Medical Malpractice FAQ

WEBVTT 00:00:06.214 --> 00:00:10.028 Persons that have a potential medical malpractice claim 00:00:10.029 --> 00:00:13.071 don't understand or need to be informed about a few topics. 00:00:13.072 --> 00:00:15.571 First one is the amount of time it takes. 00:00:15.700 --> 00:00:19.543 I think unlike other areas of injury law, 00:00:19.544 --> 00:00:23.143 medical malpractice is significantly more time-consuming 00:00:23.700 --> 00:00:25.257 because it's more complex. 00:00:26.429 --> 00:00:29.262 Both the investigation before you bring a lawsuit, 00:00:29.371 --> 00:00:32.443 the pre-litigation process that you have to do before, 00:00:32.444 --> 00:00:35.971 and the litigation itself just really delay things. 00:00:36.280 --> 00:00:40.000 Then you combine that with the schedules of the doctors you need to talk to, 00:00:40.186 --> 00:00:44.014 both at fault and not at fault, defense attorneys' calendars, 00:00:44.186 --> 00:00:45.600 the court's calendars. 00:00:45.771 --> 00:00:46.840 It's a long process. 00:00:46.841 --> 00:00:52.957 The first thing we do is educate clients that we're in it for a long ride. 00:00:53.080 --> 00:00:57.043 Unlike the auto insurance world, where if you're in an accident, 00:00:57.044 --> 00:00:58.842 and you think it's the other person's fault, 00:00:58.843 --> 00:01:01.080 if your insurance decides it's your fault, and they should settle the claim, 00:01:01.081 --> 00:01:02.700 they're going to do it without your permission. 00:01:03.440 --> 00:01:08.129 In medical malpractice, a physician can say, "No, don't settle," 00:01:08.130 --> 00:01:08.986 and his insurance company 00:01:08.987 --> 00:01:10.757 can't settle unless the physician wants to. 00:01:11.286 --> 00:01:12.471 That sometimes is the delay. 00:01:13.120 --> 00:01:15.557 What I see more often, and it's more troubling, 00:01:15.558 --> 00:01:18.229 is that I see physicians that would like to settle the case, 00:01:18.443 --> 00:01:22.757 but the insurance company is refusing or not being reasonable in the amount, 00:01:23.071 --> 00:01:25.871 and they want to drag it out, and they want to fight it. 00:01:26.071 --> 00:01:27.429 But an average case time, 00:01:27.430 --> 00:01:30.514 not just for our office, for anybody, is three years or more. 00:01:32.229 --> 00:01:34.814 It's hard for clients to understand that. 00:01:35.371 --> 00:01:38.129 If we could change it and make it faster, we absolutely would. 00:01:38.130 --> 00:01:39.814 We do everything we can to move it faster. 00:01:39.815 --> 00:01:44.114 But the first thing clients need to understand is this is a long process. 00:01:44.357 --> 00:01:49.357 Another frequent question we get is about the pre-litigation requirements. 00:01:49.358 --> 00:01:51.500 This is what makes our field specialized. 00:01:51.986 --> 00:01:53.970 In any other injury case, you don't have to do this. 00:01:53.971 --> 00:01:56.914 But if your injury involves any type of healthcare provider, 00:01:57.429 --> 00:02:01.429 from a sports medicine doctor, a chiropractor, 00:02:01.629 --> 00:02:06.543 even a holistic medicine person that doesn't have a real license, 00:02:06.557 --> 00:02:14.229 if they provide any, arguably, healthcare, laser, Botox, anything, 00:02:14.657 --> 00:02:16.443 you have to go through a pre-litigation process. 00:02:16.444 --> 00:02:19.129 You have to tell them, "I'm thinking about suing you." 00:02:19.130 --> 00:02:20.229 Give them a notice. 00:02:20.671 --> 00:02:25.586 A panel is appointed that involves local providers and laypeople 00:02:25.587 --> 00:02:26.557 that sit on the panel, 00:02:26.558 --> 00:02:29.158 and you have to go before them and tell your case, 00:02:29.159 --> 00:02:31.514 and the defense shows up and tells their case, 00:02:31.515 --> 00:02:35.171 and then they make a decision whether the case has merit or not. 00:02:35.172 --> 00:02:39.029 You have to get that decision and jump through that hoop. 00:02:39.657 --> 00:02:41.571 It takes usually six months to do that. 00:02:42.229 --> 00:02:43.471 From the time we get a case, 00:02:43.472 --> 00:02:45.771 we need a couple of months to gather the records, 00:02:45.772 --> 00:02:49.070 which there's laws about how quick we are allowed to demand records. 00:02:49.071 --> 00:02:50.657 They have time to produce those. 00:02:51.143 --> 00:02:53.370 Then file the notice of intent, 00:02:53.371 --> 00:02:55.814 have the pre-litigation, and hearing that takes six months. 00:02:56.157 --> 00:02:57.214 Sometimes it's a year 00:02:57.215 --> 00:03:00.328 before you can even fully investigate the case 00:03:00.329 --> 00:03:02.999 and get answers about whether you should file a lawsuit 00:03:03.000 --> 00:03:04.143 and whether you have a case. 00:03:04.414 --> 00:03:07.471 Then once you do, you start the case, and then it's years after that 00:03:07.472 --> 00:03:11.457 before a potential settlement or trial comes into play. 00:03:11.900 --> 00:03:15.714 The next thing we get questions about are costs. 00:03:16.443 --> 00:03:20.013 Medical malpractice, I think one of the reasons 00:03:20.014 --> 00:03:22.170 a lot of our cases come from other lawyers, 00:03:22.171 --> 00:03:25.114 is it's one of the most expensive forms of litigation. 00:03:25.471 --> 00:03:30.700 In any given case, we need to talk to probably 20 different doctors. 00:03:30.986 --> 00:03:33.480 Some of them are ones we hire to be experts in the case. 00:03:33.481 --> 00:03:35.928 Some of them are our clients treating providers 00:03:35.929 --> 00:03:38.456 who have information that's important to the case, 00:03:38.457 --> 00:03:42.143 but they're not there to opine on whether somebody made a mistake or not. 00:03:42.500 --> 00:03:45.914 But they still get paid to show up to their depositions. 00:03:45.915 --> 00:03:47.414 They're not going to come for free. 00:03:47.600 --> 00:03:50.440 We have to pay the court reporter who's there in the deposition. 00:03:50.441 --> 00:03:53.843 We have to pay the treating providers who are coming to give information. 00:03:53.986 --> 00:03:54.886 We have to pay the experts 00:03:54.887 --> 00:03:57.214 who are reviewing the case to give us opinions. 00:03:57.686 --> 00:04:02.742 We can have cases that are up to $100,000 before you even go to trial. 00:04:02.743 --> 00:04:04.781 We spent $100,000 in the case. 00:04:04.943 --> 00:04:09.442 Then through trial, we've had them as high as $250,000 00:04:09.443 --> 00:04:11.557 that we've written checks for. 00:04:11.714 --> 00:04:13.686 That's not our time. That's not our staff's time. 00:04:13.687 --> 00:04:15.914 That's hard costs in the case. 00:04:15.915 --> 00:04:18.286 We front all of those for our clients. 00:04:18.871 --> 00:04:20.086 That's a risk we take. 00:04:20.087 --> 00:04:22.760 If we lose, that money is gone along with our time. 00:04:24.057 --> 00:04:27.499 Costs are a big hurdle. 00:04:27.500 --> 00:04:29.670 Because medical malpractice is so expensive, 00:04:29.671 --> 00:04:32.713 you have to be creative in trying to get them done efficiently 00:04:32.714 --> 00:04:36.013 so that maybe the case value is $100,000. 00:04:36.014 --> 00:04:42.156 If it costs $60 to get to trial, and then you win $100, in the end, 00:04:42.157 --> 00:04:43.173 the client is going to be unhappy 00:04:43.174 --> 00:04:46.000 because most of the money goes to the experts, 00:04:46.001 --> 00:04:50.514 and the court reporters, and the filing fees, 00:04:50.829 --> 00:04:53.843 and there's very little left for the client or the attorney. 00:04:55.114 --> 00:04:57.428 We've gotten good at identifying cases 00:04:57.429 --> 00:05:01.386 that even though they're not high value or major injuries, 00:05:01.786 --> 00:05:03.314 you can still make them work. 00:05:03.843 --> 00:05:06.628 Sometimes it's just a principle thing. 00:05:06.629 --> 00:05:09.586 I've taken cases where we lose money, and I know we're going to lose money. 00:05:09.757 --> 00:05:12.014 But I'm so frustrated that this happened to somebody, 00:05:12.015 --> 00:05:16.014 and they shouldn't get away with it just because they only hurt them a little. 00:05:16.015 --> 00:05:17.271 They didn't hurt them a lot. 00:05:17.529 --> 00:05:19.370 In Utah, medical malpractice cases 00:05:19.371 --> 00:05:21.371 have to be brought within a certain time period. 00:05:22.543 --> 00:05:26.228 That makes it difficult because the time period is different 00:05:26.229 --> 00:05:28.300 depending on who made the medical error. 00:05:28.771 --> 00:05:33.599 If a person is employed by the University of Utah, 00:05:33.600 --> 00:05:36.885 which might work at the VA, they might work at IMC, 00:05:36.886 --> 00:05:38.457 it's hard to know where they're working. 00:05:38.458 --> 00:05:40.642 But if they're employed by the University of Utah 00:05:40.643 --> 00:05:43.186 and working within that realm, 00:05:43.187 --> 00:05:45.900 meaning the University of Utah has a contract to send them there, 00:05:46.371 --> 00:05:51.357 then the statute to notify them of a claim is one year. 00:05:52.243 --> 00:05:55.143 If they don't work with the University of Utah, 00:05:55.144 --> 00:05:56.371 you have two years. 00:05:57.914 --> 00:05:59.356 Sometimes in medicine, 00:05:59.357 --> 00:06:01.514 you don't know that there's been an error for time. 00:06:01.515 --> 00:06:05.229 You might get a scan, and they tell you it's normal. 00:06:05.600 --> 00:06:07.800 Four years later, you find out it was cancer. 00:06:07.801 --> 00:06:10.700 There was cancer on that scan, and no one told you. 00:06:11.500 --> 00:06:12.886 The two years is up. 00:06:13.200 --> 00:06:16.457 In Utah, you can extend that two years, a few years, 00:06:16.714 --> 00:06:18.100 but no more than four. 00:06:18.871 --> 00:06:21.630 If the negligent happened four years ago or more, 00:06:21.631 --> 00:06:24.429 with very, very few exceptions, you have no case. 00:06:24.871 --> 00:06:26.200 The laws aren't fair, 00:06:26.201 --> 00:06:29.771 but that's another thing people have trouble understanding 00:06:29.772 --> 00:06:32.642 is when we can take a case and not take a case 00:06:32.643 --> 00:06:33.629 based on when they come in. 00:06:33.630 --> 00:06:36.014 That's why it's important to contact a lawyer early 00:06:37.060 --> 00:06:39.286 and make sure that you don't miss your chance 00:06:39.287 --> 00:06:41.742 to at least investigate the case and get answers. 00:06:41.743 --> 00:06:44.871 I get a lot of sad cases that seem like they're clearly a case, 00:06:45.157 --> 00:06:46.400 but they waited so long 00:06:46.401 --> 00:06:50.657 because they've been grieving or didn't understand what happened, 00:06:50.658 --> 00:06:53.720 and it's been over four years, or it's been past two, 00:06:53.721 --> 00:06:57.314 and it's going to be tricky to prove that they can bring a case. 00:07:00.500 --> 00:07:04.029 Some health insurances have the right to recover from your settlement. 00:07:05.629 --> 00:07:08.228 It's hard for clients to accept that they have to pay a lawyer, 00:07:08.229 --> 00:07:09.914 they have to pay their health insurance back. 00:07:10.186 --> 00:07:11.586 Then what's left, 00:07:11.729 --> 00:07:13.771 the original settlement doesn't make them whole. 00:07:13.772 --> 00:07:16.057 They're still injured, and they still wouldn't trade 00:07:16.058 --> 00:07:17.943 what they lost for this money. 00:07:19.429 --> 00:07:20.256 After attorneys' fees, 00:07:20.257 --> 00:07:22.828 and then you have to pay your health insurance back. 00:07:22.829 --> 00:07:26.914 We negotiate with those health insurances and try and get something fair 00:07:26.915 --> 00:07:29.014 and make them pay their share of attorneys' fees, 00:07:29.015 --> 00:07:30.671 so they don't just get all their money back 00:07:31.000 --> 00:07:33.357 without having to pay the lawyer, and the client has to pay the lawyer. 00:07:33.358 --> 00:07:39.271 But liens and health insurance payback is a big surprise to a lot of clients.