Collins & Collins’ Journey to Medical Malpractice Law
Collins & Collins, P.C. has been handling personal injury claims and lawsuits since its inception in 2000. In 2008, we took our first medical malpractice case.
We had had many calls from patients and families over the prior 8 years, but we sadly had bought into the politically and corporate driven myth of runaway frivolous medical malpractice lawsuits.
The myth created by very conservative politicians, chambers of commerce across the country, lobbyists, and the medical community itself effectively sold this myth to the public. Like most everyone else, we had bought into the myth ourselves.
Our first case in 2008 ended our gleeful ignorance of the realities of medical care in the United States.
That first case involved a surgical sponge left in a patient following a C-section. The sponge would wreak havoc on our clients health for over 5 years causing her extreme physical and emotional pain.
All the while, our client went repeatedly to the hospital where her baby had been delivered reporting severe abdominal pain. They dismissed her, telling her each time she was fine, suggesting it was all in her head.
She finally went to another hospital with the same results. Only this time, the hospital first told her she needed to lose weight. When that didn’t alleviate the pain, hospital personnel accused her of extramarital sex. Rather than perform proper diagnostics, she was coached on safe sex.
Over those 5 years of blaming her for her issues including suggestions that she was cheating on her husband, which the husband learned not surprisingly causing some marital strife, the sponge caused severe scarring to her gallbladder. She had to have her gallbladder removed.
Seeing what our client went through changed our thinking on medical malpractice claims and lawsuits. Once we began looking into the cases as the calls came in, we realized that medical negligence was not rare at all. In fact, it was very common.
For the great majority of the calls, the negligence did not cause enough harm to justify the expense, time and stress to the patients, the families and the lawyers that would come with a medical malpractice lawsuit. More interesting were the statistics suggesting that as many as 400,000 patients die each year as a result of hospital acquired as of 2013. This would make medical error the third leading cause of death in the United States behind only heart disease and cancer.
Since that first case in 2008, Collins & Collins, P.C. has reviewed hundreds of alleged medical negligence cases. A lot of these had no merit that we could see so we declined the cases immediately. Many, however, involved some pretty outrageous medical errors but the patient fortunately had not suffered severe injuries or death, so we were unable to pursue those claims due to the extraordinary difficulty, costs and risks associated with medical malpractice lawsuits. Far too many of the remaining cases did result in severe, often permanent injuries and/or death to the patient.
Thus began our journey into medical malpractice.
Trust in Medical Providers
We want to trust our medical providers. We all respect doctors. We literally place our lives and our health in their hands often without hesitation or thought.
Unfortunately, that trust is not always well placed. Medical negligence and preventable medical error is 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 devastating both physically and emotionally. It is a often a gut-wrenching decision to decide 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 serious personal injuries or wrongful death as a result of medical negligence.
Myth of Medical Malpractice Lawsuit Crisis
If you or a loved one has been seriously harmed by medical malpractice, don’t buy the media hype about frivolous medical malpractice lawsuits. 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 have right to be compensated.
Some Numbers on Medical Negligence
Despite the suggestions of many politicians and the media that medical malpractice claims are the creation of 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 as a result of preventable medical error.
Despite of 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 that 10 to 20 times that number suffer severe and/or permanent non-lethal injuries.
Millions of Americans are harmed or killed each year as a result of preventable medical error. 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 important to understand that just dissatisfaction with medical care does not mean there is negligence. Likewise, even bad medical outcomes do not necessarily suggest malpractice.
There are many inherent dangers to medical care some of which cannot be avoided. It is those that can and should be avoided that lead to medical malpractice claims.
Medical Malpractice Claims are Complex
Medical malpractice claims are extremely 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 that will state in court if necessary that the behavior did 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
There are numerous laws, regulations and time limits that apply specifically 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 certain medical malpractice claims.
To understand these requirements, it is important also to understand two more important points:
- There may be different deadlines that apply for private and governmental medical providers. The deadlines on suits against governmental providers is much shorter than for private claims.
- There may be different requirements depending upon the status of the medical provider as a Qualified Healthcare Provider. The special 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 common meaning suggested by its name.
To get right to the point, the answer of 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, then you must first file your medical malpractice claim with a Medical Review Panel. If your doctor is not a QHP, then no 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 gets qualified as a QHP and how do you know if he or she is? Qualified Healthcare providers get their QHP status through the Medical Review Commission.
Basically in order to qualify as a QHP, the doctor need 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 more specifically the Patient Compensation Fund. It is important 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 does 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 3 years of the alleged negligent act.
Failure to file within the 3 year statute of limitations will bar your claim completely. However, it is important 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 important points. First, once the Panel has ruled, you may still file a lawsuit no matter what the Panel’s ruling. It is not binding on the injured plaintiff. Second, the statute of limitations stops running on your lawsuit 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 2 years left on the statute, then you still have 2 years. The time with the Medical Review Panel will not count against you. Clearly, the contrary would be extremely unfair to injured patients.
If you had a short time remaining on your statute of limitations, you will need to move quickly to get your lawsuit filed. It is important to file the suite within the statute of limitations deadline. The filing with the Medical Review Panel simply tolls the statute of limitations. It does not do away with it.
Having said all that, it is extremely important to keep in mind also that the deadlines on claims against Qualified Healthcare Providers can get a little 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 important 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 are 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 hospital-acquired health care problem may result in as many as 187,000 deaths in hospitals each year as well as 6.1 million injuries each year. 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 at least sharply reduced, with readily available preventative measures. The term “Never Event” was coined in 2001 by Dr. Ken Kizer of 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 fairly challenging. Despite the fact that medical negligence is quite widespread, there remain many biases toward doctors and against injured patients.
The presumptions in favor of the medical provider can be difficult to overcome. There are several important elements that you must prove to establish a medical malpractice claim.
Local v. National Standards of Medical Care in Medical Malpractice Claims
In medical malpractice cases, there will be a mix of local and national standards. As a rule, 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 governed in large degree by national standards.
Local Medical Malpractice Standards
Medical malpractice in most jurisdictions, including New Mexico, is governed by what are 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. These locality rules are embodied by jury instructions 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 apply also to specialists. A specialist has a similar duty of care defined in terms of 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. Specialists are governed by professional associations and there are fairly rigorous national standards for accreditation as a specialist in any particular medical field. The standards of care for specialists are established by these national standards. It may be reasonably expected that a specialist will meet these standards. Failure to do so would suggest negligence and/or 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 out of patient safety issues, including very serious and recurring preventable medical error. They also come from governmental agencies such as Medicare.
In fact, 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 huge direct and 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 in the midst of 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 in turn 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 very difficult 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 cases are dismissed right out of the gate by the judge.
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 important 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 wherewithal to accomplish these things on their own.
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 virtue of 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 do say there is a claim, the case is ready to go forward including litigation.
Contact an Experienced Medical Malpractice Attorney
Perhaps more than any other type of claim, it is extremely important to contact a medical malpractice attorney as soon as medical negligence is suspected.
Medical malpractice claims are extremely complex. They can take months to fully evaluate due to the necessity of a medical expert evaluation prior to proceeding with a claim.
In light of the deadlines, particularly in claims against governmental medical providers where the first critical deadlines runs in only 90 days, delay can be extremely detrimental to your rights. In fact, missing a deadline will bar your claim completely.
Collins & Collins, PC
407 7th St NW,
Albuquerque, NM 87102