Great article about medical malpractice claims written by Demetrius Cheeks while interviewing Jason Konvicka, a partner in the Virginia-based law firm of Allen, Allen, Allen & Allen.
“10 Things You Want
To Know About Medical Malpractice
By Demetrius Cheeks
Fact: According to the Journal of the American Medical
Association (JAMA), medical negligence is the third leading cause of death in
the U.S.—right behind heart disease and cancer.
In 2012, over $3 billion was spent in medical malpractice
payouts, averaging one payout every 43 minutes.
Alarming, right?
But there are things that you can do to avoid becoming an
unfortunate part of these statistics—to be your best health-care advocate.
Jason Konvicka, a partner in the Virginia-based law firm of Allen, Allen, Allen
& Allen, should know.
Named as one of the state’s “Super Lawyers,” the seasoned
trial attorney has won some of the largest personal-injury awards on record in
the state, and recently secured the largest malpractice award in Virginia state
court history.
LearnVest sat down with Konvicka to discuss troubling trends
in medicine and hear his advice on how people can lessen their risk of
encountering medical malpractice.
LearnVest: For
starters, what’s the legal definition of medical malpractice?
Jason Konvicka:
Medical malpractice occurs when a health-care provider deviates from the
recognized “standard of care” in the treatment of a patient. The “standard of
care” is defined as what a reasonably prudent medical provider would or would
not have done under the same or similar circumstances. In essence, it boils
down to whether the provider was negligent.
How do you determine
if someone is the victim of medical negligence?
A malpractice claim exists if a provider’s negligence causes
injury or damages to a patient. However, experiencing a bad outcome isn’t
always proof of medical negligence. Also, on occasion, health-care providers
will inform a patient that the person has received negligent medical care from
a previous health-care provider and—presumably in an effort at complete
honesty—will sometimes tell a patient that they, themselves, have made a
mistake.
Another motivating factor: A quick, honest “apology” might
prevent a future claim, or provide an opportunity for a settlement without the
need for litigation. Insurance companies typically want to settle with an
injured person directly if they can, and this allows them to do so before the
full extent of injuries are known, as well as preventing the injured person
from hiring an attorney who could increase the settlement value of the claim
through their representation.
It’s vital to note, however, that the prosecution of medical
malpractice cases— in addition to having a high likelihood of failure—can be
extremely expensive, stressful and time-consuming. It’s estimated that medical
errors kill roughly 200,000 patients in the U.S. each year. Yet only 15% of the
personal-injury lawsuits filed annually involve medical-malpractice claims, and
more than 80% of those lawsuits end with no payment whatsoever to the injured
patient or their survivors.
Consequently, most experienced medical malpractice attorneys
will not pursue a case unless the injuries and damages documented in the
records— after they’ve been reviewed by an expert in the pertinent
specialty—are substantial and justify it.
What should you do if
you suspect that you’ve been subjected to negligent care? Is there a statute of
limitations?
Contacting a seasoned malpractice attorney should be the
first step. A thorough review of the case details—this includes everything from
securing pertinent medical records to interviews with the patient, family
members and friends—should be conducted by the attorney to determine whether the
case is actionable.
Statutes of limitation—deadlines by which a lawsuit must be
filed or be permanently barred—differ from state to state, as do the procedural
requirements that must be met before a medical-malpractice lawsuit is filed.
It’s always best to seek guidance from an attorney licensed in the state where
the alleged malpractice occurred.
What can patients do
to lessen the likelihood that they’ll experience medical malpractice?
Being proactive about medical care is undoubtedly the best
step. Patients should do research to understand their health condition, and
document their symptoms. They should ask health-care providers a written list
of questions that they feel are important, and expect—indeed, demand—full and
complete answers.
It’s also critical not to allow yourself to be intimidated
by the medical system. Speak up and advocate for your own well-being. If
patients sense that something is wrong, they should tell—or ask—their
health-care providers. Although it’s important to trust your doctor or nurse,
it’s also important to listen to your body ... and use common sense. Also
advisable: Have a family member or friend accompany you on important visits to
health-care providers.
In your 20 years of
practice, have you detected any shifts in the handling or perception of medical
malpractice?
Proponents of “tort” or “malpractice” reform often argue
that there are too many medical-malpractice claims. In reality, the number of
claims is declining.
Despite this, the perception of “lawsuits gone wild” exists.
As a result, many states have imposed substantial limits on damage awards in
medical-malpractice claims. These award limits typically have the greatest
impact on patients who are most gravely hurt—those with catastrophic injuries
and a lifetime of future medical needs. And patients who are denied justice in
the courts must rely on health insurance and, in many instances, such public
programs as Medicare or Medicaid to pay their future medical bills—leaving the
cost of medical malpractice to the public instead of the responsible party.
What are some of the
most common reasons why legitimate medical-malpractice claims go unexplored?
Patients choose not to pursue valid medical-malpractice
claims for numerous reasons: Some are concerned that other doctors will learn
of their cases and refuse to treat them. Some fear—incorrectly—that it will
lead to an increase in the cost of their medical care. And others forgo valid
claims due to the perceived personal and financial costs associated with
litigation.
Are there certain
medical procedures that are consistently at the root of medical-malpractice
suits?
In my experience, it’s the health-care provider’s mental
state more than the type or severity of a given procedure that’s relevant to
whether a mistake occurs. Complacency often leads to errors. Likewise, “tunnel
vision,” or the failure to look at the big picture, can also lead to medical
mistakes.
What types of cases
have been the most illuminating for you?
Although the medical school adage of “treat the patient and
not the test” has value, it’s also important for health-care providers to
carefully assess the information provided by the tests that they order. I’ve
witnessed many instances in which highly abnormal test results were either
interpreted incorrectly or disregarded by physicians—sometimes with fatal
consequences.
Have your experiences
as a malpractice attorney affected your perception of doctors?
If anything, I have more respect for physicians and the
challenges that they face. However, I don’t believe that doctors should be
treated differently than others when they make mistakes that cause serious harm
to patients.
With regard to the medical establishment, I’m a bit more
jaded. Hospital systems and health-insurance companies significantly impact the
quality of medical care that patients receive, and, in my opinion, that impact
is not always for the best.
Any final parting
words of advice?
Don’t be afraid to get a second opinion! And don’t be afraid
to find a new doctor if you don’t feel that you’re receiving proper medical
care. Your health is too important to place in the hands of a provider who
hasn’t earned your confidence, isn’t answering questions or isn’t giving you—or
your condition— adequate time and attention.
