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How to Investigate Whether You've Been a Victim of Medical Malpractice

Written by: Patrick A Malone

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Posted over 2 years ago. 4 helpful votes, 0 comments

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Ask the caregivers non-judgmental questions about what happened.

Your first step is to find out what happened. As Joe Friday said, “Just the facts, ma’am.” This is not the time to make judgments. You don’t necessarily have to confront the main caregiver whom you fear has caused an injury. In most hospital settings, there are numerous doctors and nurses who are knowledgeable about the case and can fill in at least part of the picture. Ask them what they know. If they don’t know, ask them: • Who else should I talk to? • Do they recommend any Internet research, books, articles, etc., which can help you understand the situation? What if they won’t talk to you, or speak only in generalities, or technicalities that you can’t understand? Here’s where it helps to know your rights. The patient (or the patient’s representatives if the patient is incapacitated) has an absolute right to know what has happened to them. You can read it right in the American Medical Association Code of Ethics (section 8.12).

Ask the hospital to investigate.

You can ask the hospital to do its own investigation, especially if the injury is particularly serious. You may meet someone called the hospital “risk manager.” The “risks” they manage are mainly risks of lawsuits, and only secondarily risks to patient safety. So once the risk manager is involved, you may not learn much useful information. Unfortunately the official results of any hospital investigation are protected by law in most states from disclosure to patients or their lawyers. However, you can expect at least some explanation will be forthcoming from the hospital’s official investigation, so it might be worth trying.

Ask for an independent investigation by a health care quality agency.

It’s a waste of time to ask the local or state medical society to investigate. They have no power to do anything and are likely to side with the providers. (But sometimes the medical society will have a reasonably honest mediation service for billing disputes.) The Joint Commission, which is a project of various medical and hospital private associations, will investigate a quality of care complaint but won’t tell you the results. Government agencies which investigate complaints of poor quality health care include: • The state or local health department can investigate outbreaks of infection to find if proper sterilization procedures were followed. • The state licensing board has the power to revoke or suspend any health care provider’s license. But this is done typically only in egregious circumstances. • The local Medicare Quality Improvement Organization (QIO) can investigate quality issues if the patient is a Medicare beneficiary. You do have a right to learn their results.

Hire a lawyer – but proceed with caution.

However candid or guarded the health care providers appear to be in your dealings with them, there is only one way to get to the bottom of whether malpractice has occurred. That is to have the treatment evaluated by expert physicians of the same specialty with no connection to the treating doctors. If you have medical connections among your family or friends, you can try to do this on your own. Usually, though, people turn to lawyers to advise them and act as go-betweens in obtaining independent evaluation. The good news is that there are many highly competent lawyers who will do this initial investigation for you without charging for their time. It takes time to find the right lawyer and get the best advice. This can be frustrating, but in the long run, it's best to go slow. Rushing into a lawsuit when one is still feeling shock and anger is usually unwise. Lawsuits can linger for years and involve maddening uncertainty.

Be careful with Internet searches for a lawyer.

A Google search for “malpractice lawyer” turns up a mixture of: • Malpractice “wannabe’s.” These are lawyers who would like to grab your case and either settle it quickly for low dollars for you (but a high return for the lawyer’s time investment) or refer it out to a competent lawyer with a referral fee. • Lawyer “referral services” which screen lawyers only by their willingness to pay cash to the web site that is referring them cases. • Real lawyers who are experienced and will do a good job for you. I suggest you start with lawyer services that actually try to screen to make sure they only recommend top lawyers. These include: Inner Circle of Advocates. (www.innercircle.org); The Lawdragon 500 Leading Plaintiff Lawyers in America (www.lawdragon.com); The Best Lawyers in America (www.bestlawyers.com).

Ask questions before you hire any lawyer.

Important questions include: 1. What kind of cases does this lawyer handle on a day-in, day-out basis? 2. How long has the lawyer been working in the field in which you need a lawyer? (Bear in mind that for the same fee, you can get a lawyer with 1-2 years experience, or someone with 20-25 years of experience.) 3. Does the lawyer try lawsuits in court, or is every case settled out of court or referred to other lawyers to try? (You want a lawyer who actually goes to trial every year on cases.) 4. What is the lawyer’s track record of verdicts and settlements? 5. Does the lawyer teach other lawyers? 6. Is the lawyer a member of legal organizations that specialize in representing injured people? 7. Has the lawyer won any honors or awards? 8. Does the lawyer have the financial and personnel resources to take on my case? 9. Ask the lawyer, “Who will actually handle my case”? (Don't let bait and switch happen to you.)

If it doesn't work with the first lawyer, try again.

What if you’re reading this after the fact? You’ve already signed on with a lawyer, and now you’ve concluded that he or she is not right for you. The good news is that it’s not hard to fire a lawyer, especially if it's early in the case. If the lawyer has spent significant time and money on the case, he or she may be entitled to some share of the eventual fees plus expense reimbursement. Sometimes a better option than firing the lawyer is to ask the lawyer to bring in as co-counsel another more experienced lawyer or law firm. Usually this can be done with no extra charge to the client; the two firms will split the work and divide the eventual contingent fee accordingly. The other problem that happens between lawyers and clients is that the lawyer may get cold feet about the case. Sometimes, especially with inexperienced or poorly capitalized lawyers, this happens when the lawyer reaches the end of his or her competence and/or bank account.