How Long Do Medical Malpractice Claims Take To Get Resolved?
The length of time it takes to resolve a medical malpractice claim depends on the complexity of the case, and on how obvious the medical malpractice is. If the malpractice is clear, well-documented, and incontestable, then there will be a settlement. There will not be a trial, and that case may be able to be resolved within a couple of years—after the healthcare provider and its attorney have forced the plaintiff’s Medical Malpractice Attorney to go through all of the steps to put them at risk, and all of the expense that’s undertaken to get there. That can take up to two years. For the case to go to trial, it’s not uncommon for the case to run four years, or even more. The healthcare providers and their attorneys are notoriously slow, evasive, and stretch out the process as much as they possibly can, in hopes of increasing the expense, in hopes of increasing the likelihood that the plaintiff will simply lose heart, settle or drop the case, and it will simply go away. Unfortunately, that’s a fairly successful tactic. It can take four years or more to pursue a case all the way through from beginning to end.
What Makes It Difficult To Establish A Healthcare Professional’s Wrongdoing In A Medical Malpractice Claim?
The difficult part of establishing a healthcare professional’s wrongdoing is when it’s a very technical and involved procedure. For example surgeries such as spine surgery, in vitro surgery with a fetus, and other similar procedures are highly technical and intricate. When you get right down to what occurred, and you start parsing exactly what the healthcare provider actually did, it becomes very difficult to identify when the healthcare provider diverted from the appropriate standard of care into the negligent delivery of that procedure. When it’s very complicated, you can have experts of the same discipline who have performed hundreds of the same surgeries, who will disagree on what occurred, what could have caused this result, and whether that occurrence is a result of or caused by a breach of the standard of care.
In other words, that the standard of care or the way the procedure was supposed to be done was not provided in that way, in that method which caused the injury that the plaintiff complains of. It gets very technical, and you have experts argue back and forth about whether it’s below the standard of care, what is the standard of care, and did this violate the standard of care that it is very difficult. These cases are not easy. They are not for the faint of heart, and they can only be pursued and successfully completed when there are good experts that can establish and document an obvious or known breach of the standard of care. The grey area between the extreme of what is known, on the one end, and obvious negligence, on the lower end, is very wide. In that grey area, the likelihood of the plaintiff losing is probably 80%.
How Does Signing A Consent Form Prior To A Medical Procedure Impact A Medical Malpractice Claim?
A signed consent form prior to a medical procedure is usually a requirement where any claims or any controversies will be handled in arbitration. Whenever you sign a consent form, whether it’s at the doctor’s office, or for a credit card, many forms have what’s called an arbitration clause. When you sign that, you are waiving your rights to have access to the courts of the United States or the state of Utah. You are agreeing that any controversy or claim that you want to make against that healthcare provider, or anyone who is a party to that contract, will be done in arbitration. Why would the doctors and the insurance industry and businesses rather send their disputes to arbitration rather than to the courts?
The answer is simple. They, meaning the defendants who forced the plaintiffs to sign these consent forms, have a distinct and significant advantage in arbitration that they would not have before the courts; either federal or state. They are so afraid of the courts, because real justice can be administered there. They want to game the system and force people to go to arbitration where arbitrators are beholden to the industries that hire them—the medical profession, and the insurance industry or industries that have contracts. You do not get, in those forms, an unbiased, fair or just result. The procedure, if you’ve signed a waiver or a release form, is that most of the time you will have to go to arbitration. Attorneys attack those waivers. There are ways to be successful, but most of the time, they are unassailable. The presumption in the courts is that when you’ve waived your rights to go to court, you’ve waived them and you made your choice.
Congress had started to limit the requirements that industries can impose on consumers to go to arbitration. Those limits are being undone, and in the future it’s going to be more prevalent that when there is a waiver; there is going to be more arbitration. More biased decision-makers will determine whether there was medical malpractice, which rarely happens in arbitration. It’s a stacked system and it’s unfair. However, if you don’t sign a release or the arbitration agreement, most doctors or hospitals will not treat you. The system is really rigged and gamed against the consumer and against the patient. It’s a sad state of affairs and is not for the faint of heart. It is unbelievably difficult and complicated.
In the last case I handled, there was an expert from New Jersey who was an anesthesiologist. One of his patients had an aneurysm and died on the operating table. Fortunately, we were able to establish, because of the records of the operation and the blood pressure, the surgeon and the anesthesiologist failed to maintain the blood pressure of this patient during the surgery. The patient’s blood pressure spiked and caused the aneurysm to burst and killed him on the table. Even that, which eventually settled, cost $60,000 of expert witness fees in order to get to a settlement. The system, especially in the state of Utah, has been set up through tort reform over the last 20 years, so that unless someone dies or has a lifelong injury, from an economic standpoint, these cases can’t be brought because the risk is too high.
If you have a limitation of non-economic damages to $400, that is nothing in many of these kinds of cases. There are victims whose entire lives are ruined by malpractice. Even if the reward were millions of dollars to keep someone alive, all of that money goes to pay for their future existence and not as compensation for what happened. It’s a travesty. Victims don’t receive compensation for what happened, because there are legislatures that are on the bandwagon of, “tort reform is driving doctors out of the practice of medicine.” It’s propaganda. America has it so wrong in so many ways; it’s sad. Tort reform is nothing less than saying, “We don’t trust our judiciary to be an effective branch of government.”
What Sets You Apart From Other Attorneys In Handling Medical Malpractice Cases?
What sets me apart is my willingness—when I see a case that I think is meritorious in this economic and political setting that we have, no corner will be cut, no expense spared in getting justice for the client. It’s the quality of life that these patients are going to live in most cases that justify these actions. We want them to be compensated for their future living expenses as well because a mistake that a healthcare provider has made may have caused someone to lose the productivity and enjoyment of the rest of his or her life. Whatever it takes to document that, to make it obvious to the jury and to the defendant medical provider, is what we’re going to do if we accept the case.
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