Medical Malpractice News and Views

Welcome to our blog where we discuss current issues in medicine and law. We welcome your comments.

Just Because A Doctor Says It . . .

September 23, 2019

There is a saying no patient should ever forget, “Just because a doctor says it, doesn’t make it true.”  As I have often remarked before, medicine is a business, and a big one at that, and we are its customers.  Doctors sell us their services.  While most doctors have their patient’s best interests at heart, there are those who are in it for the money and want to sell as much product as they can.  A good example can be found in a recent story which appeared in the Wall Street Journal.

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Heart stents used to be a big money maker for some doctors.  They were placing them even though the science did not show that they were effective in treating coronary artery disease.  Over time, the medical consensus that they were not effective became so strong that the number of coronary artery stents being placed declined significantly.  However, much like the old “whack-a-mole” game, stents have now popped up in a new location.  Now some doctors are unnecessarily placing stents in leg arteries and risking the health of their patients by doing so.

When placed in leg arteries, stents are a form of peripheral vascular intervention.  Another aggressive intervention in the legs is an atherectomy, which is a procedure to remove plaque from an artery.  Both procedures address plaque deposits in arteries of the leg.  Almost every person in the United States who is 80 years old has some plaque deposits in the arteries of their legs.  It is only when those deposits become large enough to interfere with blood flow and cause pain that intervention should be considered.  Some doctors don’t want to wait that long.

The WSJ story was based on a study published in the Journal of Vascular Surgery which found that some physicians were placing stents in leg arteries and removing plaque at rates 4 to 5 times the national average.  The authors of the study examined Medicare records to determine the rates at which various doctors performed the procedure and discovered the large discrepancy between the average doctor and about 320 physicians, who were far more aggressive.  One doctor, who was part of the research team, went so far as to write a letter to the Centers for Medicare and Medicaid Services in which he claimed that these “outlier” physicians “may represent a serious and immediate threat to public safety.”

According to research on the subject, patients who have early leg pain due to narrowing of arteries in the leg have a 1% to 2% risk of limb loss in the next five years.  Aggressive procedures increase that risk to 5% to 10% because they may create blockages in narrow arteries or cause treated arteries to rupture.  The Society for Vascular Surgery has published guidelines which recommend these types of aggressive interventions only after patients who have leg pain when they walk have failed medical and exercise therapy and are experiencing symptoms which limit their activities.

The president of the Society for Vascular Surgery has offered the opinion that patients with leg pain who make positive lifestyle changes may never need aggressive vascular interventions or, if they do, can put them off for many years.  As he notes, the later in life a patient needs an aggressive peripheral vascular procedure, the better.

Be an informed consumer.  Get second opinions.  When a doctor recommends surgery or an operative procedure, ask about less aggressive, less invasive alternatives.  Ask about your doctor.  Look at her or his record at the state Medical Board.  Ask how often he or she performs the procedure being recommended and what the complication rate has been.  You can never guarantee that you won’t be victimized by the medical profession but you can give yourself the best chance of a good outcome by being careful and asking questions.

Posted in Arizona Medical Board, Blood Clots, Doctors, Fee for Service, health, Health Care Costs, healthy living, Medical Costs, medical ethics, Medical Malpractice, Medicare |

Staggering Malpractice at the VA

September 16, 2019

A Veterans’ Administration pathologist sits in jail today.  He is charged with three counts of involuntary manslaughter in the deaths of three veterans who sought treatment at the VA hospital in Fayetteville, Arkansas.  Investigation has revealed that he routinely misread pathology studies submitted to him.  It is believed that his misdiagnoses led to the death of at least 15 patients and seriously harmed many more.  The malpractice went undetected for at least 14 years.

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The obvious question is, “How could this have happened?”  The results of the investigation do not provide a good answer.  The pathologist, Dr. Robert Levy, was an alcoholic and an addict.  He was often impaired at work.  He used a liquid agent which gave him a quick and powerful high but was undetectable on routine drug and alcohol tests.  To cover up his mistakes, he altered patient records.

There were red flags flying for Dr. Levy all over the Fayetteville hospital.  He had a DUI before he was hired by the VA.  He was discovered to be impaired on arrival at work on two documented occasions years before the extent of his malpractice became known.  In spite of this, no one investigated his work.  He was even given performance bonuses for having an exceptionally low error rate.  In fact, later investigation showed that his actual error rate was 10%, an astonishingly high number.

This is particularly distressing when you remember that he was often asked to look at a specimen and determine if it was cancerous or not.  On some occasions, Dr. Levy reported that cancer was not present when it was while on other occasions he reported that cancer was present when it was not.  Patients who were assured they did not have cancer died when their cancers went untreated.  Patients who were told they had cancer when they did not underwent debilitating radiation and chemotherapy treatment, which was completely unnecessary.

Dr. Levy was the Chief of Pathology at the hospital.  Following routine practice, Dr. Levy regularly reviewed a certain number of the tissue and fluid samples analyzed by his subordinate to make sure the diagnosis was correct.  His subordinate reviewed a certain number of his for the same reason.  These reviews showed an extremely low error rate by Dr. Levy, an error rate which sometimes reached zero.  Later investigation revealed that Dr. Levy was using his position as Chief of Pathology to alter the reports of his subordinate and make it look like the subordinate agreed with Dr. Levy’s diagnoses.

While this is an outrageous case, it has a lot in common with other, less outrageous cases.  Hospitals are just not very good at discovering impaired or incompetent physicians.  Nurses, staff and even other doctors assume that their colleagues are competent and unimpaired.  Doctors who have addictions are often very good at hiding their tracks.  As always, patients need to be proactive and informed about their health care.  Ask questions and be sure to get satisfactory answers.  Don’t be afraid to get a second opinion when told you do or don’t have a significant medical condition.



Posted in Cancer, disclosure of medical mistakes, Doctors, Fraud, Hospitals, medical errors, Medical Malpractice, medical mistakes, Medical Negligence, Misdiagnosis, Nurses |

Lawyer Loses Her Race Against Cancer.

September 09, 2019

A Baltimore attorney lost her race against breast cancer last week.  She also lost her chance to have her medical malpractice case decided before she died.  Attorney Katrina Dennis claimed that her surgeon failed to properly advise her when he operated to remove her breasts due to a finding of a cancerous lump.  There was cancerous tissue left behind on the chest wall.  Ms. Dennis alleged that her surgeon should have referred her to an oncologist and that she should have been given an anti-cancer drug to kill off the few remaining cancer cells.  Neither of those things happened.  Two years later, she went to urgent care with pain in her back.  The breast cancer had gone unchecked and had spread to her bones and vital organs.


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Ms. Dennis brought suit but, by the time the trial began, she was in the hospital in terminal condition.  She died during the first week of trial.  She was only 40.

Her fate is shared by many cancer patients who believe that their cancers were misdiagnosed or not treated appropriately.  By the time the medical mistake is recognized, the cancer has spread to other parts of the body and the race is on to get the case filed and resolved before death takes the patient.

These are always challenging cases for a malpractice attorney.  Once the patient becomes a client, the attorney must do everything she or he can to move the case along and get it resolved before the patient dies.  This includes taking a videotape deposition of the patient as soon as possible after filing.

The attempts to accelerate the case are always resisted by the defense and sometimes for good reason.  Speeding the case up can prejudice the defendants by forcing them to respond and go to trial before they have had a fair opportunity to discover all the relevant facts.  On the other hand, were the court to require the defense attorneys to give the patient’s case priority, the necessary preparation could be done in a much shorter time than the defense requests.

Sometimes though, I am forced to wonder if the delays requested by the defense are sought in good faith.  Everyone involved in the case knows that the patient is dying.  We all also know that the case is far less valuable if the patient has passed away than if she is still alive at the time of trial.  The difference in the verdict can be many millions of dollars.  Juries are often quite sympathetic to a patient who has only a few more months to live.  I cannot help but think that the defense lawyers and the insurance companies recognize that time is their friend and push for more of it than they actually need to prepare their case for trial.

It is important for a patient who believes that his or her cancer was not diagnosed properly or not treated properly get to a lawyer as soon as possible.  The clock is running and no one can predict how soon death will come calling.  If the patient is to receive any compensation at a time when they can still use it, suit must be filed quickly and pushed hard.  Understandably, the shock of the diagnosis and the desire to get aggressive treatment usually take precedence and going to see a lawyer is well down the list of things on the mind of a cancer patient facing a terminal diagnosis.  That said, it is important for a malpractice victim to contact a lawyer promptly, if she or he wants any chance at justice.


Posted in Breast Cancer, Cancer, Doctors, Lawsuits, medical errors, Medical Malpractice, Medical Malpractice Case Value, medical malpractice lawsuits, medical mistakes, Medical Negligence, Misdiagnosis, plaintiff, trial |

Misdiagnosis: The Most Common Form of Malpractice

September 02, 2019

A recent article in the peer-reviewed medical journal Diagnosis concluded, “[D]iagnostic errors remain the most common, most catastrophic, and most costly of serious medical errors . . . .”

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The researchers were from Johns Hopkins University School of Medicine and from CRICO Strategies, an insurance program affiliated with the Harvard medical institutions.  They dug into closed insurance files representing a large portion of all malpractice claims in the United States over a recent ten year period.  They found that nearly three-fourths of serious misdiagnosis-related harms occurred in just three major categories – vascular events, infections and cancers.  They concluded one-third of all malpractice claims that result in death or permanent disability were the result of a misdiagnosis or a delayed diagnosis.  There are over 10,000 known or recognized diseases but only a few symptoms or signs lead the way to each one.  There are often overlaps in the signs and symptoms.  Given the complexity of the problem, it is perhaps understandable that mistakes are made.

Another conclusion the researchers drew from the malpractice data was that over 84% of misdiagnosis claims were the result of clinical judgment failures.  They believe this means there is room for significant improvement in reducing misdiagnosis injuries by improving diagnostic decision making for only a relatively small number of high-risk conditions in just a few clinical settings.

The researchers found that most of the diagnostic process failures occurred during bedside assessments and in clinical reasoning arising from knowledge gaps on the part of the physician.

When a patient develops a cancer and it begins to produce symptoms, more often than not, the patient seeks treatment at an outpatient, ambulatory facility.  The patient may return on a number of occasions over time.  Because of the nature of these outpatient visits and the fact that the patient may see a number of different providers on these visits, they create an increased risk of missed communications and discontinuous care that lead to a missed or delayed diagnosis.

We patients have a role to play in improving diagnostic accuracy and avoiding some of the causes of a missed or delayed diagnosis.  The Society to Improve Diagnosis in Medicine (SIDM) recommends that patients ask the following questions of their health care providers:

  1. What is my diagnosis? What else could it be?
  2. Why do you think this is my diagnosis? From test results? From my physical exam?
  3. Can you give me written information about my diagnosis? A pamphlet? A website?
  4. Can you explain the test or treatment you want me to have?
  5. What are the risks to the test or treatment you want me to have? What happens if I do nothing?
  6. When do I need to follow up with you?
  7. What should I do if my symptoms worsen or change, or if I don’t respond to treatment.

They also recommend that you always ask when your test results will be ready and call if you do not receive them.  Do not assume that no news is good news, always call.  Ask for your records and keep copies of your test results.  Play your part to avoid being the victim of a misdiagnosis.

Posted in blood infections, Cancer, Doctors, General Health, Infection, Lawsuits, Lung Cancer, medical charts, medical errors, Medical Malpractice, Misdiagnosis, Sepsis, Stroke |

Another Large Malpractice Verdict – Part II

August 26, 2019

Last week I wrote about what was the largest medical malpractice verdict in Maryland history.  A young girl, now almost 5, was born prematurely with profound brain injuries as the result of a delay in delivery.  Her attorneys argued that the hospital should have done a Caesarean section when the 16 year-old mother arrived at the hospital with dangerously high blood pressure.  The hospital attorneys claimed that the young mother refused the Caesarean section when they offered it to her on arrival.  The jury, perhaps swayed by the tragic birth injury, sided with the child and awarded $229 million against the hospital.  Most of that money was for future care.  Maryland has a cap on non-economic damages resulting from medical malpractice so the young child can only recover $800,000.00 for her pain, suffering and loss of the ability to have a meaningful life.  The imposition of the malpractice cap will reduce the award to around $200 million.  Then will come the post-trial motions by the hospital and the inevitable appeals.

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An excellent article appeared after the verdict in the Baltimore Sun discussing the verdict and suggesting that not much will change because of it.  The article made a number of interesting points.

The little girl will never get the money the jury awarded to her.  The judge will reduce that portion of the verdict that exceeds the Maryland cap for non-economic damages in malpractice cases.  There goes about $29 million.  The little girl must pay her lawyers for their work and reimburse them for the costs they advanced to bring the case to trial.  Because of the risks involved and the complexity of the work, contingent fees in medical malpractice cases are usually in the 40% range.  These reductions are certain.  Less certain but extremely likely are reductions in the award either by the trial judge or by the appeals court.  Instead of simply reducing the verdict to numbers they consider more reasonable, the trial court and the appeals court may decide that the verdict was so influenced by sympathy that the hospital should get a new trial.  If that happens, the little girl goes back to square one.

Patients in malpractice cases lose far more often than they win.  According to the American Medical Association itself, 68% of malpractice claims are either dropped or dismissed by the court.  Only about 7% end up being tried and doctors win almost 90% of the cases that go to trial.

Malpractice claims and judgments are not driving doctors out of practice.   According to a study, 90% of doctors with five or more malpractice claims against them continue to practice medicine.  I discussed the problem of bad doctors continuing to practice in a blog post back in May.

Obstetrical cases generally resulted in higher settlements and verdicts than other forms of malpractice.  This is almost certainly the result of the cost of future care for those babies who are damaged at birth due to medical malpractice.  Even then obstetrics payouts in Maryland only averaged $1.13 million in 2018.  Payouts in surgical cases averaged $737,000 and the average for all non-obstetric cases was only $477,000.  These disparities are likely driven by the increased economic costs of providing care to a damaged baby over the course of his or her life.

As I noted above, the jury’s verdict is not the end of this case.  Assuming the parties do not settle the case at this stage, and that sometimes happens, there are likely many more years of litigation to go for this young girl before she sees any of the money awarded her.



Posted in Birth Injuries, Cesarean Section, Doctors, Hospitals, Informed Consent, Lawsuits, Malpractice caps, Malpractice costs, Medical Costs, medical errors, Medical Malpractice, medical malpractice claims, medical malpractice damages caps, medical malpractice lawsuits, medical mistakes, Medical Negligence, plaintiff, trial, Verdicts |

Another Large Malpractice Verdict

August 19, 2019

Recently a Baltimore jury awarded just over $229 million in a case involving a birth injury.  If that is all you know, you can fill in a lot of the other blanks automatically.  You will know that, as in the Baltimore case, the infant was likely profoundly damaged.  You will know that, as in the Baltimore case, the child was likely to need expensive medical care for the rest of her life.  You will know that, as in the Baltimore case, the case is a very sad one.  Lastly, you will know that, as in the Baltimore case, the defense is likely to appeal.

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Birth injury cases are almost always sad.  What everyone hoped would be a joyous occasion turned out to be a catastrophe that no one wanted and for which no one will usually accept responsibility.

In the Baltimore case, the mother was only 16 at the time of her daughter’s birth.  When she arrived at the hospital she was only 25 weeks of gestation (full term is 40 weeks) and she was suffering from pre-eclampsia, a condition in which the mother’s blood pressure is dangerously high.   Only about half of babies born at 25 weeks survive.  At trial, the mother claimed that the hospital should have given her an immediate Caesarian Section to save her baby’s life and give her the best chance of being born healthy.  Instead, the doctors induced labor and it went on for 22 hours.  During that period of time, the baby did not get enough oxygen and suffered brain damage in the form of cerebral palsy.  She cannot care for herself, her head is too small (microcephaly) and she suffers seizures and is often in pain.

The hospital claims that it offered the mother a Caesarian Section when she arrived but she refused and by refusing “tied the hands” of the hospital.  It had no alternative, it claimed, other than induction of labor and a vaginal delivery.  The mother admits that the doctors offered her a C-section but says she refused when they told her if she had a C-section, her baby would either be born dead or be brain damaged.  Needless to say, the hospital denies telling that to the mother.

This case is not over.  Big verdict cases are almost never over after the jury returns its verdict.  The hospital and the doctors will file post-trial motions asking for judgment in their favor notwithstanding the jury’s verdict or for a new trial or, in the alternative, for an order reducing the amount of the damages.  If they are not successful with the trial judge, they will appeal and seek either a judgment in their favor or a new trial.  Very frequently, during the long post-trial process, the parties will agree to a settlement.

Based on the experience of the past, it is highly unlikely that the badly damaged little girl will ever get to keep all the money the jury awarded her.  This is not a good system for either patients or health-care providers.

Posted in Birth Injuries, Cesarean Section, Doctors, Health Care Costs, Hospital Negligence, Hospitals, Informed Consent, Lawsuits, medical errors, Medical Malpractice, trial, Verdicts |

Technology Comes For The Humble Stethoscope.

August 12, 2019

Two hundred years ago, a Frenchman invented a tube with which he could listen to heart and lung sounds.  This was the first stethoscope.  Heart disease is one of the major causes of death throughout the world.  Often the abnormalities that are part of heart disease make sounds that give them away to a trained listener using a stethoscope.  Among the defects which can sometimes be heard through use of a stethoscope are diseased heart valves, certain heart arrhythmias, congestive heart failure, hypertensive disease, some structural heart disease.  Much of the effectiveness of the stethoscope depends, however, on its use in a quiet environment and the skill of the health care provider doing the listening.  Technology promises to change all of that and make the stethoscope a more effective tool for detecting disease and identifying treatments.

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There is no shortage of ideas about how to improve the stethoscope by taking advantage of today’s technology.  Start ups are incorporating artificial intelligence, algorithms, visual displays, recording devices, and direct internet connections.  If you can think of it, so have they and long before you did.  For the sake of simplicity, let’s call these new devices “digital stethoscopes.”

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First and foremost, the various digital stethoscopes convert sound into electronic signals which can be amplified to a comfortable level.  This lessens the need for a quiet room which is necessary to hear the soft sounds often required for diagnosis.  Some of the digital stethoscopes also use noise cancelling technology.

In programming the digital stethoscope, manufacturers can take advantage of large data sets of patients with heart or lung disease and the sounds associated with those conditions.  They can also receive and make a record of the electrical signals of the heart in the same way that an EKG does.  In some very promising studies, the digital stethoscopes were able to diagnose heart and lung problems with greater accuracy than even highly experienced cardiologists and pulmonologists.  In one study conducted by a manufacturer, it reported that its digital stethoscope recognized heart murmurs in children more often than five trained pediatric cardiologists using stethoscopes.

One of the advantage of the digital stethoscope is that it can “hear” sounds that are outside the ability of the human ear to recognize.  These are important sounds which cannot be heard by even the most talented and skillful human examiner using a traditional stethoscope.  These previously unheard sounds will open new avenues for diagnosis.

In some cases, the new digital stethoscopes were able to detect pre-cursor sounds that indicated a problem was developing that could not be detected yet with other testing.  Many of the stethoscopes allow their results can be stored and shared among physicians.  Even the Apple watch now has a feature that can record and recognize some abnormal heart rhythms.

Digital stethoscopes are going to be part of the telemedicine revolution.  They will allow health care providers in low resource areas to use algorithms for diagnosis and treatment.  They will allow the same providers to communicate and consult with specialists in high resource areas.  Even in high resource areas, they will lead to earlier and more accurate diagnoses which will lead to earlier and hopefully more successful treatment.

Next time the nurse practitioner tells you she wants to listen to your chest, she may be holding a digital stethoscope.  Count this as one of the good results of technology and take a deep breath for her.



Posted in Doctors, General Health, health, heart attack, Medical Costs, Medical Devices, medical errors, medical research, Misdiagnosis, science news |

Hospitals and the Weekend Effect

August 05, 2019

The weekend effect is a recognized phenomenon in the medical world.  You and I aren’t the only people who like to have some time off on the weekends.  So do doctors and nurses and the many other workers who are necessary to make modern hospitals run.  Oftentimes, it is the most senior, most experienced doctors, nurses and employees who get the time off.  Guess who that leaves minding the store on the weekend?

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Hospitals address this problem by slowing down on the weekends.  Generally speaking, elective procedures or admissions will not be scheduled for the weekend.  Urgent or emergency procedures or admissions have their own schedules and account for most of the weekend admissions at hospitals.  All of this has implications for you as a potential hospital patient.

First lesson to be learned from this is avoid being in the hospital on the weekend, if at all possible.  Holiday weekends are the worst in terms of the care received.  Weekend patients are likely to find lower staffing levels everywhere in the hospital.  Fewer scheduled patients means the hospital doesn’t need as many people there to care for them.  More staff may be in an on call situation, ready to come to the hospital, if called.  All this means that patients may not get the care they need as quickly as during the week when the full staff is present and ready to go.  The Weekend Effect has been linked to a higher risk of death, a higher rate of infection and higher rates of significant bleeding.

In one study the Weekend Effect was examined in the context of pediatric surgery.  The researchers found that children undergoing surgical procedures on the weekend had a higher risk of death, of requiring a transfusion and of other procedural complications than children undergoing the same procedures during the week.

The second lesson is that, whenever possible, get your procedure or admission scheduled earlier in the week.  This will reduce the chance that you will find yourself still in the hospital on the weekend.  It also means that you arrive before the hospital gets filled up with patients.  The hospital gets filled up because it also wants its patients out the door before the weekend so it doesn’t have to keep so many people on duty caring for them.  The middle of the week is therefore the busiest time at most hospitals.  This has often been described as hospital gridlock when the services are overtaxed.  The busiest time is when things can go wrong as doctors and nurses have many demands on their time and tests and studies take a long time to accomplish.  A study also found increased mortality when patient turnover was high with transfers, admissions and discharges, presumably because these events took the nurses away from their duties caring for their patients.

We can’t control our need for urgent or emergent medical care but we can control when we go to the hospital for elective procedures.  When planning an elective procedure, select your doctor wisely using some of the guidelines I have discussed in other posts and try to get your procedure scheduled for Tuesday (best) or Monday.

Posted in Doctors, health, Hospital Negligence, Hospitals, Infection, medical errors, Nurses |

Improving Hospital Care

July 29, 2019

Anyone who has ever been a hospital patient or who has had a loved one in the hospital has seen errors in care.  They occur on almost a daily basis and they come in all shapes and sizes.  Modern medical care is complex and involves many participants.  Human nature being what it is, errors are certain to occur.  Our goal should be to keep errors to the smallest number possible.

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In a landmark study, To Err is Human: Building a Safer Health System, researchers at the Institute of Medicine estimated that between 44,000 and 98,000 patients die in hospitals in the United States each year as the result of preventable medical errors.  That is a shocking number.  While firm figures are naturally hard to come by, other studies have supported these general numbers.  Some have even concluded that these numbers greatly underestimate the magnitude of the problem.  Why are firm figures hard to come by?  The answer is that very few health care providers are willing to admit they made a mistake which caused patient injury, much less one which caused a patient death.

To their credit, most hospitals today are trying to improve patient care by reducing the number of errors.  They have created policies to avoid some of the most common errors.  For example, most hospitals insist on a “time out” just prior to the commencement of surgery to double check that they have the right patient, the right procedure and the right body part.  Another example is a system of checks to assure that providers wash their hands before every patient encounter.  Most hospitals also have Morbidity and Mortality conferences at which cases are discussed to try and learn from what happened.  While well-intentioned, these conferences don’t always work as well as they could.

The problem, of course, is that meaningful change and improvement cannot happen if everyone pretends that things are fine the way they are.  Things are not fine the way they are but health care providers have a great many reasons for keeping their errors hidden.

In the first place, no one enjoys admitting they made a serious mistake.  Admitting a mistake for a doctor can mean a loss of hospital privileges and a loss of privileges will almost certainly mean embarrassment and a loss of income.  Admitting a mistake can also lead to Medical Board discipline, which can range from a simple letter of concern to loss of one’s medical license.  Then, of course, admitting a mistake can lead to an expensive malpractice suit, even though such admissions are generally not admissible in the Arizona courts.

Progress is being made.  It is slow but steady.  On the other hand, medicine continues to become more complex and, while one avenue for error is being closed off, another one may be opening.  We all just have to keep trying.


Posted in Arizona Medical Board, disclosure of medical mistakes, Doctors, Hospital Negligence, Hospitals, Lawsuits, medical errors, medical ethics, Medical Malpractice, medical malpractice claims, medical mistakes, Medical Negligence, Nurses, Secrecy, Surgical Errors |

Settling The Wrongful Death Case

July 22, 2019

Most of the cases I handle involve significant and terrible injuries.  No case, however, involves more misery and sadness than a wrongful death case.

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I never get to meet the deceased person.  I meet the loved ones they left behind.  As part of my job, I try to bring the person back to life for the defendants and the insurance companies and, if necessary, for the jury.  No matter how hard I work, however, the best I or anyone can do is create a pale shadow of the person who has passed.  The deceased has left a hole in the lives of those who knew and loved her.

When the time comes to settle a wrongful death case, the family is forced to remember and, to a certain extent, relive the death of the loved one.  This makes it a difficult time.  However, it is important for the case to end because, in my experience, whatever healing the family will be able to do, they won’t really be able to begin the process until the case is over.

Before we sit down to try and settle the case, I have to help the family understand the process.  There are some important rules and considerations.  First and most importantly, the process is not about the value of the loved one’s life.  No one can place a value on the life of another.  That is impossible.  Valuing the life of the deceased is not what we do in the settlement process.  Instead, what both sides do is try to predict what a jury might do, if faced with the facts of our case.  We do this, not because we intend to try the case to a jury, but because that is where it goes if it cannot be settled.  We know it and the insurance company knows it.  The insurance company will not offer one dime more than it thinks a jury might award.  Part of my job is to analyze the strengths and weaknesses of our case and offer an assessment to my clients of what a jury is likely to do.

It is also important that my clients understand that they cannot let the settlement process be clouded by emotion.  This is understandably hard for them.  But the insurance company on the other side will not be letting itself be influenced by emotion.  It will be making cold, unemotional business decisions and the family must do the same or it will be at a disadvantage.

The insurance company has leverage that the family does not and the family needs to recognize this.  The insurance company has many cases and makes settlement decisions all the time.  The insurance company representatives are experienced professionals.  The insurance company can afford to make a mistake in this case.  If it does, it can make up for that mistake on the next five or ten or one hundred cases.  My clients, however, have only one case.  They cannot afford to make a mistake on their one and only case.

Almost every time we get into actual negotiations and the defense makes an offer, my clients will say, “But that is not enough.”  I agree that, whatever the defense offers, that amount is not enough.  It will never be “enough.”  There will never be enough money to bring back the deceased or undo what has been done.  On the other hand, asking whether an offer by the other side is “enough” is asking the wrong question.  The question should be, “How does the offer compare to what a jury might do?”

Valuing a wrongful death case is never easy.  There are many factors that must be considered, including how did the family members do at deposition, how egregious and clear was the conduct of the defendants, are there any skeletons in the closet of the deceased, how did the expert witnesses do at deposition, was there wage loss, what was the overall health of the deceased, and many others.  I also have to recognize that juries will sometimes do crazy things but most of the time juries will be in the same general ballpark.  There will usually be a range of numbers that the jury will most likely award, if they find for the family.  That range is what I call “the zone of reasonability.”  If an offer is made that is within that zone or close to it, it should be given serious consideration by the family.

The family needs to understand that in almost every case, there is a chance that the jury will find against them and for the defendants.  This is especially true in my medical malpractice wrongful death cases.  As bad as the death of the loved one was, it is devastating if the jury comes back in favor of the defendants.  It adds insult to injury.

No amount of preparation or advice by me can make the settlement of a wrongful death case easy for the family.  It is hard but, if the case can be settled, settlement is good for the family.


Posted in Lawsuits, Medical Malpractice, medical malpractice cases, medical malpractice claims, medical malpractice lawsuits, plaintiff, trial, Valuing Damages in Medical Malpractice Cases |