Medical malpractice occurs when a health care provider doesn’t provide standard care for its profession, resulting in injury.
According to Hofstra University’s Maurice A. Deane School of Law, 10% of deaths in the country are due to medical errors. The top four states for these incidents are California, Texas, Florida and New York.
Brian Eisen, managing partner at Eisen Law Firm, in Cleveland; Art Elk, managing partner at Elk & Elk in Mayfield Heights; Howard Mishkind, attorney, president and managing partner at Mishkind Kulwicki Law Co., LPA in Beachwood; and Jeremy Tor, attorney at Spangenberg, Shibley & Liber LLP in Cleveland, said it’s important to understand these incidents are mistakes.
“Medical malpractice is an interesting term,” Eisen explained. “It evokes in a person who reads the term some connotation that is inaccurate. People think it is some horrible, almost criminal act and it isn’t. All it means is someone was negligent, and that person is a medical care provider.”
Mishkind said people tend to think medical malpractice is an intentional, criminal act.
“It’s a failure on a care provider’s end to meet a minimum standard of care, it’s not the intent of the hospital or doctor,” he said. “But if they fail to meet a standard of care, which a reasonable doctor or nurse would’ve done in similar circumstances, that constitutes a medical mistake.”
It’s important to know medical malpractice and medical negligence are the same thing, the professionals said. Often, people think they are two different situations but the phrases tend to be interchangeable.
“They are synonymous,” Tor noted. “But, let me explain why we still have two separate terms. Negligence is an overarching legal term that means unreasonable. So, if you drive your car unreasonably, you have committed negligence. Malpractice is when a professional — whether a doctor, lawyer, or accountant — acts unreasonably. In other words, malpractice is professional negligence.”
Establishing that the two phrases mean the same thing is important, Eisen said.
“Sometimes people who have been the victim of medical negligence think since it ‘wasn’t malpractice’ they won’t call a lawyer and instead sit at home and suck it up,” he explained. “People have this idea in their heads that it has to be near criminal to call a lawyer.”
But before one looks into pursuing legal action, Mishkind said it’s important to determine if malpractice has occurred.
“The most common errors occur in diagnosis, prescription and use of medicine, and the deaths that happen are completely preventable,” he said. “What I often tell people is simply because surgery or treatment is not successful, it doesn’t mean the bad or less than the desired outcome is malpractice.”
After malpractice has been discovered, Tor said the legal proceedings are a bit different than other court experiences. Starting with a review of the victim’s medical records, Tor said the lawyer would get the story from the patient and their family, followed by a thorough evaluation of the facts.
“My role is to first investigate and find out what happened,” he noted. “If we think something unreasonable has happened, we’ll have the case reviewed by an expert, and if they agree, we’ll proceed to file a complaint.”
Elk said once malpractice is discovered, victims have a narrow window to pursue legal recourse.
“The amount of time a person has to bring their claim is one year between the date of the malpractice or one year when they discover the malpractice has occurred,” he explained. “So, it’s generally a very short time period within which to bring a claim to the courts.”
With that in mind and the complaint filed, the lawsuit can begin.
At the trial, Eisen said it’s key to establish what the standard of care is for the sake of the jury.
“The investigation is paramount,” he said. “You have to prove the caregiver had a duty to the patient. Most times, that is undisputed, but you have to show that they breached the standard of care. You have to hire medical experts in the same field who will say they’re familiar with the scenario and that the doctor should have done something different.”
Elk said, “We always look to the leading experts in the country because it’s their opinions that count. Medical malpractice is very expensive to prosecute, as you typically have to hire several types of experts.”
The chances of winning depend on each specific case, though most tend to get settled out of court. Regardless, the professionals said it’s important to reach out to a lawyer, no matter what.
“These are not cases you can put together on your own,” Eisen stated. “You have to launch a full-scale investigation. When patients try to get their medical records on their own, they aren’t getting the whole story.”
Tor said, “Medical malpractice is a very complicated and challenging area of law and requires evaluation by someone with experience and knowledge of the relevant law and medicine. But it’s important to understand that the legal standard is objective. It’s not about whether someone had good or bad motives or intentions. It’s about whether they acted reasonably.”
Elk suggested clients reach out to lawyers who are well-versed in medical malpractice, not just any lawyer.
“Contact a firm like Elk & Elk,” he said. “We have resources available on staff – like two registered nurses, a lawyer who is also a registered nurse and two lawyers who are incredibly well-versed in all areas of medical malpractice.”
Mishkind added clients should not be afraid to ask questions.
“Ask your doctors why something was ordered or if they can explain something,” he said. “Often, medicine is more of an art than a science. Sometimes, there aren’t exact answers. But, a mistake is a mistake. And if they continue to make the same mistake over and over again, that isn’t OK, and something needs to be done.”