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Statistically speaking, you or a loved one are likely to suffer a medical error given the complexities of healthcare. These lapses in care, often occurring in settings of sacred trust between providers and patients, result in confusion and uncertainties. No one wants to be the victim of a medical error and despite misperceptions about people who chose to bring litigation in this realm, our clients are not seeking “jackpot justice.” They want answers and accountability in the only forum available to them, the civil justice system. There are necessary steps that must be taken for victims of medical negligence or their families to navigate the aftermath effectively.
The Importance of Documentation
The first step in responding to a medical error is gathering documentation. This includes medical records, test results, and direct communication logs that detail the care received. Collecting this information is essential for building a solid foundation for any future actions you may need to take.
Action Steps:
- Access your patient portal to download all available records, including messages and communications with healthcare providers.
- Request physical copies of any documents not available online.
- Act quickly, as hospitals restrict access to online patient portals to records following a patient’s death.
- Retain text messages or information regarding communications with nurses and doctors that may be at issue in your case. The electronic records kept in hospitals often lack the conversations with families and in some cases omit critical details. Client records and even recordings of conversations can be very helpful in understanding what happened.
Understanding Autopsies
In cases where a patient has died in the healthcare setting, pursuing an autopsy may be necessary to determine the cause of death. This process can provide critical insights, especially when negligence is suspected. However, autopsies are not automatically performed; the decision lies with the Chief Medical Examiner. The Office of the Chief Medical Examiner (ME) has jurisdictional limitations on when they can perform autopsies. One consideration is whether the deceased has been in the care of a physician in the 24 hours preceding death. If so, the ME will often “waive jurisdiction” and not perform an autopsy, but the family is not usually told this until it is too late to have a private autopsy performed.
Key Considerations:
- If families suspect medical negligence, communicate directly with the Office of the Chief Medical Examiner to verify if they are actually performing an autopsy. If they decline, understand that you have the right to have a private autopsy. Funeral homes usually have information regarding private autopsies, if not call an attorney to guide you through the process.
- Be aware that the cost of a private autopsy will typically fall on the family.
- Toxicology results often take months, not days, but are important to determine cause of death given that medication errors are a frequent cause of negligence.
Filing a Grievance
Filing a formal grievance within the healthcare institution where the error occurred is an important step in documenting concerns.
Steps to Follow:
- Contact the nurse supervisor to understand the grievance process specific to the hospital.
- Keep detailed records of all interactions with hospital staff.
- Defer any in-person meetings with hospital representatives until you have consulted an attorney to protect your legal rights.
- Be aware that conversations you have with hospital administrators even those who claim to be “patient advocates” may be recorded. It is always best to ask questions and get more information than you give.
- Remember, the hospital has all the information, and you have very little information. They likely know more about the errors that occurred than they will tell you.
Seeking Legal Representation
Navigating medical malpractice law requires specialized knowledge and experience. It’s imperative to consult an attorney who understands both legal and medical standards.
Time-Sensitive Considerations:
- Statute of limitations varies by jurisdiction (e.g., two years from the date of injury or death in Oklahoma).
- Many law firms hesitate to take cases approaching the deadline due to the extensive preparation required in medical negligence claims.
- Early action preserves your legal options and allows for thorough case development.
Common Misperceptions:
If the hospital or doctor was negligent, they will settle. This is rarely true. Medical negligence cases are litigated because they are professional liability cases and doctors get reported to the National Practitioners Data Bank and other places if they settle a case. A case may settle close to trial, but rarely settles early in the litigation process.
Patients won’t owe the medical bills if the expenses were incurred because of medical negligence. The hospital and doctors still submit bills to the health insurer or to the patient and it is not unusual for them to even send patients to collection for nonpayment of the bill. If your health insurer pays the bills and you obtain a settlement, the health insurer must be paid back for those expenses directly attributed to the negligence. This is called subrogation, and most people are surprised that they must repay health insurance in this circumstance.
Every medical error is a meritorious negligence case. This is not true. Negligence consists of legal elements that must be present to meet the necessary burden of proof. Underlying, serious medical problems (for example) can cause injury unrelated to the negligence leading lawyers to decline pursuit of a medical negligence case.
Nothing will change in healthcare by filing litigation. This is also false. Most patient harm is not because of one error but many flaws in the hospital system. While we cannot turn back the clock and undo the harm, we can educate and cause policy changes to prevent future harm. Effectuating change is probably the number one motivator for people to power through the stressful litigation process.
Conclusion
The aftermath of a medical error can feel overwhelming, but you do not have to navigate it alone. By taking proactive measures, you not only seek justice for yourself or your loved one but also contribute to improving healthcare standards for future patients.
For a free consultation, call us at (918) 265-1214 or reach out via our secure online contact form and we will explain your rights so you can decide your next steps.