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Shapiro, Lewis, Appleton & Favaloro
Shapiro, Lewis, Appleton & Favaloro
Contributor • (800) 752-0042

Screening Medical Malpractice Cases Is Challenging

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As a law firm handling medical malpractice cases in Virginia (VA), North Carolina (NC) and in other states, we spend a lot of time on the phone talking to potential clients about their claims of medical error by doctors and hospitals. Many of these client calls are heartbreaking to hear about loved ones who were severely hurt by the mistakes of a health care provider. However, many of the potential cases that we hear about from callers are not ones that we are able to recommend pursuing as medical malpractice cases. Part of the reason that we, as a law firm, have to decline potential medical malpractice cases has to do with the court system and the way these cases are handled by insurance companies.

Unlike automobile accident cases, most medical malpractice cases have to be fully litigated. By fully litigated, I mean that medical malpractice cases typically involve filing suit, hiring experts, doing discovery, taking depositions, and often trying the case to a jury verdict. By contrast, automobile wreck cases are mostly settled without ever filing suit just based upon letters and telephone calls and reaching an agreement about the value of a case. The reason that medical malpractice cases go all the way into court the vast majority of the time has to do with the way insurers handle these cases. The insurance companies fight these cases tooth and nail, rarely settling them without the plaintiff’s personal injury lawyer showing all of their cards including all of the experts necessary to prove the case. This is especially true in states like Virginia which has a cap or legal limit on medical malpractice cases. The insurance company realizes that even if they lose, they can only lose a certain limited amount. Therefore, they have less incentive to prevent the malpractice case from going to a jury by resolving it fairly ahead of time. Also, doctors have a veto right over settlement of medical malpractice cases in their insurance contracts. This means that the doctor can say that they don’t want the insurance company to settle the case fairly even if it is clear that they were at fault and that they injured someone by a medical error.

As a result of the likelihood that extensive time and money will have to be put in to successfully pursue a medical malpractice case, our law firm has to be careful about what cases it takes. There has to be a viable theory of negligence to show that the doctor or hospital violated the applicable standard of care. Also, in order to accept a medical malpractice case, we have to be presented with a catastrophic and permanent injury. Although there are some exceptions where the patient has completely recovered but had extensive and unnecessary surgeries or hospitalizations, the situations are less common. Typically, in order to pursue a medical malpractice case, there has to be the kind of serious injury that is likely to go on for the plaintiff’s lifetime or has resulted in death. Probably, as few as one or two potential cases out of 50 callers we speak to will likely result in a claim that we believe we can successfully pursue.

This doesn’t mean that you shouldn’t call us and ask about your potential malpractice case. We have a toll-free number: (800) 752-0042, good anywhere in Virginia (VA), North Carolina (NC) or throughout the U.S. If nothing else, by calling us, you will find out whether there is a viable claim or not. It doesn’t cost you anything to speak to our law firm about your medical malpractice case. We won’t charge you anything unless and until we agree to take on the case and there is a recovery. We speak to dozens of people each week and we field lots of calls that do not result in our pursing a medical malpractice claim, but where hopefully we have given some useful information to the family who believes they have been wronged by a doctor or hospital. We are probably more likely to accept a case than some other law firms that do medical malpractice. Some lawyers will only take a medical malpractice case where the medical error is clear on the face of the medical records. Although this sometimes happens, we often run into cases where the medical records documentation is insufficient to prove the medical error, on their face. In these cases, evidence in the form of testimony from the patient and their family may be critical in showing exactly what happened. We are often willing to take the risk on these more challenging cases where some other law firms will not.

Even if we can’t accept your medical malpractice case, we will try to point you in the right direction or give you options. One option is to make a claim with the Virginia Board of Medicine which regulates doctors, or other state’s similar entity. Although the claim with the Virginia Board of Medicine will not result in compensation to the family, it will hopefully cause better state oversight over errors made by doctors in Virginia (VA). Through the State Board of Medicine (www.dhp.state.va.us), you can get the state’s resources to bear on looking at whether the doctor or hospital messed up. Through this process, you may get some sense of satisfaction that you have established that the doctor did a wrong to you. By telling your situation to the Virginia State Board of Medicine, you may also prevent some other patient and family from suffering injury at the hands of an incompetent health care provider.

When contacting Hajek, Shapiro, Cooper, Lewis, and Appleton about a medical malpractice case, there are certain things to keep in mind. First, in the perfect situation, you already have a complete copy of all of the medical records in hand when you contact us. Although we can get the medical records for you in certain circumstances, we find it is often more efficient for the client to get the medical records in question themselves. Among other things, a request for records from an attorney will cause the risk management department for the doctor or hospital to immediately notify their insurer. Although you hope that no records get altered or lost as a result of this process, it is possible that it might change the situation. Thus, getting the records yourself that we need to analyze a potential medical malpractice claim is helpful.

It is also helpful if you have some idea of what type of medical malpractice you think occurred. Certain patterns of medical error tend to come up again and again in medical malpractice cases. For example, there would be the failure to timely diagnose a disease like cancer which is made worse by the delay. Another common type of case would be the retained sponge or other medical device left inside a patient after surgery. Doctors often damage or pierce some vital organ mistakenly when going in to do a surgical repair. Another common situation is where medicine has been improperly prescribed to a patient. For instance, either giving a drug which is contraindicated or a medicine in an amount which constitutes overdosing happens with some frequency. It helps us tremendously if you have some idea about what you believe the doctor did wrong to cause the injury when you call us. Clearly a bad bedside manner or a bad result is not enough to go forward on in a medical negligence case. You need to actually show that the doctor or hospital did something wrong that no reasonable health care provider would have done. Finally, please don’t wait too long to get in touch with us about a potential medical error. The statute of limitations in Virginia is two years from the date of an injury to file suit in court. Although there are some exceptions to that rule, that is generally the one applicable to medical malpractice cases in Virginia. Other states than Virginia have different deadlines. For example, the North Carolina (NC) statute of limitations for injury is three years, but for wrongful death is two years. If suit is not brought within the applicable deadline, then the case is forever lost.

The Virginia legislature recently put in a law requiring the personal injury lawyer to certify before serving a law suit in medical malpractice that they have secured the necessary medical experts to prove that the health care provider violated the applicable standard of care causing an injury. North Carolina (NC) already has this type of law for medical negligence cases. Making that certification takes time. Thus, if you contact our law firm too late, getting too close to your statute of limitations, we may be unable to help you.

We hope that there is no need for you to call us about medical malpractice. However, if there is, we hope you will let us work with you to see what can be done.