Medical malpractice lawsuits a concern for both patients, doctors

Apr 19, 2015

Dealing with a major medical crisis in your life is stressful enough. But suppose something goes wrong, and the outcome isn't what you had expected? When does a patient move from being merely disgruntled and dissatisfied to seriously considering a lawsuit?

This week on “Take Care,” Chris Stern Hyman discusses medical malpractice and its principles. Hyman is a healthcare attorney, former litigator and founder of Medical Mediation Group in New York City.

Hyman says medical malpractice is “essentially … the physician’s care of the patient did not meet the accepted standards of care and that the patient was injured as a result of the substandard care.”

Hyman says medical malpractice got renowned attention in 1999 when the National Institute of Health released a report, stating that 98,000 people a year died in hospitals each year as a result of medical errors that could have been prevented.

According to Hyman, 7.4 percent of all physicians typically have a medical malpractice claim filed against them within a year, but the risk that physicians feel they may be slapped with a lawsuit any given year is actually much higher, at about 20 percent.

Hyman says the majority of lawsuits are the results of all kinds of surgeries, most likely because it is a medical task that requires direct action by a physician. In addition, Hyman says victims of malpractice are more likely to feel negative effects in surgeries than other medical procedures.

“Basically you have to prove the elements of negligence and negligence care,” Hyman says.  “And the way that that is proven is through expert testimony by another physician who has reviewed the case and then testifies about the deviations from care.”

The amount of time it takes to complete a lawsuit varies from state to state. Hyman says in New York state, four years is the average amount of time it takes. However, a vast majority of medical malpractice litigations result in settlements.

“The costs are pretty high,” Hyman says. “In New York, it’s within $300 an hour to pay an expert to review records and give an opinion, $3,000 a day to testify either at a deposition that usually occurs before the trial and $3,000 a day at the trial.”

In medical malpractice cases, if the plaintiff has proven their case, then they’re entitled to damages.

“Damages are divided into two types,” Hyman says. “One are compensatory damages which typically includes medical expenses reasonably related to the wrongful conduct, lost earnings, impairment of future earnings, pain and suffering, loss of parental guidance and loss of enjoyment of life. Punitive damages may be rewarded for intentional reckless or grossly negligent treatment.”

Hyman added that mediation, something she has become a specialist in, is becoming a more popular alternative to painful and drawn-out court hearings.

“Litigation is a battle. Lawyers are warriors,” Hyman said. “It’s an entirely different way of perceiving a problem or dispute. Mediation is a process, a neutral third party to facilitate a discussion to both sides, exchange information, test the options of what might be done. It broadens the options that are available because in court, money is almost only available.”

But even as more patients choose mediation, Hyman says there still needs to be reform on medical malpractice on a larger scale, one that focuses on the patients more.

“What really needs to happen is a cultural shift so the patient’s safety can be front and center and the concern of all the physicians and practitioners within the health care system,” Hyman says.