D.C. Personal Injury Lawyer & Attorney : Gabriel Assaad : Assaad Law, PLLC: D.C. Injury Law Journal

 Everyone expects their doctor to be an expert in their field and to solve the medical problems they bring for treatment.  At least, that was common several decades ago.   Times have changed, and patients are quicker to blame a doctor when they don’t get the result they expect from a health care provider.  The truth is, while most physicians are experts who do provide a high quality of care, there are times when they make mistakes, and those mistakes can be painful and even deadly.

Medical Malpractice Law

Anyone who is injured by the mistake of a health care provider has the right to file suit to obtain compensation for his or her additional medical costs as well as pain and suffering.  The problem is, these cases are often difficult to prove.  In addition, legislators in some states have put limits, or caps on the compensation victims can be awarded in lawsuits.  Experienced personal injury lawyers can help a victim learn if their doctor is negligent in their injuries based on several parameters.

Proving a Doctors Liability for a Medical Injury

A doctor can be proved guilty of medical malpractice if they perform a negligent act or fail to perform a necessary act that results in damage or harm to a patient.  These negligent acts can occur in such areas as

·         A mistake in a diagnosis

·         An error in treatment

·         Failure to provide timely treatment

·         Failure to provide appropriate follow-up to a patient

·         Inappropriate prescriptions ordered to treat a patient

The victim must be able to prove that their physician’s treatment deviated from the generally accepted standards of treatment in that field or for that illness.  One of the requirements that most states have added to medical malpractice lawsuits is that the lawyer obtain a certificate of merit from an established expert in the medical field in question before proceeding with the lawsuit.  And in fact, medical experts are often used throughout a medical malpractice suit to prove that the defendant acted negligently in their treatment of the plaintiff.

In some cases, a victim may be unable to prove exactly how a health care provider acted negligently, causing the injury.  However, if the injury is obviously one that would not have occurred without someone’s negligence, a principle called "res ipsa loquitur," it becomes the defendant’s responsibility to prove that they were not negligent, rather than the plaintiff’s responsibility to prove that they were.

Who Is Responsible?

There are a number of possible defendants to be considered in a case of medical malpractice, especially if it is in relationship to a serious illness or injury.  When multiple doctors and nurses are involved, plus hospital care, tests, and prescriptions, it can be much more difficult to determine who is negligent in a medical malpractice lawsuit.  Some of those who can be found negligent include, among others,

·         Physicians

·         Hospitals

·         Anesthesiologists

·         Nurses

·         Pharmaceutical companies

It takes expert investigators to sift through the evidence and determine whom has liability for the injuries sustained by the victim. 

Malpractice Cases and Compensation

Medical malpractice cases are difficult to prove.  In addition, while the pain and costs involved in such injuries are extensive, the emotional toll is high, as well.  That makes it that much more important to have a skilled medical malpractice attorney who can look at a case with legal eyes rather than emotional eyes.  They can tell the victim if they have a case, and how that case should be pursued in order to obtain the compensation they deserve.

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 All health care professionals owe a duty to their patients to provide medical treatment that meets a recognized standard of care.  A medical malpractice case can be brought when this...

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That is just ridiculous.  In a CNN article by Stephanie Smith posted October 13, 2009, Ms. Smith quotes a study from the American Journal of Medicine that found that 62% of bankruptcies in 2007 were a result of medical debt compared to 8% in 1981.  If that is not reason enough for health care reform, I do not know what is.

To live in one of the greatest countries and to have that statistic is embarrassing.  I am sure that the 62% of bankruptcies were hard working individuals that could not afford their insurance premiums due to the continuous rise of said premiums.  As insurance companies are making record profits, the injured, sick, unprotected individual is suffering and taking on a debt that he can't refuse.  What is his/her choice, not to treat the cancer? not to remove the appendix? just die.

I pray that our government can come together in this time to find a solution so that we as a country can brag to the rest of the world that we do have the best health care system and not have statistics such as the one above.  And for all those out there that that believe that we need medical malpractice reform, show me the hard data that directly correlates medical malpractice to insurance premiums.  Oh yeah, and I would like that data from a source that is not the insurance companies or the many organizations insurance companies retain come up with such false data.

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Legal malpractice may occur where a lawyer acts in a negligent manner when providing legal advice or representation.

The Elements of Legal Malpractice

Typically, to prevail in a legal malpractice case, a plaintiff must prove all of the following:

·         The existence of an attorney-client relationship;

·         Negligence in the legal representation of the plaintiff;

·         That the negligence was a proximate cause of an injury;

·         The fact and extent of the injury alleged.

In many legal malpractice actions, there may be discussion of whether the plaintiff could win the "case within a case". This discussion occurs in malpractice cases involving prior litigation, where a plaintiff claims to have either lost or to have recovered a smaller amount of damages than warranted by the facts and law, as a result of the original lawyer's malpractice.

In order for the plaintiff to establish that damages were suffered as a result of the alleged malpractice, it is often necessary for the plaintiff to prove that, but for the malpractice, a favorable verdict would have been won or greater damages recovered. In essence, this is a retrial of the original litigation within the context of the malpractice action - a case within a case.

Proving Legal Malpractice

As the elements outlined above suggest, the first thing a plaintiff must do in order to prove legal malpractice is to establish that an attorney-client relationship existed, without the relationship, the lawyer doesn't have any duty to the client, and there is no basis for a malpractice action.

The plaintiff must then establish the "standard of care" which governed the legal representation, and show that the attorney violated that standard of care. Sometimes this is easy, and may not even require any expert testimony. However, as legal representation is often complex, it is often necessary to use an expert witness to establish the governing standard of care, and to describe how the lawyer violated that standard of care.

Next, it is necessary to demonstrate that the plaintiff suffered an injury as a proximate result of the lawyer's negligence. That is, that the injury followed from the lawyer's misconduct.

Finally, the plaintiff must ordinarily establish that damages actually were suffered as a result of the legal malpractice, and the nature and amount of those damages. Even if all other elements of a malpractice case are established, if the plaintiff cannot show that any damages resulted from the legal malpractice the lawyer will typically be entitled to a dismissal of the case.

About the author:

Gabriel Assaad has successfully litigated multiple cases on behalf of injured victims in the District of Columbia, Virginia and Maryland.  Mr. Assaad graduated from a top 20 law school and is a member of national and local organizations dedicated to protecting the rights of the injured.  In addition, Mr. Assaad also volunteers as General Counsel to Mission Life Center which provided services (medical and social services) to people in need and Care in Action, an international organization providing AIDS care in Africa.

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This week Congress reconvenes in Washington, D.C. and health care reform will be front and center. This a serious concern that medical malpractice reform will be used as a bargaining chip by the Democrats and the Obama Administration in order to get a Health Care Reform bill passed.  

President Obama will be addressing the nation this evening and is expected to set forth what he wants in a health care bill.   We must keep medical malpractice reform out of the Healthcare Bill. Why? Because....

·         Medical malpractice should not be a bargaining chip. Health care reform is about making sure that every American has access to quality, low-cost health care, not about limiting the legal rights of innocent patients harmed by medical negligence.

·         Taking away patient rights does not improve the quality of our health care system or produce cost savings. Forty-eight states have already enacted medical malpractice reform measures. Yet these legal restrictions have done nothing to improve our health care system, reduce costs, or help people harmed by medical negligence.

·         Medical malpractice is about real people with real injuries. The Institute of Medicine estimates that 98,000 people die each year in the US from preventable medical errors (the 6th leading cause of death in America).

·         Defensive medicine is a myth. Both the GAO and CBO question the prevalence of defensive medicine, and have detailed how tampering with the legal system will save practically no money. Some so-called defensive medicine may be motivated more by profit and less by liability concerns.

One thing is clear - we must ALL be a part of the fight to keep medical malpractice reform out of the health care bill. 

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Dr. Deane Waldman, in an article in the Huffington Post, equates medical malpractice to winning the lottery.  In fact, in the beginning of his article, he posts the following tacky picture:

Has this guy ever sat down and even talkd to a victim of medical malpractice?  I bet not.  All he does is try to convine the reader of all these facts about medical malpractice and states that there is data to back it up.  However, he provides no data and the fact are all wrong.

The one area I want to address is the following comment:

Human-ness
If you accept that we are all human and that humans are by nature imperfect, what about nurses and doctors? Are they allowed to be human? No, society demands that they produce perfect results every single time time.

Yes, doctors are human, but so are the engineers that design cars, airplaines, bridges, etc. and so re air traffic controllers, and so are people like you and me that drive cars on a daily basis.  We are all held accountable for our mistakes, but doctors such as Dr. Waldman believe that they should not be.  People do not expect perfection, butpeople do expect accountability, even for doctors.

Dr. Waldman rather portray the injured as Lottery players. 

I am sure if asked whether these victims of medical malpractice would rather wn the lotter or be whole again, I believe we know what the answer would be.

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A doctor in Maryland uses scare tactics to convince citizens that medical malpractice reform is necessary.  In an editorial in the Baltimore Sun, Dr. Hass wrote:

At a time when the nation's economy is slumping and the governor is proposing to mandate that Maryland hospitals and physicians provide more free care to lower-income families, it's ironic that the state House Judiciary Committee, led by trial lawyer Joseph F. Vallario Jr., is proposing legislation to roll back the reforms in the state's medical malpractice insurance policies enacted in 2004 ("Attack of the trial lawyers," editorial, Feb. 17).

Such a rollback would ultimately result in higher malpractice insurance rates for doctors and hospitals, higher health care costs for consumers, higher health insurance premiums for businesses and, of course, higher incomes for well-heeled trial lawyers.

Perhaps the "attack" of these lawyers on physicians and hospitals will only abate when enough doctors have left Maryland and enough hospitals have closed that they no longer have anyone left to sue.

There is numerous articles that have discredited the fallacy that medical malpractice lawsuits cause higher medical malpractice premiums, health care costs to consumers, and an exodus of doctors from sates.  In fact, look at California, they have had medical malpractice caps for over 20 years and there is no change compared to other states that have not passed tort reform.

In DC, there are no caps.  The last time I checked, there are no shortage of doctors or exodus.  In fact, the DC Metro area is overly saturated with physicians to the point where physicians' salaries are less here than many other parts of the country for a lack of demand.  With respect to higher premiums, if you look at the data, medical malpractice cases account for less than 1% of the health care costs in the country. 

The author's use of attack is indicative of the lack of facts to support the position taken by thus doctor.  This doctor should look at the insurance companies as for the cause of higher premiums an look at the insurance companies books before he blindly blames the "attacking" lawyer.

I suggest to this doctor or anyone who has the same viewpoint to pray that no one in their family is on  the receiving end of being malpracticed upon.

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The West Virginia Record wrote on January 9, 2009 a wonderful article about former Justice Larry Starcher overviewing his last days of his term and his fight to the end to protect the rights of individuals, including the areas of medical malpractice.

CHARLESTON - To the end, the old West Virginia Supreme Court of Appeals worked hard at making decisions. And former Justice Larry Starcher worked hard at disagreeing.

Starcher filed seven dissents on Dec. 30, the last day of his 12-year term, all celebrating his conviction that judges should keep rewriting laws."

 One such dissent was a medical malpractice case which The Record summarized as follows:

 Forshey v. Jackson

Left-handed locksmith Paul Forshey developed carpal tunnel syndrome, a wrist injury. Physician Theodore Jackson performed surgery in 1995.

Forshey's pain continued and a knot formed under his thumb. Jackson set exploratory surgery but cancelled it four days ahead of time.

Jackson rescheduled it, but Forshey cancelled it four days ahead of time.

In 2005, Forshey injured his left index finger. An X-ray revealed a piece of knife blade.

In 2006, Forshey sued Jackson in Kanawha Circuit Court.

Jackson moved to dismiss, relying on state law that sets an absolute limit of ten years on a medical malpractice claim.

Forshey argued that the statute didn't start running in 1995. He argued that it started running in 1997, when Jackson cancelled the exploratory surgery.

Circuit Judge Jennifer Bailey Walker dismissed the suit, and on Nov. 25 the Justices affirmed her.

Justice Robin Davis wrote that in order to beat the statute of limitations, Forshey had to show repetitious wrongful conduct.

"Merely establishing the continuation of the ill effects of an original wrongful act will not suffice," Davis wrote.

In dissent Starcher wrote, "The injury in this case wasn't just the scalpel blade left in the plaintiff's hand."

He wrote, "It was that the defendant doctor screwed up and committed malpractice by failing to properly diagnose the error in two years of trying."

He wrote that Walker should have let Forshey pursue the action, "which most likely would have resulted in a speedy settlement."

He wrote that "this Court will do whatever it takes to protect doctors and lawyers from malpractice claims -- no matter how meritorious those claims might be."
 

I believe the last line says it all!!!!

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