Any investigation of a medical malpractice case begins with the new client interview. The fact that there was a bad outcome in a medical situation does not necessarily mean there was malpractice. However, what it does mean, and what I always tell my clients, is that if you have a bad outcome as a result of medical treatment, an investigation of the records and the circumstances is appropriate. Bad outcome means a wrongful death, a disability, brain damage, extensive pain and suffering, incurring economic losses like additional medical bills for follow up surgeries, repair surgeries or therapies.
Once the initial client interview is conducted the next step is the review of the medical records, including all records relating to the surgery, the hospitalization, the labor, and delivery in question. This investigation or medical malpractice review usually takes place primarily in the attorney’s office. Once the initial attorney investigation is completed, a follow up review by a physician is appropriate. Preliminary review by a physician is to determine whether or not the care provided was negligent or below the standard of care. In addition, that review must determine that the damages were caused by the negligence or wrongful conduct. Finally, that initial review must determine the extent of the damages.
Assuming this preliminary review by a physician is positive — meaning there was negligence or conduct below the standard of care that caused or contributed to the cause of the damages — then a second opinion must be obtained. The second opinion is typically obtained from a board certified physician in the same specialty as the defendant. This physician will give either a written report, a Report of Reviewing Health Professional, or testify on behalf of the plaintiff. This second opinion is focused on liability and causation. That means:
- What is the standard of care?
- What should have been done under the circumstances?
- Was there a deviation from standard of care or negligence?
- What was done in this case that resulted in the injury?
It is important to obtain a second opinion from a doctor within the same area of specialization. Moreover, this doctor must be willing to sign a report and testify on behalf of the plaintiff. This doctor must have knowledge and be familiar with the medical surgeries, procedures, and techniques involved in the case. He or she must testify that there was conduct below the standard of care or negligence. Sometimes the term “deviation from standard of care” is used in these circumstances. That simply means medical negligence or conduct below the standard of care. In addition to expert testimony on liability or negligence or standard of care, this physician must also testify that the medical negligence caused or contributed to cause the injury complained of. By that I mean if the patient had cancer, a preexisting cancer condition, underwent surgery which was negligent or below the standard of care, and then died from cancer which was unrelated to the negligence, the patient or plaintiff will not be able to meet his/her burden of proof. The patient must prove that the negligence caused or contributed to cause the condition of ill-being or death. If the patient died from some unrelated condition, then the plaintiff will not be able to meet his/her burden of proof.
Upon completion of this second opinion in written report of a reviewing health professional the investigation phase of this case is essentially completed.