Will suing a lousy doctor do any good?

January 19, 2007 9:35 AM

Medical malpractice suits: What actually happens to an MD when they're sued? In terms of disciplinary actions against the MD, is there a difference between being found liable in civil court versus a settlement?

A couple of years ago my 6-month old sister died after heart surgery (aortic stenosis). At birth the pediatric cardiologist discovered a murmur, but wasn't alarmed as those usually clear themselves up in the first few months of life.

What became clear only after she died, pretty unexpectedly, was that the initial tests done the day she was born showed a severe defect we weren't informed of. In fact, the technician conducting the EKG circled things and made notes, which the cardiologist ignored completely. She saw the same cardiologist at 3 months but again there was no concern. At 6 months she said the baby might need surgery soon. This is when my stepmom took her to a private children's hospital, where they said "this baby needs surgery IMMEDIATELY." She survived the surgery but coded overnight. The surgeons appear to have done everything right, as far as we can tell.

Needless to say, this has been a complete nightmare. I'm trying to help my stepmom with some decisions about how to proceed legally. She places a lot of stock in my opinion, for whatever reason, so I don't want to steer her in the wrong direction.

A medical review board found the cardiologist's care to be "substandard." Now the question is whether to proceed in court. We're not talking about a crooked car mechanic here. I figure when we're talking about this level of trust - putting an infant's life in an expert's hands - we have to do what we can to get it on record that this cardiologist ignored what a technician clearly saw, and while we'll never know if it would have saved her life, the point is we deserved that information.

Is there a benefit to taking this to court? Will just being sued affect anything like the doctor's malpractice insurance, license, etc? What about a liable verdict versus a settlement? Is it better to actually go to court, in terms of what the consequences are for the doctor? I'd really like to spare my stepmom the witness stand and cross examination about why she didn't take the baby to more cardiologists (there are 2 pediatric cardiologists within 50 miles, incidentally).

What, in short, is the deal with these kinds of things?

Sorry for all the context, I don't know enough to know what's important. Thanks for any help.

posted by ultraultraboomerang to law & government (15 comments total)

One thing you could do to help is to pre-screen some lawyers who might be able to answer your questions in an initial free consulation. You can take that step without deciding if you're going to file.
posted by footnote at 9:43 AM on January 19, 2007

Where did this happen? If they want to file a lawsuit, they'll need to do it within the statute of limitations. Do they have a lawyer yet? With these facts, they should be able to get the top medical malpractice attorney in their area.

There are two tracks here, the litigation track and the discipline track. The evidence or results of one track can affect the other track. If the litigation gets important testimony or documents, that evidence can be submitted to the discipline people. The evidence from the discipline may be evidence in the litigation.

A monetary settlement or jury verdict will affect insurance rates. Most medical malpractice cases settle before trial.
posted by ClaudiaCenter at 10:01 AM on January 19, 2007

Seconding "see a lawyer", but usually medical malpractice actions are outside and separate from the licensing and license renewal process. The license board might look back at license renewal if there are an unusually large number of suits, but it's not something to count on. The med mal suit probably will look at the result of an investigation by the medical board (or hospital), though.

If you think something should be done to the license, you would make a complaint to the licensing board, who would then investigate on its own and determine what, if any, action to take (reprimand, suspension, probation, nothing). That's here, if the information in your profile is current and the doctor is in the same state. On preview, as ClaudiaCenter says, documents or evidence found in a medical malpractice suit can be submitted as part of the complaint to the license board.

What "medical review board" do you mean? Did a hospital take some internal action against him already?
posted by dilettante at 10:11 AM on January 19, 2007

Seconding "see a lawyer IMMEDIATELY." Depending on where you are, the statute of limitations might have already passed, meaning your stepmom would not be able to bring a suit at all. Courts are usually pretty strict about things like this, and won't make an exception for "I didn't know I had to bring the lawsuit within a certain time."

IAAL, but I am not your lawyer, by the way.
posted by elquien at 10:49 AM on January 19, 2007

Will just being sued affect anything like the doctor's malpractice insurance, license, etc?

Insurance rates are arrived at by using statistics about likelyhood of collection. Someone who has an above-average number of claims will pay more than someone who doesn't. Someone who has an above-average number of judgments... someone who has an above-average dollar amount to those judgments.... etc.

Will your one case necessarily make a difference or be the straw that broke the camel's back? Maybe/probably not. Will it have an impact as a part of a cumulative effect? Absolutely.
posted by phearlez at 10:57 AM on January 19, 2007

What became clear only after she died, pretty unexpectedly, was that the initial tests done the day she was born showed a severe defect we weren't informed of. In fact, the technician conducting the EKG circled things and made notes, which the cardiologist ignored completely. She saw the same cardiologist at 3 months but again there was no concern. At 6 months she said the baby might need surgery soon.

Not exactly answering your question but I was once on the jury of a malpractice suit with a similar setup (anesthesiologist noticed some things on an x-ray that should have been examined further, but operating surgeon did not report this to the patient or patient's family.) Your case sounds substantially different in a bunch of ways though, and I was in a different state (MA). I most definitely cannot give you legal advice nor should you take my experience as indicative of the strength of your case, but I can try to describe some aspects of what the trial was like over email if you're interested. Email's in my profile.
posted by advil at 11:17 AM on January 19, 2007

Thanks so much for the help. My stepmom does have a friend-of-a-friend lawyer but I thought I'd get opinions from folks who don't have a financial stake in things.

The Medical Review Board, as I understand it, was the first step, essentially to determine if there's enough evidence for malpractice. As in, some lawyers got all the records together from beginning to end and showed it to some doctors. Apparently this is not the first time a complaint about this doctor has made it to this stage.

This is Louisiana, by the way, so our weird Napoleonic law might affect some of this, who knows. Thanks also for the confirmation - I've been telling her I think a settlement gets the same result as a trial, and that it's pretty unlikely there would be a trial anyway, so I'm glad I wasn't lying. Mostly, I just want it on record, somewhere, that she used poor judgment at the very least. It's important to my stepmom to do what she can to keep other families from this as much as she can.

Thanks so much for all the input, this is exactly what I was looking for.
posted by ultraultraboomerang at 11:45 AM on January 19, 2007

Depending on how long a couple of years ago was, it looks like the option of bring a suit may no longer be available to you, according to this site: http://www.expertlaw.com/library/malpractice_by_state/Louisiana.html#6
Good luck though, and perhaps the site above can be of some use otherwise.
posted by wuzandfuzz at 12:07 PM on January 19, 2007

Re: statute of limitations - Louisiana has a patients' compensation fund and no claims can go to court until after the medical review board makes a decision on them, so if the delay in action was because of that, it sounds like the poster's family will be okay there.

Ultraboomerang - if there had been similar problems documented with this doctor in the past, there may be a couple of other questions you might want to look at - find a lawyer who regularly practices in medical malpractice, if the friend-of-a-friend doesn't.
posted by dilettante at 12:30 PM on January 19, 2007

This guy is one of the best medical malpractice attorneys in Louisiana. Call him.
posted by ajr at 2:19 PM on January 19, 2007

IAAL, but not yours. Go to a lawyer, now. Statutes of limitations may apply. Its too complex to be answered here. Ask a lawyer in another area of law who the best medical malpractice attorneys are. Don't go with the "King of Medical Malpractice" on the back of the phonebook unless another lawyer recommends him or her.

This is something to take to a good and experienced lawyer.
posted by Ironmouth at 3:55 PM on January 19, 2007

I see above that AJR is an attorney in the area. I'd trust his judgment. Plus that guy has the super tort lawyer look--I can't really explain it to you, but once you've seen a few you know exactly what they look like.
posted by Ironmouth at 4:00 PM on January 19, 2007

Medical licensing boards are pretty skeptical when it comes to relying upon civil malpractice as a source of their investigation and discipline. Terrible misconduct or negligence often generates no lawsuit, and many of the biggest awards are dragged from weak-minded jurors by clever attorneys in absence of any true fault.

The reverse, however, isn't true: a credible threat of chasing a doc's license is a powerful inducement to settle, and a tough sanction from a medical board is a great thing to wave in front of a jury, where evidence rules permit it.

The obvious self-interest of a plaintiff tends to make boards a bit skeptical of patient and survivor complaints -- boards react much more positively to peer and institutional referals.

For better or worse, though, a suprisingly high proportion of license suspensions and revocations aren't driven by actual injuries to patients. Drunk driving tickets and pharmacy misconduct, or other substance abuse charges, are more likely than a missed heart murmor to cost a doc a license suspension or revocation.
posted by MattD at 5:53 PM on January 19, 2007

I represent hospitals and doctors for a living. As can be imagined, I handle a lot of med mal cases, and far too many birth injury cases. That being said, I don't practice in Louisana with the crazy Napolenic Code they have there. So I can't comment on it even if I were willing to give you legal advice (which I am not). But I can respond generally/hypothetically to some things.

A medical review board found the cardiologist's care to be "substandard."

These findings are not collaterally enforceable (in legal terms, they do not have the effect of collateral estoppel). A lot of times, they are plainly inadmissable in a subsequent case. So because a medical board found this, it doesn't strengthen your case, per se. What it does do is let you know there are concerns with the care which suggests to you that you should contact an attorney.

Now the question is whether to proceed in court.

Definitely talk to a lawyer. There are various concerns here, especially the fact that this occurred "a couple of years ago" which would mean your suit would be barred by the statute of limitations here in Texas which you requires to file or send a notice of health care liability claim within two years. (but again, I don't know the law in LA). But I think that is going to be the biggest issue for you.

We're not talking about a crooked car mechanic here.

This is a very good observation, even if you didn't intend much by it. You aren't dealing with a simple mistake/fraud . You are dealing with questions of medical judgment. Juries want to believe that doctors are doing what they think needs to be done. Juries want to believe doctors are competent. You really have to have a strong case that he didn't meet a standard of care, because juries are going to give the tie to the doctor.

I figure when we're talking about this level of trust - putting an infant's life in an expert's hands - we have to do what we can to get it on record that this cardiologist ignored what a technician clearly saw,

Is that what you really want? In so many cases, the Plaintiffs say things "we don't money; we just don't want this to happen to someone else." I don't know what motivates people to say this. But if it is the truth, then litigation may not be the most effective method for you. Litigation is costly and results in either confidential settlements or wins for the defense 99% of the time. So you really won't get that "PSA" aspect through litigation.

If that is not what you want, and you want money, then try litigation. But if you want money, don't say what you just said and try to cloak it in noble terms. When you say that, you hurt your own case.

Is there a benefit to taking this to court?

Benefit to who? Taking this to court results primarily (and almost exclusively) in financial benefit to you and the attorneys involved. The physician has insurance, so it won't hurt him too much

One idea you need to disabuse yourself of is the idea of a societal benefit from taking this to court. There isn't one. You tie up the courts and use judicial resources. Lawsuits on doctors cause insurance premiums to rise for all doctors which is associated with negative effects upon health care. And suits on docs feed into the rhetoric about the need for tort reform. Society isn't ultimately going to learn about a bad doctor, and it is likely the case that whatever the doctor can learn from his has already been learned by him. So don't think about this as a way to help others. It isn't.

Will just being sued affect anything like the doctor's malpractice insurance, license, etc?

Insurance: yes, it can be affected by legitimate claims that require payment. But claims, aggregated, also have an effect on all doc's premiums.

License: not really. Docs have to report lawsuits. But it sounds like the licensing agency already reviewed this case and made their determination. Anything that will happen to this doc has already happened; the lawsuit isn't going to have any effect beyond that.

Privileges: probably. Docs have to have privileges at hospitals to practice within a hospital. There is a process of peer review and credentialing that has to occur before a doctor can get privileges, and the process has to be done on a recurrent basis. Lawsuits, board reviews, and negative outcomes are all considered when a doctor applies or renews privileges.

What about a liable verdict versus a settlement?

The distinction probably will not effect the consequence on his insurance. It almost certainly will not effect his license since there has already been a review. One thing this distinction will effect is "public awareness" of it, which is pretty much nil even if you get a settlement. But the thing that a verdict will have the most real world effect on is the doc's privileges to practice (although if this is an isolated incident, there probably isn't going to be any real consequence on that either).

Is it better to actually go to court, in terms of what the consequences are for the doctor?

If you want the doctor to suffer, the only thing that is going to really effect him is a negative verdict (which are extremely rare: meritorious suits settle; of cases that go to trial, the defense wins most of the time).

I'd really like to spare my stepmom the witness stand and cross examination

A very valid concern. She will certainly be deposed before any trial and have to be on the stand at trial. This can be a very emotionally painful experience because you relive the experience.

about why she didn't take the baby to more cardiologists (there are 2 pediatric cardiologists within 50 miles, incidentally)

This isn't really something to be concerned with. I have yet to see the "why did you listen to me and not get a second opinion" defense.

What, in short, is the deal with these kinds of things?

You contact an attorney. He tells you if you have missed the statute of limitations. He gets medical records and reviews them and decides if there is a case (or, more specifically, if there is a case in which you can expect to recover enough that he will make a nice chunk of cash). He will take it on contingency (you pay nothing if you lose; you pay costs out of anything you recover; he gets X% of whatever you recover [anywhere from 33-50%]). There are depositions of everyone on your side and everyone on their side. There are expert witnesses hired. Somewhere about a year from when the case is filed, you try to mediate the case with a mediator. Some money will be offered then for sure; the amount of which is dependent on how the case looks for you. The defense will try to get your case thrown you. You will then go to trial if you can get pass their motions somewhere between 1-3 years after it is filed. If it goes to trial, it still might settle. Depending on the complexity of the case, it might take anywhere from 1 week to 1 month (or more) to try it. If the case doesn't settle at trial and goes to a jury, the odds are you will lose if you don't have a grand slam case. Or, if not lose, at least not get a recovery in excess of what was offered to you before trial. The odds of the big win at trial are less than 1%.

Those are some generalized thoughts on med mal cases and are not intended to be legal advice regarding your particular case as I don't know anything about it.
posted by dios at 3:50 PM on January 28, 2007 [1 favorite has favorites]

(Sorry about the length and the obvious typos and omissions, such as "One thing this distinction will effect is "public awareness" of it, which is pretty much nil even if you get a settlement"... which should say 'verdict' instead of settlement).
posted by dios at 3:55 PM on January 28, 2007