Will med/mal suit be filed? Here's how attorneys decide
A medical malpractice case must have several characteristics
Did the physician act as a reasonably careful professional? If not, did the failure to act in this manner cause a significant injury?
These are the two most important factors plaintiff attorneys consider when deciding whether to pursue a malpractice claim, according to Steven M. Levin, JD, founder and senior partner at Levin & Perconti in Chicago. "We are often asked to review cases that show that malpractice was committed, but there is no relationship between the malpractice and the patient's injury or death," Levin says.
At times, the firm initially pursues cases because the practitioner's misconduct is so significant, but attorneys later realize that it is difficult or impossible to link the misconduct with the patient's injury or death. "In other words, we take the case because we are horrified by the conduct and do not pay enough attention to whether the conduct really caused significant harm," Levin says.
If the chart includes careful documentation of the physician's thought process and shows the physician has appropriately advised the patient about options, "we most likely would not take that case," says Levin. "If the record is poorly documented, has gaps, or is contradictory, this raises our antenna."
Here are factors that make it more likely the plaintiff attorney will decide not to pursue the claim:
• Cases in which malpractice was committed, but the injury that resulted is not significant enough to merit the time or expenses involved in prosecuting a malpractice case.
"We want to make sure we can connect the malpractice to the harm caused, and that the harm that occurred is significant enough to merit the emotion, time, and expense involved in bringing these matters to conclusion," says Levin.
Caps on non-economic damages in Texas and other states are now a factor when plaintiff attorneys are looking at the potential value of the case to see if it's worth their while, says Jennafer Groswith, JD, an attorney with Wilson Elser Moskowitz Edelman & Dicker in Dallas.
The decision to file a lawsuit involves careful consideration of the strength of the liability case and the amount of the damages, says Joshua M. McCaig, JD, a shareholder with Polsinelli Shughart in Kansas City, MO. "If both factors are favorable, the case will likely be filed. If both are weak, it likely will not," says McCaig. "In situations where the facts are good but damages are minimal — or vice versa — an attorney may consider filing suit just to negotiate a quick settlement."
• Cases in which the plaintiff has difficulty finding an expert to testify that the standard of care was breached.
State requirements regarding expert reports are another factor for plaintiffs to consider, such as Texas's Chapter 74 statute requiring the plaintiff to file an expert report to say the physician was negligent within 120 days of making a claim. "It has to be pretty detailed in terms of laying out what the standard of care is, how the physician breached that standard of care, and providing the causal nexus between the alleged negligent act and the injury that was sustained," Groswith says.
Groswith is aware of several malpractice cases that were dismissed after 120 days because the plaintiff couldn't provide this expert report.
"We also have the opportunity, if they file an expert report that we believe to be inadequate, to file an objection which will be heard before the court," she says. If the judge determines the plaintiff didn't made a good faith effort to comply with the statute, the case gets dismissed.
• Clear, thorough documentation of the physician's decision-making process.
"As a defense attorney, I am constantly telling physicians to document their differential diagnosis," says Groswith. If the chart clearly shows the diagnosis was considered and why it was excluded, this charting can deter a plaintiff from pursing a failure to diagnose claim.
Physicians often go through the differential diagnosis in their head without writing it down or document much too sparsely. "We've heard it and said it one thousand times, but juries think that if it wasn't documented, it wasn't done, even if the doctor swears up and down that it was," says Groswith. "It's like trying to prove a crime with circumstantial evidence."
Good documentation, for better or worse, gives the plaintiff attorney and expert a clear understanding of the care provided and limits their ability to create an argument. "If the documentation is poor, it provides wiggle room to create liability where it may not exist," says McCaig.
When McCaig was contacted by a plaintiff attorney about a possible misdiagnosis case, he obtained a copy of the medical records and pointed out the records of his client that clearly documented the findings of a radiology report and the client's reasonable reliance on the findings of the report. "By taking the time to document thoroughly and describe what he relied upon for his own treatment plan, he was able to avoid being added to the ultimate lawsuit," says McCaig.
• Cases in which there is evidence that the physician was acting in the patient's best interest.
"We look for cases where there is malpractice, plus other conduct that shows that the healthcare practitioner was acting inappropriately because of concerns other than the health of the patient, such as arrogance, rushing, factory-type medicine, and systemic failures," says Levin. (See related story, p. 22, on obtaining an early analysis from an expert.)
- Jennafer Groswith, JD, Wilson Elser Moskowitz Edelman & Dicker, Dallas. Phone: (214) 698-8074. Fax: (214) 698-1101. Email: firstname.lastname@example.org.
- Steven M. Levin, JD, Levin & Perconti, Chicago. Phone: (312) 332-2872. Fax: (312) 332-3112. Email: email@example.com.
- Joshua M. McCaig,JD, Polsinelli Shughart, Kansas City, MO. Phone: (816) 395-0651. Fax: (816) 374-0509. Email: JMcCaig@Polsinelli.com.