Wednesday, May 23, 2007

Dealing with medical malpractice in court

Register Citizen Staff
The serious illness, injury or death of a loved one - or of oneself - is one of the most draining experiences that most people ever face. These feelings are only made worse when you begin to suspect that the doctor or hospital may not have done all they could to help the situation, or that something done by a health care provider may have actually caused the injury or death.
About 80,000 people die in the United States each year due partly to medical malpractice, according to an study entitled "Patients, Doctors and Lawyers: Medical Injury, Malpractice Litigation, and Patient Compensation in New York," published by the Harvard Medical Practice Study in 1990 and cited by the Consumer Action and Information Center of Hawaii.
Only about 2 percent of those injured by physicians' negligence seek compensation through a lawsuit, according to a 1991 article in the New England Journal of Medicine also cited by the group.
The first thing you should do if you think you have experienced medical malpractice, according to attorney Andrew Groher of the Hartford, Conn.-based law firm Riscassi and Davis, is retain a lawyer to help you sort through the complexities of the case, and to determine if you have a case worth pursuing in court.
"It's even hard for us [to determine what is and isn't malpractice]," Groher said. "That's why we use consultants from the health care field concerned."
Groher stresses that you do not have to come to the lawyer's office armed with sheafs of damning evidence in order to have a successful case.
"People come to us sometimes with nothing more than benefit statements," he said. "Or they just come in and tell us their story, or their loved one's story."
He warns, though, that you do not have an unlimited timeframe to file suit if you think you have been injured by medical negligence, stating that the statute of limitations is usually two years from the time you reasonably should have discovered the malpractice, and no more than three years from the date of the actual alleged negligence.
Another concern is how long a case takes to bring to fruition, from the time you go to a lawyer until the case has come to a conclusion in court. According to Groher, a case can take anywhere from one year in an area with less crowded court dockets, up to two to three years in a large city or other area with very busy courts.
"A year is optimistic," Groher said.
Medical malpractice also has another side, however. A February 2006 study, prepared by PricewaterhouseCoopers for America's Health Insurance Plans and cited by the Insurance Information Institute, found that medical liability costs and defensive medicine account for 10 percent of medical care costs. Defensive medicine is when doctors order tests and medicine, or make referrals to specialists, that they do not really feel are necessary, in order to protect themselves from being accused of negligence.
An obstetrician in Florida, one of the states with the highest premiums, may pay up to $260,000 per year on malpractice insurance, according to William G. Plested, President of the American Medical Association.
According to Plested, high premiums regularly drive doctors who have never been accused of malpractice out of business, because they cannot afford to swallow the cost anymore. It compels other physicians to go without any malpractice insurance, which is not actually required to practice.
If you are injured through negligence by a doctor who has no malpractice insurance, you can go after their assets, but doctors who are doing so will typically be employing a number of dodges, such as having all their accounts in their wife's name or putting assets overseas, Plested said.
However, Plested stresses that this is not the main problem.
"The whole system is upside down," Plested said. "It goes after the most qualified people we have."
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