We want to trust our medical providers. We all respect doctors. We place our lives and health in their hands, often without hesitation or thought.
Unfortunately, that trust is not always well placed. Medical negligence and preventable medical error are among the leading causes of death in the United States. It is the leading cause of accidental death.
Injury at the hands of trusted medical professionals is physically and emotionally devastating. It is often a gut-wrenching decision to bring a claim against a medical provider. There are countless questions and concerns that an injured patient and family will have before even considering this option.
The Albuquerque medical malpractice attorneys of Collins & Collins, P.C. are here to help guide those patients and their families who have suffered severe personal injuries or wrongful death due to medical negligence.
The myth of the Medical Malpractice Lawsuit Crisis
Don’t buy the media hype about frivolous medical malpractice lawsuits if you or a loved one has been seriously harmed by medical malpractice. This is a myth intended to protect the insurance industry, not the patients, the public, or even the medical profession, for that matter.
You have rights as a patient. First and foremost, you have a right to competent medical care. If that right is violated and you suffer injuries. As a result, you have the right to be compensated.
Some Numbers on Medical Negligence
Despite the suggestions of many politicians and the media that medical malpractice claims create greedy and opportunistic patients and attorneys, medical malpractice is an enormous problem in the United States.
The results of medical malpractice range from chronic pain to permanent disability to disability to death. The Journal of the American Medical Association suggests that medical malpractice is currently the third leading cause of death in the United States.
In 1999, the Institute of Medicine issued its landmark study, “To Err is Human,” where it was estimated that as many as 98,000 Americans died each year due to preventable medical errors.
Despite and perhaps related to the attack on patient rights through the myth of a medical malpractice lawsuit crisis, the more recent estimates from the Journal of Patient Safety put the number as high as 440,000 deaths per year. The study further estimated 10 to 20 times that number suffer severe and permanent non-lethal injuries.
Millions of Americans are harmed or killed yearly due to preventable medical errors. Yet the myth goes on with constant attacks on patient rights and safety for the benefit of insurance companies.
More Than a Bad Outcome is Required for a Medical Malpractice Claim
It is essential to understand that just dissatisfaction with medical care does not mean there is negligence. Likewise, even bad medical outcomes do not necessarily suggest malpractice.
Medical care has many inherent dangers, some of which cannot be avoided. Those that can and should be avoided lead to medical malpractice claims.
Medical Malpractice Claims are Complex
Medical malpractice claims are highly complex. The burden is on the injured party to show that the doctor’s behavior was negligent and fell below the standard level of care under the circumstances.
Because doctors are not prone to admit malpractice, proof of malpractice generally requires extensive attorney resources and expert witness assistance. This means that the injured plaintiff must get a medical expert who will state in court, if necessary, that the behavior amount to malpractice. This cannot be avoided, or the case will not get out of the gate.
Deadlines and Other Requirements in a New Mexico Medical Malpractice Claim
Numerous laws, regulations, time, and limits apply to medical malpractice claims. These include:
- Special deadlines for medical malpractice claims.
- Special filing requirements for many medical malpractice claims.
- Special limitations on recoverable damages, in particular medical malpractice claims.
To understand these requirements, it is essential also to understand two more crucial points:
- Different deadlines may apply for private and governmental medical providers. The deadlines for suits against governmental providers are much shorter than for personal claims.
- There may be different requirements depending upon the status of the medical provider as a Qualified Healthcare Provider. The particular deadlines and rules above apply primarily to those medical providers who are Qualified Healthcare Providers. “Qualified Healthcare Provider” is a statutory definition and does not have the ordinary meaning suggested by its name.
To get right to the point, whether you must file your medical malpractice claim with a Medical Review Pane depends on whether your doctor or medical provider is a Qualified Health care Provider (QHP). If your doctor is a QHP, you must first file your medical malpractice claim with a Medical Review Panel. If your doctor is not a QHP, you do not have to file with the Medical Review Panel and proceed directly to court.
Qualified Health care Provider Status
So this raises a couple more questions on how a doctor qualifies as a QHP and how you know if they are. Qualified Healthcare providers get their QHP status through the Medical Review Commission.
To qualify as a QHP, the doctor needs only meet a few requirements, the most important of which is proof of financial responsibility. In short, the doctor must provide proof of insurance coverage as set forth by the Medical Malpractice Act.
Determining a Doctor‘s QHP Status
An injured patient can determine whether the doctor is a QHP by contacting the Medical Review Commission or the Patient Compensation Fund. It is essential to make this determination immediately for several reasons. Of course, one of these (but not the only by any means) is to determine if you must first file your claims with a Medical Review Panel.
By meeting a few nominal requirements, the doctor will enjoy all of the protections of the Medical Malpractice Act as a QHP. The protections for QHP providers do not apply to those that are not. This gets us to the essence of the question first asked above.
Deadlines for Filing with Medical Review Panel
One of the principal protections under the Medical Malpractice Act is that any medical malpractice claims must first be brought before a Medical Review Panel. This requirement applies only to QHP’s. It does not apply to non-QHP.
For claims against a QHP, the claims must be filed with the Medical Review Commission. Like other personal injury matters and medical malpractice claims, the claims must be filed within three years of the alleged negligent act.
Failure to file within the three-year statute of limitations will bar your claim altogether. However, it is essential to note that once the claim is filed with the Medical Review Panel, the statute of limitations is tolled on the medical malpractice lawsuit.
Medical Review Panel‘s Decision is Not Binding!
This brings up two critical points. First, once the Panel has ruled, you may still file a lawsuit no matter the Panel’s ruling. It is not binding on the injured plaintiff. Second, the statute of limitations stops running on your case while the Panel is pending. But it recommences as soon as Panel has issued its ruling.
Once the Panel has ruled, the statute of limitations will begin to run again in 30 days. This means your statute of limitations will pick up where it left off. If you had two years left on the law, you still have two years. The time with the Medical Review Panel will not count against you. The contrary would be highly unfair to injured patients.
If you have a short time remaining on your statute of limitations, you would need to move quickly to file your lawsuit. It is essential to file the suit within the statute of limitations deadline. The filing with the Medical Review Panel tolls the statute of limitations. It does not do away with it.
Having said all that, it is essential to keep in mind that the deadlines on claims against Qualified Healthcare Providers can get tricky. These unique deadlines must be understood in computing your statute of limitations.
The requirements and protections of the Medical Malpractice Act are there to protect the doctors (and their insurance companies), not the patient. It is essential to have an attorney experienced in medical malpractice on your side.
Never Events in Hospitals – Albuquerque Medical Malpractice Attorneys
Never Events in Hospitals Far too many patients go into a hospital hoping to get better only to find themselves at the end of a medical error causing them even more harm.
Reports indicate that hospital-acquired health care problems may result in as many as 187,000 deaths and 6.1 million injuries yearly. One 2011 report found that one out of three hospitalized patients was harmed during treatment.
“Never events” are serious patient safety incidents that should never occur in a health care setting because they can be eliminated or sharply reduced with readily available preventative measures. The term “Never Event” was coined in 2001 by Dr. Ken Kizer of the National Quality Forum.
Basic Requirements for a Medical Malpractice Claim – Albuquerque Medical Malpractice Lawyer
Basic Requirements for a Medical Malpractice Claim – Albuquerque Medical Malpractice Attorney Medical malpractice claims in New Mexico can be challenging. Even though medical negligence is widespread, many biases remain toward doctors and against injured patients.
The presumptions in favor of the medical provider can be challenging to overcome. There are several essential elements that you must prove to establish a medical malpractice claim.
Local v. National Standards of Medical Care in Medical Malpractice Claims
There will be a mix of local and national standards in medical malpractice cases. The injured patient (or, far too often, the surviving loved ones) must meet both.
New Mexico’s rules state that the standard of medical care is governed by the standard of care in the locality involved. However, due to the nature of modern medicine, most medical care will be handled to a large degree by national standards.
Local Medical Malpractice Standards
Medical malpractice in most jurisdictions, including New Mexico, is governed by what is referred to as locality rules. In other words, the medical provider’s medical care must have fallen below the standard of care in the community. Jury instructions embody these locality rules in most jurisdictions.
New Mexico’s Jury Instruction (UJI 13-1101) states that the medical provider must exercise a duty of care consistent with a reasonably well-qualified healthcare provider “practicing under similar circumstances, giving due consideration to the locality involved.”
Locality rules also apply to specialists. A specialist has a similar duty of care defined as a “reasonably well-qualified specialist practicing under similar circumstances, giving due consideration to the locality involved. A doctor who fails to do so is negligent.”
National Standards Typically Govern Medical Care
This is where it gets a little confusing for non-lawyers. Professional associations govern specialists, and there are relatively rigorous national standards for accreditation as a specialist in any medical field. These national standards establish the standards of care for specialists. It may be reasonably expected that a specialist will meet these standards. Failure to do so would suggest negligence and incompetence, either of which jeopardizes patient safety.
National Standards are Critical to Patient Care
The importance of national standards cannot be overstressed. These standards are derived from the best minds in medicine. They often arise from patient safety issues, including severe and recurring preventable medical errors. They also come from governmental agencies such as Medicare.
Medicare has been very forceful in its efforts to nationalize these standards. Medicare has done this through a policy of non-payment for hospital-acquired conditions resulting from a lengthy list of inexcusable medical errors. Naturally, despite the enormous diresubstantialnd indirect costs to patients, the medical care system, and taxpayers, many in Congress have pushed back, stating that these national standards should not be construed as standards at all for purposes of medical negligence claims.
Congressional action of this sort seriously endangers innocent patients even amid past Congressional findings of an epidemic of preventable medical error. Fortunately, at least in New Mexico, the courts recognize that national standards govern most cases, which helps explain the need for national experts on the standards of medical care in any medical malpractice lawsuit filed in New Mexico.
Standard of Care Must be violated for a Medical Malpractice Lawsuit.
This should by no means suggest that medical malpractice cases are easy. They are challenging and expensive to pursue. Medical malpractice claims do not get off the ground without expert medical opinion to show that the standards of care (local and national) have been violated. Without the expert opinion of a qualified expert in the particular field of medicine, these cases get dismissed at summary judgment. This means the judge rejected the claims right out of the gate.
In short, task #1 is to determine whether the medical care fell below established standards of care. To do this, the patient must typically seek the services of an attorney. Here’s why:
- Local doctors rarely testify against other local doctors.
- It is, therefore, necessary to get a national expert, which is expensive.
- It is essential to find a highly qualified and objective medical expert, not paid hired guns, that will say what they are paid to say.
- Most injured patients do not have the money to accomplish these things independently.
In short, seek experienced legal counsel to review your claims. If the claim appears to have merit, the attorney will have an expert review the medical records. A good expert will tell the attorney whether or not the claim should be pursued.
Unfortunately for many patients, by their experience and objectivity, the expert(s) will frequently suggest that the case has no merit and should not be pursued. On the other hand, when they say there is a claim, the point is ready to go forward, including litigation.
Contact an Experienced Medical Malpractice Attorney
Perhaps more than any other type of claim, it is essential to contact a medical malpractice attorney as soon as medical negligence is suspected.
Medical malpractice claims are highly complex. They can take months to fully evaluate due to the necessity of a medical expert evaluation before proceeding with a lawsuit.
In light of the deadlines, particularly in claims against governmental medical providers where the first critical deadlines run in only 90 days, delay can be highly detrimental to your rights. Missing a deadline will bar your claim altogetherNine.
Collins & Collins, PC
407 7th St NW,
Albuquerque, NM 87102