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.
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.
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Get started with a free financial assessment.
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.
Patients should ask providers a written list of questions that they feel are important, and expect—indeed, demand—full and complete answers.
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.