Easy Money?

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If someone wants easy money, which isn’t deserved, to compensate for a harm which isn’t real, hiring a lawyer and suing a health care provider is a particularly foolhardy way to accomplish this. The idea that patients and lawyers act together to get compensation for injuries which aren’t the fault of the individual being sued is not grounded in reality.

Any claim against a health care provider is subject to scrutiny at every step in the process. Whether a claim has merit depends to a large extent on the substance of the patient’s medical record. The record is what lawyers look at to determine whether to spend the additional time and money needed to determine if the claim warrants further investigation. At the same time, the record is used by the health care providers and their risk managers to determine if the claim has merit, the cost of defending the claim, and the likely range of compensation which will be needed to resolve the claim. In fact, the patient’s record is almost always the single most important piece of evidence in any medical malpractice case.

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The medical record is used to make these evaluations is created by the people who provide the care at issue. How they create the record is critical to supporting any potential claim based upon medical care. There are hospital rules and regulations, policies and procedures which prescribe the required content of the record. There are rules for how to change the record, how to sign the record, and sanctions for failing to do what is expected in making the record.

To obtain a license to operate, a hospital in Arizona must have medical records departments which satisfy the regulations promulgated by the Arizona Department of Health Services. Any hospital which cares for Medicare eligible patients or Medicaid recipients must satisfy the additional record keeping requirements of C.M.S.

To operate in Arizona, hospitals must also have recordkeeping rules and regulations which apply to physicians who practice at the facility. If the records aren’t prepared in the manner and at the time required, the physician loses the ability to practice at the facility.

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In sum, the record which forms the basis of the potential claim is a highly regulated piece of evidence with requirements from the state the federal government and the accreditation agency for the hospital.

In addition to the support which must exist in the medical record, almost every malpractice claim must also be supported by the testimony of a physician or other provider who practices in the same specialty as the potential defendant. The required testimony must be provided within a short time after the lawsuit is served and answered. The affidavit containing the testimony must describe the specific care which the expert believes was unacceptable, what should have been done instead, and how the result to the patient would have been any different if the doctor had provided acceptable care.

Doctors in Arizona are reluctant to testify that a colleague was negligent in caring for a patient. There are many reasons why they prefer to remain silent, rather than risk the professional retribution of the potential defendants in the case. The merits of those reasons are outside the scope of this article. Their concern with professional ostracism is real to them, and their unwillingness to become involved is real to their patients. As a result, expert testimony required in Arizona medical malpractice cases almost always comes from a physician who practices in another state. The need to locate these individuals and the time and expense of communicating with them and their fees for providing medical-legal advice are also real.

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The hurdles described above need to be overcome by a patient and an attorney before the case can be filed. Hopefully this has conveyed some sense of the daunting task required to file a medical malpractice case. If a claim gets through the process above, it can be filed.

Lawsuits are governed by rules of procedure, which provide defendants ways to challenge the merit of any lawsuit as it proceeds. There are rules of procedure which allow a defendant to test the sufficiency of the claim by the plaintiff in different ways at different stages of the proceeding. For example, a defendant in any case can file a motion for failure to state a claim, Rule 12, a motion for summary judgment, Rule 56, or a motion for judgment as a matter of law, Rule 50.

These are a few examples of the challenges provided by rules of procedure to defendants which permit challenges to the merit of a claim at various stages of litigation.

Hopefully this gives the reader some sense of the minefield medical malpractice plaintiffs must go through to resolve a case by settlement or by judgment on a verdict at trial. I’ve discussed only a few of the most basic hurdles which prevent frivolous claims. The idea that a wave of frivolous claims needs to be discouraged by tort reform or that it is too easy to sue health care providers is specious. Barry E. Lewin

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