, and (2) you are helping to reduce the overall cost of health care, which helps everyone.

Many doctors are blaming the perceived need to practice "defensive medicine" as a significant contributor to ever increasing medical costs. Their argument is that out of fear of getting sued they feel compelled to order tests for their patients that are not really necessary. Apparently, the logic behind this is that if it seems that the doctor is doing something to care for his or her patient, even if unhelpful or nonsensical, then if the patient ends up with a bad outcome the doctor will not get sued. This approach to medicine is stupid for two reasons: First, the doctor is not protecting himself or herself from liability in the slightest by ordering unnecessary tests or procedures. Secondly, and more importantly, the physician is exposing the patient to undue risk.

In Illinois a physician may be found liable for medical malpractice or medical negligence (they mean the same thing) when he or she fails to act as a reasonable physician would under the same or similar circumstance. At a medical negligence trial, a jury determines what was reasonable under a given set of circumstances by listening to the testimony of experts who practice medicine in the same field as the defendant doctor. To offer an obvious example, if called upon to amputate one of a patient's legs, a surgeon would reasonably be expected to check the chart to determine whether the left or right leg needed to be removed. In that circumstance, a failure to do so resulting in the patient having the wrong leg amputated amounts to medical negligence. Under the law, ordering unnecessary or unhelpful tests does nothing to protect a physician from liability. A reasonable physician must perform procedures and order testing appropriate to the circumstances. A failure to do so which results in harm is medical negligence. Furthermore, many diagnostic tests and procedures come with risks. For example, contrast dye sometimes used in CT scans can bring about a significant allergic reaction. A colonoscopy can result in a perforated colon. Patients should not shy away from these usually safe procedures, but they should not be done unnecessarily either.

When it comes right down to it "defensive medicine" is a nonsensical term. It's just another phrase that means negligent medicine.

Talk To Your Doctor About Labor Induction

It seems that many pregnant couples* drift up to and past delivery due days without having a serious discussion with the woman's doctor about induction. Apparently, some doctors waive off induction, and encourage waiting for nature to take its course. This is not always a good idea. As the delivery due date approaches patients should be proactive regarding labor induction. According to The Mayo Clinic, "In the United States, an estimated one in five labors is induced." Sometimes, delivering sooner rather than later is better. If the baby is far enough along that its lungs are mature, the cervix has started to prepare for delivery, and the woman has not had a prior c-section, the doctor should be asked about scheduling an induction. There are significant risks sometimes associated with carrying a fetus beyond its due date. Generally, a fetus should not be carried two weeks beyond the due date. Click here to read an informative guide on the pros and cons of induction from The Mayo Clinic.

*(These days women aren't pregnant, couples are. Yeah right.)

The Problem of Medication Errors

I have seen many instances where the wrong medication was administered to a patient -- or the right medication was given in the wrong manner or dose -- resulting in terrible consequences. Medications errors continue to be a huge problem. This is especially so for older patients who often take numerous drugs prescribed by several different physicians who may not communicate with each other effectively. I came across an informative article in Senior Times Magazine about a means for reducing medication errors. Read it here.