Posted by Bill Sandweg on 28 June 2021.
People die in hospitals. It is a fact of life. Sometimes they die in spite of the very best medical care that we have to offer. Sometimes, however, they die because they did not receive the care they should have. Sometimes they die because of medical malpractice.
If you have lost a loved one to a hospital death, please accept my condolences. It is never a happy event. Sometimes, the death has been expected for a long time. Sometimes, however, it comes as a great shock. Some of the ones that come as a great shock should not have happened. They are the result of medical malpractice. The number of annual hospital deaths that are the result of avoidable medical mistakes has been variously estimated to be as low as 22,000 and as high as 250,000. One thing I can tell you is that, if your loved one died because of medical malpractice, no one at the hospital is going to tell you. You will have to figure it out on your own.
I review many hospital deaths in my practice. Prospective clients come to me and ask whether their loved one died because of medical malpractice or not. One of the first questions I ask is whether there was an autopsy. If there was not, it will be very difficult to prove that the death was due to medical malpractice.
It doesn’t matter what the death certificate says. It doesn’t matter what the diagnosis was in the medical records. If we file a lawsuit, the defendants will offer expert witnesses to say that the death certificate was wrong and so was the diagnosis in the chart or, even if the diagnosis in the chart was correct, that was not the cause of death. The cause of death according to these experts is always something completely unrelated to the defendants. If you are thinking that there may have been a medical error involved in the death of your loved one, you will almost always need an autopsy to prove it.
The autopsy is, of course, only the first step. It may or may not conclusively establish the cause of death. Even if it does, the question will be whether the death was the result of malpractice. To answer that question, you are going to need to collect the medical records.
The first place to start is with the hospital chart. You are entitled to a copy of the chart, if you are a spouse, hold a medical power or other power of attorney or are the son, daughter or parent of the deceased. Make them give it to you on a disc so you don’t have to pay for copying. If your loved one was receiving active treatment before the hospitalization, get the records of those doctors as well.
You can count on the doctors presenting a united front and denying the existence of any mistakes. From their point of view, it is in no one’s best interest to criticize a fellow physician. The committees that run the hospital are made up of the doctors who practice there. Speaking ill of another doctor in the hospital is a good way to make enemies and enemies in a hospital setting can destroy doctor’s ability to practice at the hospital. Better to go the “hear no evil, see no evil” route.
It can be a little different with the nurses. In medical malpractice cases, the nurses are expendable. Often the doctor’s defense is that the nurse, who was at the bedside, failed to keep the doctor informed of the patient’s condition. There is no penalty for a doctor who blames the nurses and they do it frequently. On the other hand, nurses will rarely blame the doctor. They may testify that they did keep the doctor informed but they won’t go out and throw the doctor under the bus, unless the doctor makes their conduct an issue in the first place.
Once you have all of the records, take them and the autopsy report to an experienced medical malpractice attorney. You will need someone who knows how to read medical records, understands anatomy and medicine, and has access to good expert witnesses to offer opinions about the care given and its relationship to the death.
One more word of caution, just because a lawyer says she or he is an experienced malpractice lawyer doesn’t make them one. The really good malpractice lawyers tend to concentrate on medical malpractice and a few other complex areas of personal injury. An attorney who claims to be an expert in many areas is probably an expert in none. Go to the attorney’s web site and review their qualifications and their areas of practice. You can learn a lot.