Question: If I think I have been a victim of medical malpractice, what should I do?
Susan: I think it’s a good idea to begin documenting. Document what happened. Document everything that happens after the malpractice. Dates of surgery, lab results, if you have a CT scan, the results of the CT scan. Document the names of the doctors, nurses, and other healthcare providers involved.
Question: Times, places of conversations?
Susan: Absolutely. And you may ask, why do you want to document? I think it helps you remember things if a lawsuit is filed in the future. You have the facts down. It will also help you explain your case when you do consult with an attorney and it also can help you explain your condition and case to a doctor that may treat you as a result of the malpractice. So documentation is very important. The second thing that I would recommend is that you ask questions. Don’t be afraid to ask questions and don’t be intimidated. So many of our clients come to us because they want answers and they haven’t been given answers. You don’t have to be hostile but be direct. Just ask why did this happen? How is this going to be fixed? What’s the treatment plan from here on out? I also recommend if you are having those types of conversations, and you suspect malpractice, to maybe have a family member or friend in on those conversations. Sometimes it helps to have an objective person in on the situation to listen. They might think of questions that you are not thinking of to ask. Over the years, I have had clients come into the office and I will ask them what were you told about why your loved one died. And they will tell me, I was told he had a cardio-pulmonary arrest or he died of a cardiac arrhythmia. In reality, everybody is gonna die of a cardiac arrhythmia or a cardio-pulmonary arrest. When I ask them what did they say caused that, they didn’t ask that question. If you have an objective third party, you know, two heads are better than one. Perhaps more questions will be asked that will shed some light on the situation. Another very important thing to do is to request a copy of your medical records. You want to get a copy of those records before there is any editing or alterations that might happen. Unfortunately, alteration of medical records does occur when there has been a bad result. Sometimes lab results are lost, the chart can be lost, entries are altered, additions are made. It would be much easier for your attorney to detect these alterations if you get a copy of the records close to the time the malpractice occurred. I worked on a case in the office a number of years ago where a lady was having some problems after surgery and she became friends with the receptionist in the doctor’s office. She said, can I get a copy of my medical records, I’d like to get a second opinion and the receptionist said sure and copied the three little pages of her medical records. She then did consult with an attorney who requested the records from the doctor and the attorney received a set a medical records that were quite larger and had many additions. This attorney did not do a lot of malpractice and referred the case to our office. I ordered another set of medical records from the doctor by an authorization and got more alternations and additions. Once the case was filed, I asked the defense attorney, can you please give me a copy of your client’s records. And the records got even better. A large volume of records, derogatory comments were added about my client, so, you know, that doesn’t happen very often, but that’s an extreme example of alterations in medical records.
Question: Is it a good idea to know if you have seen the doctor within that year to get your medical records and have it on hand?
Susan: I think it’s a very good idea because even if you have to go to the hospital unexpectedly, you will have some records. With my own family members, I keep a little file and every time we go to the hospital, I take that file with me. A list of medications, list of visits, almost like a chronology. It’s very helpful. If you suspect you have been a victim of medical malpractice, you might want to seek a second opinion or transfer your care to a different healthcare provider. That new doctor might not so focused on the malpractice. I would hope they would be more concerned about treating the problem. And a subsequent treating physician may actually tell you about the problem with your prior medical care. I think the most important thing to do if you think you’ve been a victim of medical malpractice is to contact a professional – a medical malpractice attorney who does this so we can get the records and get them to an expert for review.
Question: Am I entitled to file a medical malpractice lawsuit if I have signed a consent form for treatment?
Susan: Most definitely you are. There is actually a separate theory in addition to negligence that you can sue for. Lack of informed consent. Consent of a patient is necessary before a procedure is performed by a physician. A physician can be liable for a medical battery if they do not have informed consent before giving treatment. With informed consent, a physician has a duty to inform the patient about all foreseeable risks, results and possible alternatives to treatment. You need to know what your alternatives and options are. To prove a case of lack of informed consent, the plaintiff must again have an expert who will testify to what a reasonable physician would have told the patient about the risks and the expert must say why the disclosure by the defendant physician was not reasonable under the circumstances. Having said all of that, the fact that a consent form is signed before a procedure is not conclusive. A good plaintiff’s medical malpractice lawyer can challenge the consent form; they can challenge the time it was signed. Have you already been given that shot that kind of makes you groggy before you go into surgery? They can challenge the circumstances under which it was signed. Did the doctor talk to you or were you just handed a consent form by a nurse and told sign here on the line? Was there a proper interpretation of that form? Was it explained to the patient? The most important thing to remember is just because a consent form mentions a particular risk, and the patient was informed of that risk, the patient does not consent to malpractice. A physician has to take measures to prevent that risk or harm. So, for example, in a surgery case, if a surgeon injures a nerve or a blood vessel and that injury had been mentioned on the consent form, your attorney can still introduce evidence that injury occurred only because of the negligent way the doctor performed the procedure. Consent only applies to appropriate care. It doesn’t apply to negligent care.
Susan Capra, a partner at Clifford Law Offices in Chicago, is here to discuss medical malpractice. Susan is also a registered nurse and has combined her medical knowledge with her legal education to help those who have been injured by healthcare professionals. She understands all that it takes to put together a successful medical malpractice case because these matters are highly complex.