If you saw the recent “60 Minutes” story on medical mistakes, you heard actor Dennis Quaid’s detailed account of the massive drug overdose by a hospital that nearly killed his newborn twins. Unfortunately, this was not an isolated event.

Medical malpractice is a serious and long standing problem, causing virtually every type of serious injury, including, among others, birth trauma, brain damage, development and/or progression of cancer from delay in diagnosing it, cerebral palsy, heart attacks, stroke, quadriplegia, paraplegia, other spinal cord and nerve injuries and death.

Medical mistakes are neither rare nor isolated

In 1991 the Harvard Medical Practice Study of medical malpractice, entitled “Incidence of Adverse Events and Negligence in Hospitalized Patients”, was published in the New England Journal of Medicine. That study, which reviewed 30,000 randomly selected patient records from New York hospitals over a one-year period, concluded:

“There is a substantial amount of injury to patients from medical management, and many injuries are the result of substandard care.”

In 2000, the National Institute of Medicine estimated that 44,000 to 98,000 people die each year because of medical mistakes (“To Err is Human”, National Institute of Medicine, March 2000). To put that number in context, it is more than the number of people who are killed annually by auto accidents, breast cancer or AIDS.

And that number is just for the patients killed by medical malpractice – it does not include the many more patients who suffer serious, life-altering injuries from medical malpractice such as brain damage, birth injury, cerebral palsy, quadriplegia, paraplegia, heart attacks, stroke, spinal cord and nerve injuries, to name just a few. 

This unfortunate reality has been acknowledged by the medical profession itself. As the New York Times reported in “Errors That Kill Medical Patients,” a 12/18/02 article based on a survey by the Henry J. Kaiser Foundation and Harvard School of Public Health:

“Fully 35 percent of doctors said that either they or members of their families had experienced medical errors in the course of being treated, and most said the errors had ‘serious health consequences,’ such as death, long-term disability or severe pain.”

“Three in ten had seen an error that caused serious harm to patients outside their families in the past year.”

These and other studies also show that, contrary to what insurance carriers and some medical societies would have you believe, victims of medical malpractice rarely sue. Those who do sue typically have “serious health consequences,” and need money for the medical care, pain management and/or lost income caused by the medical malpractice.

Why Medical Malpractice claims are difficult to win

In light of these studies, involving the federal government, Harvard University and physicians, you might think that winning a medical malpractice case should be easy. Unfortunately, the exact opposite is true: medical malpractice cases are among the most difficult personal injury cases to win.

Before getting to reasons why that is so, we should define medical malpractice and lack of informed consent and discuss the medical malpractice statute of limitations. Medical malpractice is treatment by a medical provider that falls below the applicable standard of care for that condition. When we speak of medical malpractice, we typically think of treatment provided by doctors but other health care providers can also render negligent care that result in serious injuries. Such health care providers include hospitals, nurses and physicians assistants, dentists, chiropractors and podiatrists, among others.

Regardless of the type of health care provider involved, the attorney must prove that the health care provider was negligent (acted below the applicable standard of care) and that the negligence caused the injury. Negligence by itself is not enough, and a bad medical outcome by itself is not enough. We must prove that the negligent act caused the bad outcome. 

Lack of Informed Consent

You also may have heard of a type of medical malpractice called lack of informed consent. In New York lack of informed consent claims are governed by a specific statute (Public Health Law §2805-d) which has multiple requirements and defenses. Generally, lack of informed consent means the failure of the health care provider rendering the treatment to disclose the alternatives and reasonably foreseeable risks and benefits. A patient claiming lack of informed consent also must prove that a reasonably prudent person in the patient’s position would not have undergone the treatment if properly informed and that the injury at issue was caused by the lack of informed consent. 

A Shorter Statute of Limitations

Like all personal injury claims, a statute of limitations applies to medical malpractice cases. Generally, statutes of limitations specify the period of time in which a lawsuit must be formally started for a particular type of claim. As a practical matter, failure to start a lawsuit with the specified time period would prevent you from ever bringing the lawsuit. It is very important to keep in mind that the statutes of limitations in medical malpractice are typically shorter than in most other types of personal injury cases, can be complex and have limited exceptions.

The general statute of limitations under New York law for adults is two and a half years from the negligent act but, again, there are exceptions that may apply in certain specific circumstances. Since the exceptions could extend or shorten the time to start the lawsuit, it is important to consult an attorney as early as possible.

Insurance Industry Propaganda Breeds Juror Bias

With that background, we turn to the reasons why medical malpractice cases are among the most difficult personal injury cases to win. Despite the overwhelming proof discussed above that medical malpractice is a widespread and long-standing problem, medical malpractice insurance carriers and some medical societies continue to fight medical malpractice claims vigorously, both in the media and in the courtroom. They use the media to try to convince the public – including potential jurors -- that medical malpractice cases are frivolous despite the overwhelming evidence to the contrary. They use the courtroom and litigation generally to dissuade injured patients from bringing medical malpractice cases by making them extraordinarily complex and expensive. 

For these reasons and because medical malpractice cases typically involve voluminous medical records, complex laws, statutes of limitations and medical issues, extensive medical and legal research and medical experts, they are among the most difficult personal injury cases to win. Given that and the very serious injuries that result from medical malpractice (e.g. brain damage, birth injury, development and/or progression of cancer from delay in diagnosing it, cerebral palsy, heart attacks, stroke, quadriplegia, paraplegia, other spinal cord and nerve injuries), in our judgment, choosing an appropriate attorney and law firm is critically important.

Choosing the Right Medical Malpractice Attorney Makes a Difference

To choose an appropriate medical malpractice attorney, you may first have to get beyond the advertisements. Personal injury attorney advertising is rising rapidly. Every time you turn on your TV or radio there are more personal injury attorney advertisements. Ironically, most personal injury attorneys and, we believe, most of the better personal injury attorneys, did not want to advertise and resisted for a long time. 

That is quickly changing. Many of the better personal injury attorneys are now advertising because, like it or not, they realize that advertising is not going away. So how does a person seriously injured by medical malpractice determine whether a given advertising attorney is one of the better medical malpractice attorneys? 

First, the problem: anyone can advertise. Legal experience, skill or expertise in a particular legal specialty is not required to advertise. Attorneys with little or no experience, skill or expertise can advertise heavily in local phone books, billboards, television and radio. 

These attorneys can claim huge verdicts where you live to entice you to call quickly. Unfortunately, such claims may be very misleading. There are too many examples of attorneys with limited or no experience trying medical malpractice or any other cases locally or anywhere else advertising heavily and making such claims. Historically, some of the biggest advertisers did not try cases at all and simply farmed them out to other attorneys in exchange for generous referral fees.

Getting Beyond the Advertising – Attorney Peer Ratings

So how do you get beyond the advertisements to find a highly experienced attorney with expertise in medical malpractice cases? Think about what you would do before hiring any professional to help you with a very serious matter affecting your life. You would not just respond to the first TV commercial or call the person with the most billboards. You would do some research. 

Fortunately there are several easily accessible research tools. You can check the attorneys’ credentials by visiting The Best Lawyers in America, Martindale-Hubbell and the American Board of Trial Advocates.

“The Best Lawyers in America” is a national organization that lists by specialty the attorneys and firms in each geographical region who other attorneys rate among the best in their specialty. As you would expect these attorneys are highly experienced in their fields. Look for firms who have several attorneys listed in the personal injury section – attracting such attorneys says a lot about the quality of the firm.

The American Board of Trial Advocates is another excellent resource because it has rigorous admissions standards and only admits highly experienced trial attorneys. This is very important because the better personal injury attorneys are all highly experienced trial attorneys

In serious matters affecting your life you want to know if in addition to superior experience and legal skills, the attorneys and firms also practice at the highest ethical standards. “Martindale-Hubbell” is a highly respected national publication that uses peer reviews to rate attorneys and firms on both the quality of their legal work and their ethical standards. Look for attorneys and firms that receive both an “A,” their highest legal quality grade and a “V” their highest ethical grade. 

Additional potential sources are other attorneys or friends and family who are familiar with the legal community. This can be especially helpful if they have had a positive experience with the attorney or firm they are recommending. 

Questions to Ask Prospective Attorneys Before You Retain Them

After you narrow your search through such inquires and the web sites suggested above, go to the firm's web site to learn more about their experience in medical malpractice. Then meet with the attorney. Ask whether they have taught Continuing Legal Education (CLE) courses involving medical malpractice. Attorneys who teach these courses are teaching other attorneys and are usually the most experienced and highly respected in their field.

Also ask the attorney about that attorney’s experience in handling and actually trying medical malpractice cases. Look for attorneys who have extensive knowledge about and trial experience with medical malpractice cases. Look for firms that have the personnel and resources to handle these highly complex and expensive cases thoroughly and skillfully. For medical malpractice cases, look for whether the firm has nurse consultants on staff, top flight medical research resources, and an extensive network of highly qualified medical experts.

The Faraci Lange Approach

We practice what we preach. Our medical malpractice cases are handled only by senior attorneys who have extensive knowledge about and trial experience with medical malpractice cases. Those attorneys are supported by teams that typically include junior attorneys, legal nurse consultants and highly qualified medical experts. All members of the team have access to first rate resources for legal and medical research.

Collectively, our medical malpractice attorneys have over 200 years of experience as trial attorneys and have handled virtually every type of medical malpractice claim including those caused by the various types of surgery, antibiotics like gentamicin, other medications, and failure to diagnose cancer and other illnesses.

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