by Keith Clarke, Esq., Founding Partner
We are approaching, if we have not already arrived at, a day when it is almost impossible to trust anything you read or see. Depending on which channels you are tuned into, the messages you hear will likely be diametrically opposed. Now enter artificial intelligence, which allows you to convert a half-baked thought into a well-executed one with the click of a few buttons.
I will be writing a series of articles in an attempt to translate my experience working on medical malpractice cases for potential clients and practitioners alike, so they are better able to understand the process. My hope is that it will provide value but also be enjoyable. That it will strike both a serious and, at times, playful tone. After all, even in the wake of a devastating medical consequence, it is possible to see silver linings.
I suppose the best place to start this discussion is with a basic definition of what medical malpractice is and what it is not. Recently, I have discussed with people the horror of a cancer diagnosis and questioned whether the medical attention, or inattention, received resulted in a delay in the diagnosis. Many are surprised that cases involving a cancer diagnosis could constitute medical malpractice. Most people imagine a case where a doctor performing surgery leaves behind his watch, amputates the wrong limb, or does something similarly egregious.
However, malpractice cases come in all varieties—birth injuries, pediatric malpractice, surgical malpractice, delays in diagnosing infections, and nursing home malpractice, to name but a few. The foundational question that must be answered is whether the medical professional—it is not just doctors; the law also applies to nurses, assistants, and mid-level providers such as nurse practitioners and physician assistants—did something they should not have done or failed to do something they should have done. Simply put, did they screw up the treatment? Most people who call me already suspect this is the case—that is why they are calling me. Sometimes, people end up with a bad medical outcome and suspect it was the result of some error but cannot articulate how or why. I have to investigate the case.
So, how do you go about determining whether a doctor or health care professional screwed up—or, to put it another way, how do you determine whether they departed from accepted medical practice? Before this question can be answered with any degree of definitiveness, an exhaustive review of the medical records must occur. Depending on the type of treatment a patient underwent, this can be a labor-intensive process. The medical record review may involve anywhere from several hundred pages to thousands upon thousands of pages. It may include records from a number of different sources—a primary care physician’s records, a hospital record, a rehabilitation record, and so on.
The way you begin to understand what happened is through an in-depth review of the medical records—page by page by page by page. Anything less will not give you the full picture of the case. The review of these records must be taken with a grain of salt, however. While they contain valuable information, they were created by the same people who may have screwed up your care. They must not be trusted with complete confidence.
Tune in for the next article, and I will walk you through how I go about reviewing medical records to assess standards of care and whether the information contained within those records can be trusted.
