Medical malpractice occurs when a hospital, doctor, or other healthcare provider (e.g. nurse, nurse practitioner, dentist, physician’s assistant, naturopath, nurse anesthetist) makes a mistake that injures a patient. Studies have ranked medical malpractice as the third leading cause of death in the United States. Tens of thousands of malpractice suits are brought against healthcare providers every year. But despite how common medical malpractice is, knowing whether specific care (or the lack of care) qualifies as malpractice is complicated.
It can be difficult to know what to do or how to proceed when you believe you or a loved one may have suffered medical malpractice. This interview aims to answer a few of the questions you might have. Attorney Cynthia Newton has over 30 years’ experience handling medical malpractice cases. In this interview, she offers suggestions on how to proceed if you or a loved one are concerned you may have been injured by a medical provider’s treatment.
If I believe medical malpractice may have happened to me, what is the first step I should take?
If you are concerned that a medical professional made a mistake that caused you injury, you should contact an attorney as soon as possible so the attorney can start her investigation to figure out whether there was malpractice. Medical malpractice can involve any kind of medical provider so when I talk about doctors here that is just shorthand for any medical provider.
As I explain later, my investigation involves several steps. Reviewing a case can take a long time and every case has a statute of limitations or court filing deadline which is why it is important to contact an attorney right away.
Medical malpractice is sometimes called medical negligence. In Oregon (as well as Washington and California where I am also admitted and practice), when a medical malpractice case is not settled before litigation, a jury decides the case. To win you have to prove two things: 1) that the medical professional was negligent (that medical malpractice happened); and 2) that the negligence caused injury.
You have to prove both.
To prove negligence, you must convince the jury that the medical professional failed to use “that degree of care, skill, and diligence that is used by ordinarily careful physicians practicing in the same or similar circumstances in the same or a similar community.” These are the exact words the judge in a medical malpractice case will read to the jury. We call it “ordinary care.”
If the doctor is a specialist, you must convince the jury that the doctor did not use “that degree of care, skill, and diligence that is used by ordinarily careful specialists practicing in the same medical field and in the same or a similar community.”
You also have to prove that the negligence caused injury. Lawyers call this proving causation. Under Oregon law, you have to show that, but for the negligence, the harm or injury would not have happened.
Here’s one example where it is possible to prove negligence, but not causation. Let’s say you go to your primary care doctor with abdominal pain. She suggests you modify your diet and come back in three months. When you return in three months unimproved, your doctor orders diagnostic tests that show you have Stage IV cancer. An expert in primary care medicine might testify that the primary care doctor was negligent in advising a diet change and/or failing to order studies when you first reported the symptoms. However, because her failure to order the studies resulted in a delay of only three months in your treatment, the cancer expert is unwilling to testify that the negligent care made a significant difference in your outcome. The delay didn’t cause any damage. Here, you can prove negligence, but not causation.
As I suggest by this example, the only way to establish negligence and causation in court is through expert medical testimony. Finding medical professionals to testify about medical negligence is challenging for many reasons. An attorney can find medical professionals to review the facts of your case.
What steps do you take to evaluate a potential case?
My investigation involves four steps: 1) factual overview; 2) obtaining medical records; 3) in-house review; and 4) medical expert review(s).
FACTUAL OVERVIEW: I often do this in a phone conversation. I need to know the names of your medical providers and facilities, the dates of your treatment, and your current condition. I will put these facts in chronological order. If you have prepared a written summary of events, that can be very helpful and can serve as an outline for our conversation, but it is not necessary.
OBTAINING MEDICAL RECORDS: Next, I need to get and review a copy of your medical records. I need to see the records from the providers whose care you are concerned about as well as the records of any current doctors who identified or treated the injury. I probably also need records from providers who treated you in the past. You can get the records yourself or I can request them. Sometimes it is faster and less expensive for you to request them. It’s crucial to get complete records–online charts such as “MyChart” don’t include all the information I need.
IN-HOUSE REVIEW: Next, I review the medical records so I can advise you whether, in my opinion, your situation warrants a medical expert review. While some lawyers ask others inside or outside their office to read the records, I prefer to review the records myself because, after over 30 years of practicing in this specialized area of law, I know what I’m looking for. By looking at them myself I can best advise you on whether I recommend an expert review and on the most appropriate expert reviewers.
MEDICAL EXPERT REVIEW: After I read the medical records, I will recommend whether or not to obtain one or more expert reviews. I don’t recommend an expert review of every case and, either way, I will explain why. If I recommend an expert review, I will need to find a qualified and suitable expert and send the records to that doctor for review. Most medical experts charge $250 to $500 an hour for this work. I do not require you to pay these fees up front. Some cases require more than one expert review because one doctor may be needed to prove negligence and another to prove causation.
After I finish the expert reviews I decide whether we should go forward and bring a malpractice case.
Are there different kinds of medical malpractice?
Medical malpractice is a loaded term with negative connotations. It simply means a medical professional made a mistake that was below practice standards. A mistake made by someone who is not a medical professional is also called negligence, but not “malpractice,” which, for some, creates the misimpression that the conduct was worse than negligent.
There is another type of medical malpractice case. It is based on the claim that the doctor did not get the patient’s “informed consent” before doing a procedure. The patient alleges that the doctor did not explain the risks of the procedure well enough for the patient to make an informed decision to undergo the operation or procedure. The patient claims that if they had known things the doctor did not explain to them, they wouldn’t have had the surgery at all. It can be difficult for a patient to testify convincingly after a bad outcome that they would not have had the procedure if they had known the risks. For this reason, lack of informed consent cases can be difficult to win.
How would you recommend people begin looking for representation? What should people look for in an attorney for this kind of case?
The internet is a commonly used resource. If the lawyer has a web site, you can read about other medical malpractice cases the lawyer has handled. Google and other services provide client reviews.
It is important to look for an attorney who has experience handling medical malpractice cases. An experienced medical malpractice attorney will have sufficient medical background, experience and knowledge to understand the medicine involved in your case, contacts within the medical community needed to secure the necessary expert review(s) and the litigation and trial experience to see the case through to a successful conclusion.
Navigating a medical malpractice case through investigation, litigation and resolution by settlement or trial requires a lawyer who is tenacious and resilient as well as patient and respectful. Often the provider’s error can result in serious—or even catastrophic—consequences for the patient, their loved ones and the provider. A medical malpractice attorney who understands the wide-reaching impacts of the error is better positioned to bring the case to a successful conclusion. My goal in each case is to obtain the best possible recovery for my client. I can only accomplish this by keeping the perspective of each party in mind.
It is important to have a lawyer who has tried medical malpractice cases. Medical malpractice cases go to trial more often than other injury cases. One reason for this high percentage of trials is the “consent clause” I talk about later. Also, partly because attorneys inexperienced in handling medical malpractice cases undertake them, medical professionals win these cases more often than their patients.
What do your clients worry most about?
My clients worry when they really like their doctor and they don’t want bad things to happen to the doctor personally if they bring a claim. My clients worry a lot about their future—how they’re going to support themselves and their families, how they’re going to pay for medical treatment. They worry that their injury will not improve and about the consequences of having a permanent disabling condition.
I learned from your bio on the TCNF site that your father was a surgeon, and that you once considered a career in medicine. How did those experiences influence you?
In high school and college I thought about going to medical school. After college I worked as a dialysis technician at the United States’ first dialysis center (Seattle’s Northwest Kidney Center). I dialyzed patients who were medically, financially, or psychologically unable to dialyze at home. When I worked with these patients, I realized they—and many like them—faced challenges in their lives without an advocate to speak for them. I decided I wanted to try and make a difference by advocating for them.
Because of my dad’s work, I understand the doctors’ perspective on medical malpractice. Most doctors worked very hard to graduate medical school, complete their internship and residency, become licensed and establish their practices. Nearly all doctors want to help people and they try their best. When a patient is injured by medical care the doctor involved is extremely regretful about what happened. A claim may feel like an attack on their competence and shake their confidence. They may be afraid that it will put at risk everything they have worked for years to achieve.
What’s your favorite aspect of this practice area?
I value most helping people who have been injured get compensation so they can access the resources they need to recover from their injury and, if they cannot recover, to pay for all the things they will need to take care of themselves in the future. Also, the medicine involved in these cases is tremendously interesting to me, whether it’s general surgery, neurology, obstetrics or emergency room medicine. I enjoy learning what care was required and in what way(s) a provider’s care may have strayed from it.
In nearly every case, the doctor’s lawyer will be able to find a medical professional to defend their client and testify that there was no breach of the standard of care. I enjoy the challenge involved in trying to predict the adverse experts’ opinions and in evaluating their strength and persuasive power. That way, I can develop the strongest possible case for my client.
Is there anything unique about trying medical malpractice cases in Oregon?
Yes. In most states, including Washington and California, the parties to a lawsuit, through their attorneys, have to disclose the name, specialty, and areas of testimony of each expert they will call to testify at trial. Before trial, each side deposes the other party’s experts under oath to learn their opinions. Expert depositions before trial are expensive but the process allows each side a “sneak preview” of the other side’s case.
Oregon legal procedure rules do not provide for pre-trial expert disclosure. Here, we have what is often referred to as “trial by surprise,” where the parties do not know who the opposing experts are or what they will say at trial.
What else should people know about cases like these?
Liability insurance policies that cover medical professionals contain a clause not found in your garden variety automobile insurance policy: a consent clause. The consent clause requires the medical professional to grant permission to settle. A medical professional can use the consent clause to prevent a case from being settled, even if the insurance company and the attorney hired to represent the doctor recommend settlement. In other words, the medical professional has the final decision-making power whether to settle the case or go to trial.
The consent clause is another reason why it is important to have a knowledgeable and experienced attorney handling your medical malpractice case. The provider, their attorney and the insurance company adjuster know from how a lawyer writes the complaint (the lawsuit) and asks deposition questions whether she will be able to persuade the jury that the provider was negligent and caused injury. Only that attorney will be capable of convincing not only the insurance company and defense counsel—but the individual doctor—that you are entitled to a recovery.