A MEDICAL MALPRACTICE OVERVIEW FOR NON-LAWYERS

Introduction

In the United States we are fortunate to have the best medical system in the
world. Sometimes, however, even skilled people make mistakes that they should
not. When those mistakes happen, the results can be catastrophic to patients
and their families. It is estimated that between 44,000 and 98,000 people die
each year because of medical mistakes. That is more deaths than from car
accidents. That is more deaths than from breast cancer. And that does not even
account for the many who are seriously injured.

I have been involved in medical malpractice cases for 17 years. That experience
is essential to properly evaluate and pursue a medical malpractice claim. I
will work closely with the appropriate medical professionals to carefully
screen and prepare each case. In addition to representing plaintiffs in actions
against doctors, in the past I have also defended doctors. That experience
helps me to predict how the other side will try to defend a case.

Deciding to file a lawsuit against your doctor or a hospital is a big decision,
and should not be made lightly. They help sick people, and, in large part,
provide competent services. But if a mistake has been made, resulting in
serious injuries or death, I have the experience and ability to help you.

Basic Concepts

“Medical malpractice” is when a licensed healthcare provider, such as a doctor
or a nurse, acts negligently. Examples of this are a mistake during surgery, or
the failure to recognize symptoms of a problem that should be recognized.

The typical person does not know what a doctor or other healthcare professional
should or should not do in a particular circumstance. Therefore, it is
necessary in almost all cases to get expert witnesses involved. Expert
witnesses are people who are in the same field as the person that we are
claiming was negligent.

Expert witnesses first help us evaluate the claim, and then, if the claim
appears to have merit, assist us during any litigation.

The first requirement that must be shown in litigation is that the healthcare
provider violated the standard of care. This basically means that they failed
to do what a reasonably competent person of the same specialty would have done
under the circumstances. If the healthcare provider fails to follow the
standard of care, then they are negligent. Expert witnesses would help us
establish for the jury both what the standard of care required, and explain how
the healthcare provider did not meet that standard.

Proving negligence (that is, proving a violation of the standard of care), is
not enough to make a case. Two additional elements need to be shown.

First, you have to show that the negligence was the cause of a specific injury;

Second, you have to show that damage or loss occurred as a result of the
injury.

It is quite common for a doctor or nurse to commit negligence, but for the negligence not to cause any significant harm. For instance, think of a situation where the doctor mistakenly prescribes high blood pressure medication, instead of diabetes medication, but it is discovered a day later and corrected. In that circumstance, even thought the doctor was negligent, there would typically be no damage done.

So we must show the link between the negligence and the injury and damages.
This is often a significant subject of controversy because many patients in
medical malpractice cases are sick, injured, or in need of care even before any
malpractice occurs. This is often what brings them to a doctor or a hospital in
the first place. So in many cases, what must be sorted out by the experts, and
eventually, the jury, is what damage or loss is due to the original condition
of the patient, and how much is due to the malpractice.

Damages

In Michigan, damages in a medical malpractice case are broken down into two
categories:

Non economic damages are those damages that are not susceptible to a
mathematical calculation, such as pain and suffering, humiliation, anxiety, and
loss of companionship.

Economic damages are those damages that can be mathematically calculated, such
as loss of earning capacity, lost income, medical expenses, therapy expenses,
lost services around the house, and so forth.

There are no limitations on the amount of economic damages that can be
recovered.

Because of strong political pull by doctors, the Michigan State Legislature
passed laws limiting the amount of non economic damages that can be obtained in
a medical malpractice case. These are called Adamages caps.” These raise
slightly every year based upon the Consumer Price Index. In 2004, these damages
caps are $366,000, except in a few types of cases (e.g., hemiplegia,
paraplegia, or quadriplegia, severely impaired cognitive capacity, or a
permanent loss of or damage to a reproductive organ), in which case the damages
cap is $653,500 in 2004.

There is presently a question as to whether the cap on non-economic damages
applies to cases in which the malpractice caused death. The Michigan Court of
Appeals decided in 2003 that the medical malpractice cap on non-economic
damages does not apply in cases in which the result of the malpractice is death
(Jenkins v. Patel, 256 Mich.App. 112, 126; 662 N.W.2d 453, 2003)

. That case is presently on appeal to the Michigan Supreme Court, and will
likely be decided within months.

Statute of Limitations

A statute of limitations is the amount of time that you have to file a lawsuit.
Once the statute of limitations expires, your claim is barred forever, even if
it is a valid claim.

The statute of limitations for a medical malpractice claim is generally two
years from the date that the malpractice occurred. There are some factors which
may alter this, but the bottom line is that if you wish to explore a claim for
malpractice, you should immediately consult with a medical malpractice attorney
once you have any inkling that there may have been negligence. You should do
this even if you believe that the statute of limitations might have expired.
There is no benefit to waiting, and it is often beneficial to the lawyer if he
or she is aware of the possible claim soon after it occurs.

If there was a death that was possibly caused by medical malpractice, then the
statute of limitations starts running on the date that the probate court
appoints a personal representative of the probate estate. Therefore, if the
personal representative has any notion that malpractice occurred, and wants to
explore that claim for the estate, he or she should be aware that the statute
of limitations is running once he or she is appointed. The Process of Asserting
a Medical Malpractice Claim

After one or more expert witnesses is consulted to determine whether you have a
legitimate medical malpractice case, then the law in Michigan requires that a
Notice of Intent to File a Medical Malpractice Claim be sent to any known
possible defendant (that is, the person(s) you might bring a suit against).

This Notice of Intent is required to contain an assortment of information, but
basically it is to inform the potential defendants of the claims against them,
and of the factual basis for the claims. It is important that the specific
statutory criteria are covered in the Notice of Intent. Therefore, it is
generally ill-advised for the claimant to draft his or her own Notice of Intent
without the assistance of an experienced medical malpractice attorney.

Generally, the Notice of Intent must be sent to potential defendants six months
before the lawsuit can be filed. The theory is that this might prompt them to
enter settlement discussions before suit is brought. Substantial settlement
discussions prior to litigation, however, occur infrequently.

If the Notice of Intent does not lead to settlement discussions, the next step
is to file suit. This includes the filing of a Complaint, along with an
Affidavit of Merit.

The Complaint is the basic document that sets forth in general terms the
factual basis for the claim, and what you are seeking in terms of damages. In
Michigan it is customary to indicate that damages are “in excess of $25,000.”

Accompanying the Complaint must be an Affidavit of Merit. This is an affidavit
which is signed under oath by a healthcare professional who specializes in the
same field as the healthcare provider whose conduct is being called into
question. For example, if the claim is against a cardiologist who is
board-certified by the American College of Cardiology, the person who signs the
Affidavit must have the same qualifications. The Affidavit of Merit must set
forth in detail why the medical malpractice claim is deemed to be meritorious.
If more than one specialist is being sued in the case, then there must be an
Affidavit of Merit accompanying the Complaint with respect to each specialty.

It should be noted that it is critical that the Affidavit of Merit is properly
drafted. If it is not, the court may dismiss the case, and the suit will
considered to never have been filed. Depending on the circumstances, the
statute of limitations may have expired in the meantime. This illustrates why
it is so important to consult an attorney with substantial medical malpractice
experience.

After the Complaint has been filed, the defendant is given a certain period of
time to answer the Complaint. Shortly thereafter, the court will set a schedule
for the litigation to occur.

Soon after the defendant answers the Complaint, pre trial discovery begins. Pre
trial discovery consists of the exchange of information between the parties so
that the plaintiff can find out more about what really happened and the
defendant can find out more about the plaintiff and the plaintiff’s claim. This
typically includes, among other things, interrogatories (written questions),
the exchanging of records and other documents, and depositions. A deposition is
the taking of testimony under oath of the parties and other key witnesses.
Typically, the opposing attorney will ask the questions. The attorney who
represents the party is also present. A court reporter will take down every
question and answer. The purpose of the deposition is to obtain an oral
exchange of information on issues deemed to be important to the case by the
attorneys.

Depending on the court and the complexity of the case, pre-trial discovery can
take anywhere from six to 18 months.

Throughout the case, either side might bring one or more a motions before the
court. A motion typically is used to resolve a single, specific issue in the
case, although in certain circumstances a motion can resolve the case entirely.

After discovery is complete, a process called “Case Evaluation” will occur.
Case Evaluation is where a panel of three experienced attorneys who are not
connected to the case briefly review the merits of a case and give an advisory
opinion on its settlement value. If all sides accept that value, then the case
settles. If any party rejects it, then the case does not settle. While
occasionally this results in settlement, typically it does not in medical
malpractice cases.

Court Rules also allow for the court to hold settlement conferences with the
parties, and for voluntary mediation or facilitation. These are processes in
which a trained neutral third party meets with the parties to see if the case
can be resolved.

If the case does not settle before trial, then obviously the case is tried
before a jury. The trial will usually take between three days and three weeks,
depending on the complexity of the case.

It is safe to say that most medical malpractice cases are resolved before
trial. But in some cases, the perspectives of the parties are so different that
the case simply must be tried to a verdict.

I always assume when I agree to take a case, that the case will need to be
tried to a verdict. This ensures proper preparation, and zealous
representation. Ironically, it may also increase the likelihood of an
appropriate settlement.

Getting Started

One thing that must be understood is that a bad result at a medical facility
does not necessarily mean that there has been malpractice. The human body has
shortcomings, and bad results are sometimes unavoidable no matter how competent
the medical treatment has been. Therefore, it is critical to explore fully why
you think you have a case, and to find out whether there is a factual and
medical basis to support your belief. To do this several things must be done.

First, a fee agreement must be signed. Typically, plaintiff medical malpractice
attorneys are compensated on a contingent fee basis. This means that the
attorney’s fees and charges will be related to the amount of the recovery. The
standard percentage arrangement is one third of the “net recovery.” The net
recovery is the total amount of damages (either by way of verdict or
settlement), minus the costs of prosecuting the litigation. If there is no
recovery, then the attorney takes no fee. But in that circumstance the client
is still be responsible for any out of pocket costs incurred.

You will also be given the option of paying on an hourly basis of $175.00 per
hour instead of the contingency fee arrangement. This would have to be paid
monthly as based upon the amount of time that was spent on the case that month,
and would be paid regardless of the result. Most clients opt for the
contingency fee arrangement where an attorney’s fee is paid only if the case is
successful.

After the fee agreement is signed, then medical release forms must be signed so
that all pertinent records can be obtained. If the claim involves wrongful
death, and a probate estate has not already been created, I will start an
estate in probate court and have someone appointed, typically a family member,
as a personal representative to obtain records from the healthcare providers.

I will then review all of the patient’s pertinent medical records, including x
rays or other tests, to preliminarily assess whether it appears there might
have been any flaws in the medical care.

If this preliminary assessment suggests a possibility of negligence, the case
will then be sent to one or more medical experts to help evaluate the claim as
discussed previously.

Why Should I have Tim Taylor Handle the Case?

I have been practicing law since 1986. I have been involved in dozens of
medical malpractice claims, both on behalf of plaintiffs and defendants. The
Michigan legislature has passed laws making the filing and pursuit of medical
malpractice cases complicated and difficult. Because of my experience, I will
meet these requirements.

I am also fully aware of the unlimited resources that the insurance companies
are willing to spend to defend a case even though the case against the doctor
it insures may have complete merit. I will engage them in that battle and
achieve the best result that I possibly can for you. Your case will be handled
by me personally, and not by an associate or junior lawyer. I am nearly always
accessible, and will always be honest with you about your case. I will not take
your case merely to try to settle it. If I file suit in your case, it is
because I believe that there has been medical malpractice, and it means that I
am willing to take the case to trial unless a sufficient settlement amount is
offered.