10 Questions for … a Malpractice Attorney

According to the Journal of the American Medical Association (JAMA), medical malpractice is the third leading cause of death in the U.S. Only heart disease and cancer are more fatal.

In 2017, victims of medical negligence received more than $3.9 billion in malpractice payouts, Diederich Healthcare reports.

Alarming, right?

Fortunately, there are steps that you can take to avoid becoming another statistic. Jason Konvicka, a partner in the Virginia-based law firm of Allen, Allen, Allen & Allen, knows them all.

One of the state’s “Super Lawyers,” the trial attorney has won some of the largest personal-injury awards on record in Virginia. Recently, he secured the largest malpractice award in state history.

SuperMoney sat down with Konvicka to discuss troubling trends in medicine, and to show you how you can better protect yourself from medical malpractice.

For starters, what’s the legal definition of medical malpractice?

Jason Konvicka: Medical malpractice occurs when a healthcare provider deviates from the recognized “standard of care” in the treatment of a patient. In essence, it boils down to whether the provider was negligent.

How do you determine if someone is the victim of medical negligence?

A malpractice claim exists if a provider’s negligence causes injury or damages to a patient. However, experiencing a bad outcome isn’t always proof of medical negligence. Also, on occasion, healthcare providers—in an effort at complete honesty—will sometimes tell a patient that they, themselves, have made a mistake.

Why would providers own up to a mistake? Well, an honest apology might prevent a future claim, or provide an opportunity for a settlement without the need for litigation. Insurance companies typically want to settle with an injured person directly if they can. But this allows them to do so before the full extent of injuries are known. It also prevents the injured person from hiring an attorney who could have increased the settlement value of the claim.

It’s vital to note, however, that the prosecution of medical malpractice cases—in addition to having a high likelihood of failure—can be extremely expensive, stressful and time-consuming. More than 80% of malpractice lawsuits end with no payment whatsoever to the injured patient or their survivors.

Consequently, most experienced medical malpractice attorneys will not pursue a case unless the injuries and damages documented in the records are substantial and justify it.

What should you do if you think you’ve been subjected to negligent care? 

Contacting a seasoned malpractice attorney should be the first step. A thorough review of the case details should be conducted to determine whether the case is actionable. This includes everything from securing pertinent medical records to interviews with the patient, family members, and friends

Statutes of limitation—deadlines by which a lawsuit must be filed or be permanently barred—differ from state to state, as do the procedural requirements. It’s best to seek guidance from an attorney licensed in the state where the alleged malpractice occurred.

What can you do to lessen the likelihood that you’ll experience medical malpractice?

Being proactive about medical care is undoubtedly the best step. Patients should do research to understand their health condition, and document their symptoms. They should ask healthcare providers a written list of questions that they feel are important, and expect—indeed, demand—full and complete answers.

It’s also critical not to allow yourself to be intimidated by the medical system. Speak up and advocate for your own well-being. If patients sense that something is wrong, they should tell—or ask—their healthcare providers. Although it’s important to trust your doctor or nurse, it’s also important to listen to your body … and use common sense. Also advisable: Have a family member or friend accompany you on important visits to healthcare providers.

In your 20 years of practice, have you detected any shifts in the handling or perception of medical malpractice?

Proponents of malpractice reform often argue that there are too many medical malpractice claims. In reality, the number of claims is declining.

Despite this, the perception of “lawsuits gone wild” exists. As a result, many states have imposed substantial limits on damage awards in medical-malpractice claims. These award limits typically have the greatest impact on patients who are most gravely hurt—those with catastrophic injuries and a lifetime of future medical needs. And patients who are denied justice in the courts must rely on health insurance and, in many instances, such public programs as Medicare or Medicaid to pay their future medical bills—leaving the cost of medical malpractice to the public instead of the responsible party.

What are some of the most common reasons why legitimate medical malpractice claims go unexplored?

Patients choose not to pursue valid medical malpractice claims for numerous reasons. Some are concerned that other doctors will learn of their cases and refuse to treat them. Some fear—incorrectly—that it will lead to an increase in the cost of their medical care. And others forgo valid claims due to the perceived personal and financial costs associated with litigation.

Are there certain medical procedures that are consistently at the root of medical malpractice suits?

In my experience, it’s the healthcare provider’s mental state more than the type or severity of a given procedure that’s relevant to whether a mistake occurs.  Complacency often leads to errors. Likewise, “tunnel vision,” or the failure to look at the big picture, can also lead to medical mistakes.

What types of cases have been the most illuminating for you?

Although the medical school adage of “treat the patient and not the test” has value, it’s also important for healthcare providers to carefully assess test results. I’ve witnessed many instances in which highly abnormal test results were either interpreted incorrectly or disregarded by physicians—sometimes with fatal consequences.

Have your experiences as a malpractice attorney affected your perception of doctors?

If anything, I have more respect for physicians and the challenges that they face.  However, I don’t believe that doctors should be treated differently than others when they make mistakes that cause serious harm to patients.

With regard to the medical establishment, I’m a bit more jaded. Hospital systems and health insurance companies impact the quality of medical care that patients receive. In my opinion, that impact is not always for the best.

Any final parting words of advice?

Don’t be afraid to get a second opinion! And don’t be afraid to find a new doctor if you don’t feel that you’re receiving proper medical care. Your health is too important to place in the hands of a provider who hasn’t earned your confidence.

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