Day on Torts
It takes a tremendous amount of time and money to screen medical malpractice cases. Our office reviews over 700 cases per year and rejects over 95 percent of them over the phone. Of the remaining 5 percent most are rejected after review of the medical records and, if appropriate, consultation with one or more medical experts. In short, we spend a significant sum of money every year trying to take only claims that are valid and have sufficient damages to justify the significant investment of time and money necessary to prosecute one of these cases.
One way to save a little money and time reviewing cases and to help win a case that is actually filed is to use practice guidelines developed by the health care industry. Practice guidelines are consensus statements of good medical practice. The phrase "standards of care" immediately jumps to mind when one reads the last sentence – and that is what practice guidelines are. However, practice guidelines are not called standards of care because the people who write and use them seek plausible deniability if ever confronted with them.
No bother. You can use practice guidelines to evaluate the care your potential client or client received. You can use practice guidelines to prepare for depositions of health care providers. Your expert can point to practice guidelines as evidence of the standards of care, disclaimers notwithstanding. In short, they are potentially useful in litigation and, more importantly, very helpful in standardizing and improving the quality of care given to patients.
Where do you find them? This website – www.guidelines.gov. Simply go to that page, type in the appropriate search term or scan the index, and you will be sent into a world of over 2000 practice guidelines.
Some examples:
Management of Labor. This 73-page guideline was issued by the Institute for Clinical Systems Improvement. "The recommendations for management of labor are presented in the form of eight algorithms with a total of 128 components, accompanied by detailed annotations. Algorithms are provided for: Management of Labor Main Algorithm, Management of Signs/Symptoms of Preterm Labor (PTL), Monitoring and Management of Prodromal Preterm Labor, Management of Active Preterm Labor, Management of Preterm Labor with Rupture of Membrane (ROM) or Bleeding, Vaginal Birth after Cesarean, Treatment of Failure to Progress in Labor, and Intrapartum Fetal Heart Rate Management." There are references supporting the recommendations.
Treatment of Acute Pancreatitis. Short explanation of the diagnosis and treatment of this condition.
Pediatric and Newborn Septic Shock. This guideline gives information on hemodynamic support for these patients.
Caution: Guidelines are not a substitute for an expert. Do not assume that guidelines represent the standard of care and that if a practitioner violated a guideline the practitioner has violated the standard of care. You still need hones-to-God expert proof to win your case.
Indeed, the mere fact that guidelines are followed does not mean that the standard of care was met. Guidelines may be outdated. Or guidelines may be drafted in such a way as to provide a tool to defend cases rather than promote good care (is my cynicism showing?)
One last point. Do your research before you file suit, not after. If at all possible, consult experts before filing suit, not after. Each of these cases is like nuclear war, and your opponent has a lot of warheads in his or her control. Be prepared for a time-consuming, expensive fight against very good lawyers.