My Doctor Committed Malpractice…But They’re Really Nice. Do I Have to Sue Them?

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The law is not hard and cold; it’s by people, and meant for people, and people are squishy and warm. The kinds of lawsuits regular people will become personally involved with almost always deal with a personal relationship on some level. Divorce. Landlord/tenant. Bill collection. Those kinds of things flare emotions in a way that few other lawsuits can, except for personal injury and medical malpractice.

So, you may be asking yourself: how can I sue the doctor who worked so hard to take care of me?

You can.

Lawsuits are not weapons, and lawyers are not hit men.

It just wouldn’t be entertaining to watch a television show or film about lawyers doing what they actually do. Most audiences would be crestfallen to watch the hero or villain lawyers speaking to each other civilly and calmly, sending paperwork back and forth, and filing motions in court and argue them vigorously but with none of the fire and brimstone people expect to see.  Most people would be disappointed to discover that the practice of law is more about presenting facts and resolving issues than using purple prose to do intellectual acrobatics to create gotcha-moments to ensnare the other party.

It’s a myth that you can sue anyone for anything in America, but you see this myth rehashed over again because it makes good news. Sure, the gods will not physically stop you from entering the courthouse and filing a frivolous lawsuit, but that doesn’t mean it will gain any traction. However, most people reading Facebook don’t have the time or discipline to read beyond the headline for an article written by a person who is not a legal expert to find out why the guy who tripped in the grocery store was awarded so much money, or the difference between the types of damages. Collective moral outrage can only exist in one dimension because nuance and details kills it.

In reality, lawsuits are not weapons, and lawyers are not hitmen. They’re advocates and legal counsel. They’re not out to punish or harm the other party, but to seek compensation for loss. Some of those lawsuits go into the hundreds of thousands or even millions of dollars because of the total financial impact of the loss.  Yes, lawyers are paid by the hour, or in the case of most plaintiff’s lawyers, on contingency. Considering the cost of litigation, the risk, the time, the expertise, and ALL the people who work on the case (hint: it’s not just the lawyer), it’s a fair cost for them to do their jobs.

Because that’s what it is in the end: it’s the lawyer’s job to represent the client in court, to follow the law and the rules of ethics. Your lawyer is not out to kill your doctor with a verdict or carpet -bomb the hospital with lawsuits and judgments. But….

…You may have to sue your doctor whether you like it or not.

A lesser-known fact that never seems to make it to the numerous consumer articles about medical malpractice verdicts is the issue of subrogation. Insurance talk isn’t as fun as moral outrage, is it? However, for many individuals who suffer an injury from malpractice, they may be able to recover some or all their expenses for the treatment of their injuries from their own medical insurance. However, most, if not all, medical insurance policies require subrogation, such that in order to receive compensation from the insurance, the policy holder must sue those who committed medical malpractice.

Subrogation is the term for representing someone’s right to recover something from another party. In this case, the medical insurance company pays the insured for the loss another party causes them, but in turn, the insured must represent the medical insurance company’s interests in a lawsuit against the party who cost them all that money.

This isn’t unique to medical malpractice, either. In 2015, a Connecticut woman’s lawsuit against her young nephew for causing a broken wrist caused quite an uproar. However, it was all a matter of subrogation. It’s not likely that anyone will actually win a lawsuit against a minor, even though they’re possible in every state court, but nevertheless, this woman would not have been covered by her health insurance if she did not file a lawsuit.

Sure, yes: the child’s parents had to pay for his defense. I don’t know if this was out-of-pocket or if their homeowner’s insurance paid for it. However, in the case of medical malpractice, no one need worry about whether their doctor can afford the lawsuit.

They can. They’re prepared. Everyone involved in your medically-related injury is prepared.

But my doctor has helped me so much, even though he made a mistake that cost me dearly.

Your doctor should help you very much. It’s your doctor’s job and professional duty to do their best by their patents. However, this doesn’t give them a free pass to commit malpractice, especially if in doing so, it undoes some or all of the good work the doctor previously did. Even if you believe there is a social contract to let your doctor off the hook for the injury their actions or inactions caused you, this is not the legal standard, and in the end, you may be paying a hefty price for idealizing your physician. Here’s an example of one such story:

A man in 50’s develops a rare cancer of the blood vessels on his upper back back. He goes through a series of surgeries and radiation. At this time, the cancer is all in his soft tissue: skin, blood vessels, muscle, etc. He goes through a series of examinations regularly to ensure his cancer doesn’t come back, and if it does, they can catch it before it spreads.

However, after one such examination, the test shows that he’s positive for cancer in the same region…but no one tells him. Thinking no news is good news, he doesn’t ask about the test. He doesn’t find out that his cancer is back for THREE MONTHS, during which time, the cancer spread to bones in his shoulder, which then had to be removed, rendering him unable to lift his left arm, causing him to be partially disabled and disfigured. He was able to work in a limited capacity, but was then forced into an early retirement, even though he had a mortgage and dependents.

So what did he do? He didn’t sue. He let the statute of limitations run because he didn’t want to upset the doctor who, up until probably committing negligence, was kind and helpful to him.

This man literally traded his livelihood, his financial security, his mobility, his bodily integrity, and his freedom for his doctor’s feelings.

How many people would you truly sacrifice that much for to spare their feelings? For most of us, it has to be someone we love dearly, like a child, but even then, faced with so much sacrifice, we’d probably not.

So, then why make this sacrifice for your doctor, someone you pay to take care of you?

The doctor narrative is hard to overcome. I understand this, but:

Doctors ARE Heroes. They’re also people.

There are more instances of medical malpractice than there are medical malpractice lawsuits. It’s more likely than not that your doctor does not want to commit malpractice. It’s also, however, more likely than not that your doctor will commit malpractice at some point in his or her career, and in some cases, it may be so severe that they’re subject to a lawsuit. However, the fact that we hold doctors in high esteem doesn’t change the fact that sometimes, they make mistakes or omissions that can severely hurt other people.

Your doctor understands. This is why she has malpractice insurance.

All professionals are subject to malpractice lawsuits (including lawyers), and thus, all professionals have (or should have) malpractice insurance, sometimes called “professional liability” insurance. Lawyers, architects, accountants, brokers, and engineers have malpractice insurance, too. Depending on the state where your doctor practices, she either has medical malpractice insurance or an escrow account to cover any lawsuits. No coverage, no practice. It’s the malpractice insurance that will pay out for malpractice first, or in entirety if possible. Your doctor pays money for this insurance.

And your doctor isn’t going to take it as a personally affront that you’re suing them for an action they know occurred. It’s extremely unlikely that your doctor is absolutely in the dark about why you’re suing them. Chances are, your already doctor knows she made a mistake or was negligent, and that you were hurt.

What About Your Doctor’s Professional Reputation?

You’d be surprised how many doctors have been involved in malpractice suits, paid out, and even lost, and are still practicing. Being sued for medical malpractice doesn’t necessarily mean losing one’s license to practice, either. That’s another issue; a licensed professional’s ability to practice can only be taken away or augmented by the licensing body.

A physician I know who recently completed his law degree told me “at least half of all licensed doctors right now have no business working in medicine.” Doctors are actually very protective of the integrity of their profession. This is why plaintiff’s attorneys are at no loss to find doctors willing to assist them in medical malpractice cases. The doctors who do so believe they have a duty to protect the profession and patients from harm.

But don’t think that your doctor, medical center, or hospital is going to be blindsided by a malpractice investigation. This is why they have their own in-house lawyers, to assess the likelihood of litigation for any case in which there is a mistake and/or negligence and determine how much it may cost them.

I want to discuss this with a lawyer before filing a lawsuit. Can I do that?

Absolutely. As a medical malpractice attorney, I understand how you’re feeling now. You may be fully aware that your doctor committed malpractice, or you may not know for sure. I also understand that you don‘t want to fight with your doctor, or to get involved in the arduous work of a lawsuit. You won’t. The hard work is my job. It’s also my job to gather the facts and determine if you should file suit. If you want to talk to an experienced medical malpractice attorney, call me at 312-884-9163 or email me to discuss your case.

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