Medical Malpractice Cases
Video by Stephen Karp & Peter Hart
How do you know if you have a valid medical malpractice case? The best thing to do is to talk to a personal injury lawyer who can review the aspects of your situation in detail.
This video is a candid conversation between two experienced medical malpractice attorneys, during which they discuss their general overview of medical malpractice, what constitutes a potential winnable case, and how a personal injury lawyer will decide which medical malpractice cases to take on. They also talk about the misconception and myth that lawyers just blatantly suit is these situations – there is a substantial outlay of expenses to create a solid case, including the need to often hire expert doctors in the exact medical field of the malpractice.
Our Video Contains Medical Malpractice Cases, Statistics & Stories
If the personal injury case is well defined with documentation, there is often a settlement before going to court. Once it goes to trial, however, most cases are ruled in favor of the doctors and hospitals.
Below is a transcription of the video. We hope that the conversation between Stephen Karp and Peter Harp gives you a clear understanding of how a personal injury will view your medical malpractice situation. As always, for additional consultation, direct contact with Karp and Hard is always encouraged.
Medical Malpractice Conversation Video Transcript:
>> SLIDE: KARP & HART MALPRACTICE CONVERSATION
>> PETER HART: Good morning Steve, how are you today?
>> STEVEN KARP: Pretty good Pete!
>> PETER HART: Alright! Today’s topic, I’d like to ask you some questions on medical malpractice a big area of the law that we practice, something that we deal with every day for thirty or more years. People who are injured when they have surgery done, they had a bad result, they don’t get better, and they call and say well I want to sue my doctor or my hospital. Now how do we do that?
>> STEVEN KARP: Well, there’s a difference between a medical complication and medical malpractice. There are some surgeries done by the best doctors and in the best way, and you’re still gonna get a bad result, a complication – it’s no one’s fault. But then there’s medical malpractice. The legal definition is failure to follow accepted standards of medical care, where the doctor deviated from what is accepted by other doctors. The real definition is – it’s really gotta be a medical screw-up to win a case -
>> PETER HART: Big time…
>> STEVEN KARP: It can’t just be a little bit – it’s gotta be ‘big time’. That’s how it is in Pennsylvania these days!
>> PETER HART: How hard is it to win a case?
>> STEVEN KARP: Well, the new statistics came out, it was very interesting – in Pennsylvania – not counting Philadelphia – if you take state-wide except for Philadelphia county, the cases that went to trial, over ninety percent of them were won by doctors, lost by plaintiffs.
>> PETER HART: Wow…
>> STEVEN KARP: That is a huge result, and that just shows you how hard it is…
>> PETER HART: Why would we even bother to take a case?
>> STEVEN KARP: Because good cases settle. Those cases i told you before – where it’s clear – where anyone would come in and say yes, they made a mistake. Where they gave you prescriptions and it was for the wrong person, or the wrong amount, or your had something written down – the case is settled. But the cases that go to court, you have more of the difficult time. It’s very expensive. if you handle an automobile accident case, you have dispositions, and you have the doctor’s reports and all that, but a medical malpractice case, you need experts to prove it. Nothing is obvious; you need an expert the same specialty as the doctor you’re going after.
>> PETER HART: So if it’s a botched operation, an orthopedic operation…
>> STEVEN KARP: I need an orthopedic doctor – and it’s hard to get experts, iit is hard to get doctors to testify against other doctors, and these doctors are very expensive. So number one, you’ve gotta get the expert – which is difficult- – and then you have to pay for it! And in the typical malpractice case – nothing’s typical – but if you asked for an average, you’re spending anywhere from forty to a hundred thousand dollars in expenses to bring a case to trial.
>> PETER HART: So when you’re saying, “You are spending…” – who’s the ‘you’ you’re talking about?
>> STEVEN KARP: The ‘you’ is the attorney! And if we lose, and anybody handling malpractice cases over the years has lost, not only don’t get paid…
>> PETER HART: So all the hours that are put in to the case, hundreds and hundreds of hours preparing it, getting ready and going to trial, plus the attorney – our firm, for example puts money up front – fifty to a hundred thousand dollars – if it’s a zero verdict, we don’t get that money back…
>> STEVEN KARP: …and that’s why selection is so important, and that’s why the myth that you hear all the time that these lawyers are just suing any doctor who gets a bad result, it’s a myth, it’s not true, because if you did, you’d run out of money very quickly. The other problem is at trial, jurors like their doctors…
>> PETER HART: Right.
>> STEVEN KARP:…and ninety eight percent of all doctors do a wonderful job, but like any profession, there are bad people in it – there are bad lawyers, there a re bad plumbers, there are bad doctors.
>> PETER HART: And it could be good doctors that make bad mistakes.
>> STEVEN KARP: Yes, but most of the time over the years, you’ll find it’s really the bad doctors that keep on doing it. The tough part is to get the jury to put down their core belief are great – and they are – but that this doctor in this particular case made a horrible mistake.
>> PETER HART: Give us an example of one of your more interesting or most interesting case
>> STEVEN KARP: Didn’t think you’d ask, Pete, so I’ve just brought something here which I’ve shown groups and people. And this is a case , probably about twenty years ago, but it’s my most interesting, because it’s the most unbelievable. This was left in a client after surgery. Now, when I say this, the exact same towel – it wasn’t this towel, but it was the exact same size – and that was left inside one of my client’s stomachs. And it was all bunched up, and of course it was wet and put in there. And this was used to put on the table, most of the time doctors put it on the table to put instruments on, in this case the doctor wanted to use it as a sponge, and the nurses didn’t count it, ’cause they count the instruments and the sponges – they didn’t count it because they thought it was just for the instruments on the table.
>> PETER HART: Steve, we have the principle the law as you and I practice – it’s no harm no foul. You know, if somebody’s injured due to the carelessness of the doctor is there technically as case – yes – but the question is, was there really an injury. Was there an injury in this case?
>> STEVEN KARP: In this case there certainly was, because for a month after surgery he wasn’t feeling real good as you can imagine, and then they had to open him up again. So there was. But you’re right, in a lot of cases and I’ll give you a very quick example, and it happens in cancer cases where somebody comes in and they have a lump and the doctor says, no, it’s fine, it’s just a cyst forget about”, and then they go in another month to another doctor who discovers it. Nothing happened in that month…
>> PETER HART: And the malpractice is the failure of the first doctor who to diagnosis it…
>> STEVEN KARP: If you take that same case and it was a year, and it led to a different stage of cancer – then you could have a case.
>> PETER HART: So, you have the difference between a month and a year, and I assume the growth rate of the cancer, how fast is spreads…
>> STEVEN KARP: It’s all, and that gets back to point number one with the experts. And you need oncology experts, hematology experts, to show that the malpractice caused the harm.
>> PETER HART: How many cases do you accept compared to the number of calls or people that you have talked to about med mal?
>> STEVEN KARP: For every fifty, seventy five, a hundred calls – we have a case.
>> PETER HART: Fifteen to twenty minutes with each person that we talk to!
>> STEVEN KARP: You’re exactly right, and when they call after they speak to us if there isn’t a case, I think they are at least relieved because they know there wasn’t – it was just something that happened, they don’t carry that anger around with them, and hopefully we do a service to them.
>> PETER HART: And that happens all the time in a lot of our calls, where you can’t help them but at least make them feel less anxious about the whole thing.
The name “trial lawyer” has suffered a bad rap in the last 20 years. Going back to the beginning of our nation, trial lawyers were admired as men who represented the rights of citizens falsely accused or wronged by society.
Trial Lawyers in History
John Adams was one of the greatest trial lawyers in the colonial period. Thomas Jefferson tried cases in court. Perhaps the best known trial lawyer of all time was Abraham Lincoln who rode the circuit in Illinois and tried thousands of cases. Lincoln didn’t represent big companies. His clients were mostly poor who sometimes could not pay him in money but in goods and services.
Clarence Darrow and William Jennings Brian were two of the best trial lawyers in the early part of the 20th century. They opposed each other in the Scopes monkey trial, one of the greatest trials of all time. Even fiction glamorized the trial lawyer. Probably the most popular era of the trial lawyer was when Gregory Peck played Atticus Finch in To Kill a Mockingbird. Consider Al Pacino in his great trial lawyer roles. How many young men and women applied to law school after seeing Joe Pesci play a struggling trial lawyer in My Cousin Vinny.
Tort Reform Impacts Trial Attorneys & The Justice System
But then in a famous speech in the 1980’s, George Bush referred to those “tassle-shoed trial lawyers” to imply that all they did was persuade stupid jurors to give jackpot justice to people bringing frivolous lawsuits. His son, George W. Bush, and the rest of the Republican party took up the mantel, and tort reform was on its way. Of course, to have tort reform, they had to demonize the American trial lawyer.
American Trial Lawyers Association (ATLA) Changes Name
It got so bad that the American Trial Lawyers Association (ATLA), which has as its members most of the trial lawyers in this country, had to change its name. Focus groups convinced the name change from the American Trial Lawyers Association to the American Association of Justice, the name today. Even the Pennsylvania Trial Lawyers Association, one of the most powerful state lawyer groups, changed its name to the Pennsylvania Associates of Justice.
Pennsylvania Trial Lawyers are Pushing Back
To their credit, a group of Pennsylvania trial lawyers said “enough is enough.” They were proud of being a trial lawyer representing innocent victims who were injured by the fault of other parties, and they didn’t feel ashamed of doing so. This group is now trying to change the name back to the Pennsylvania Trial Lawyers Association. (PaTLA). A vote of the group will shortly be held.
How did all this happen? How did trial lawyers who represent ordinary citizens in their fight against insurance companies, drug companies, big business and powerful medical associations get the blame? Trial lawyers take most of their cases on a contingency fee basis which means they only get paid if their client wins. The client, who would not have the money to fight big business, can hire the best lawyer and pay nothing unless he wins his case.
The answer is that it all happened because of money. Big business did not want to pay out damages to those individuals that it injured because of defective products, bad medication, polluted waters, unsafe working conditions, etc. By demonizing the trial lawyers, they try to make it more difficult for a lawyer to win a case in the courtroom and in effect, have a system of justice where only the rich can play.
West Chester, PA Trial Lawyer Opinion
When it comes time for the voting, I will vote to change the name back to the Pennsylvania Trial Lawyers Association. I am proud to be a trial lawyer on Chester County and I don’t mind if everyone knows it.
When you are a lawyer handling personal injury cases, you can’t help but feel sadness and empathy for your clients who are injured. You may represent a client for up to three or four years and in most cases, you never know that person to be in good health. By the time I meet the client, they are already injured, sometimes very seriously. Obviously, you wish for a speedy recovery but sometimes that doesn’t happen. I have seen many clients who live in constant pain from accidents involving automobiles, medical malpractice, nursing home neglect, dog bites and slip and falls.
What’s worse than representing an injured client, is an injured client who is a child. Childhood is the time in our lives when we’re supposed to have no problems, no worries, and certainly, no health issues. Unfortunately, I have represented dozens of children who have been injured by the negligence of others. A few memories stand out after so many years practicing personal injury law in Chester County, PA.
Chester County Birth Injury Medical Malpractice Cases
The most horrific cases are those involving a child injured at birth. Some birth issues are God’s work, but others arise from physician and nursing negligence. I have represented children who would have been completely healthy were it not for a delay in their delivery in the hospital. These were cases where there were signs of fetal distress, yet the nursing staff either did not bring it to the attention of the doctor or the doctor disregarded the signs of distress from a fetal monitor. The children were born with Cerebral Palsy which not only has a life altering effect on the child, but also on the parents and siblings as well. The attorney cannot help but share in the sadness.
West Chester, PA Dog Bite to Children Personal Injury Cases
I represented a 5 year old boy who was mauled by a Pit Bull. The wound required several surgeries and not only left the child with a horrendous scar but a limitation in his mobility. When you have to present a dog bite personal injury case and your damages include not being able to play with the other children, it tugs on your heart.
Doctor & Hospital Child Illness Misdiagnosis
Of course, there are those cases in which death prevents you from ever meeting your client. A child contracted Rocky Mountain Spotted Fever during a summer camp. Both the doctors and the hospital failed to make a timely medical diagnosis. If the proper medication was given, there would have been a complete recovery. It was not, and because of this medical misdiagnosis the child, 8 years of age, died from the disease. Although I never met the little girl, through family pictures, videos and stories about her, I felt that I knew her.
Sometimes I wish I only did commercial litigation where the worst problem a client has is a loss of money.
In a recent Pennsylvania Common Pleas case, a Judge ruled that if a jury so decides, a doctor may potentially be found to be liable for his patient’s injuries – a patient who was injured in a car accident after leaving his office an hour after passing out during an examination. Apparently, the patient who became a plaintiff due to his automobile accident injuries was enrolled in a drug rehabilitation program where he was receiving regular medical help including methadone treatment. Although the patient passed out during his treatment, the doctor felt he was okay to drive his motor vehicle from the office only an hour later.
The judge was asked to make a ruling on what is called a Summary Judgment Motion. This is a Motion where the defendant attempts to stop the case from being decided that by a jury, and instead requests that the judge throw the case out. The Judge ruled however, that there was enough of a factual dispute to require that it be heard before a jury who would be in the best position to determine the accuracy and credibility of the witnesses’ testimony.
This case is very similar to other medical provider and doctor liability cases where they are charged with making certain decisions or implementing restrictions depending on the patient’s condition and circumstance. For example, if a psychiatrist recognizes that a patient is acutely suicidal or homicidal and lets that patient leave his or her office without doing anything more, he or she could possibly be held responsible for injuries caused by the patient.
This is also somewhat akin to what we call the Liquor Dram Shop cases where a bartender serves a person alcohol who he or she sees is visibly intoxicated. The bartender could arguably be held liable for serving that person more alcohol and then permitting the intoxicated patron to drive away from the premises causing an accident. It is also similar to a case where someone gives the car keys to a person who he or she knew was too intoxicated to drive.
This is why the judge decided that the methadone case was to be heard by a jury so that it could hear both sides of the issue; learn all the relevant facts and then determine if the doctor was negligent.