Advice for the General Practitioner

By: James H. Webb, Jr.

Medical Malpractice Practice Area

I. General Comments

In law school we spent an extensive amount of time learning how to identify legal issues and "to think like lawyers". As we began practicing law and refining our areas of legal interest, our experiences increased our ability to identify those issues. Hopefully, our ability to recognize collateral issues and the consequences of those issues continues to expand. A client is principally interested in obtaining a desired result. Sometimes that hoped-for result will be obtained only if the lawyer is successful in identifying and considering legal, moral, and ethical considerations along with how public opinion will perceive and react to that result.

Every time a lawyer interviews a client, the lawyer must consider all possible claims that client may have arising out of the factual situation at hand. If the lawyer is not sufficiently trained or experienced to actually advise a client of his complete rights, and can not become so experienced in the course of the case without jeopardizing his clients' cause of action, the lawyer has the ethical obligation to inform the client that he does not have sufficient background in that area to properly advise the client of his rights and remedies so the client can seek further legal assistance.

If you have not had occasion to discuss a situation with a client which might give rise to a valid medical malpractice action, you will undoubtedly be confronted with that circumstance in the future. Even if you practice exclusively in a very narrow area of the law, inevitably friends, relatives, and acquaintances will ask you questions about injuries from medical negligence and its legal consequences.  The issue of medical negligence most commonly arises when a client is discussing a possible case with his attorney and the case in some way involves an injury. If any injury is serious enough to warrant medical treatment, the specter of possible medical negligence arises.

A joint study done by Harvard Medical School and Harvard Law School disclosed two note-worthy facts: (1) more people in this country are killed or seriously injured as a result of medical malpractice than as a result of automobile wrecks; and (2) a very high percentage of people who are seriously harmed as a result of medical negligence never know it because the patient or his loved ones are not told that the patient was a victim of medical error and thus never knows that the injury could have been prevented. In law school, we call this the "conspiracy of silence." So, unlike automobile cases and other run-of-the-mill cases, you have to be particularly alert in the identification of possible medical negligence actions.

II. Legal Standards

The definition of medical malpractice is stated in O.C.G.A.§ 51-1-27 as, "a person professing to practice surgery or the administering of medicine for compensation must bring to the exercise of his profession a reasonable degree of care and skill. Any injury resulting from a want of such care and skill shall be a tort for which a recovery may be had." This code section establishes the medical practitioner's legal duty. Like most other torts, to prevail in a medical negligence action, you must show that the duty was violated and that as a result of that violation (causation) an injury occurred. Like many aspects of the law, the general legal principles concerning malpractice are simply stated; their application is not.

Just as there are different medical malpractice statutes of limitations in different states, each state has its own rules regarding whether or not that particular state uses the general or national standard, or the local standard, in judging medical conduct. Georgia is somewhat of a hybrid in that it recognizes the national standard for healthcare providers and the local standard for hospitals.

As doctors frequently remind me, the practice of medicine is an art and not a science. It is not a mathematical formula; in many instances it is extremely difficult to reach a consensus as to what actually constitutes the applicable standard of care. In many malpractice cases, there really is no question about the factual circumstances. The real debate focuses on what standard of care should the physician have followed under those circumstances. The standard of care is usually established by expert testimony.

III. Case Recognition

Most lawyers and lay people have no difficulty in identifying errors and making some rudimentary decisions regarding whether or not somebody has a valid case arising out of an automobile wreck. We are all taught the basic rules of the road, and most everyone knows that if one of these rules is violated, an automobile wreck occurs, and someone is injured. The recognition of a medical malpractice claim is frequently more difficult because we are not all familiar with the specifics of how appropriate medicine should be practiced.

Sometimes a client will specifically ask you whether or not medical negligence has occurred. Other times, the attorney discovers the medical negligence through careful questioning. I always like to ask a client specifically, do you think any of your doctors or healthcare providers did anything whatsoever wrong during your treatment, or were you in any way disappointed with your medical care?

While it never hurts to review medical records, unless you have some real medical training, it is highly unlikely that you will recognize a medical negligence case simply by reviewing records. I have been practicing this type of law for approximately 20 years, and as I have frequently told a jury, I have never seen an operative report where a physician says, "Oops, my hand slipped," or "I made a mistake." In fact, if you read almost any medical record, it will look like the procedure in question went perfectly. One thing that makes the proof of medical negligence cases so difficult is that you are trying to prove a claim against someone who is the author of the primary piece of evidence (the medical record s) you are attempting to use to prove your claim. You will also find that fellow physicians, nurses, and other healthcare providers are quick to protect their own and likewise quick to lose their memory when a bad outcome takes place.

Sometimes you can recognize a possible medical negligence case from the general scope of the treatment, i.e. when a patient has repeated surgeries for the same problem. Another "red flag" occurs when a patient has what seems to be a relatively minor problem but the healthcare seems unusually extensive. For example, if somebody had an ingrown toenail, you would expect the removal of that toenail to be accomplished on an out-patient basis. You should get suspicious if the removal ultimately involved an overnight hospitalization.

You might also be suspicious of a possible medical negligence claim if a patient has an unexpected bad outcome from a simple medical procedure. For example, I think most people know that if one has a simple fracture of the arm and the fracture is appropriately treated most of the time there will be no significant permanent injury. If you represent such a client and following his medical treatment his arm lacks a certain amount of mobility, you might appropriately question whether or not the fracture was treated in the proper manner.

IV. After Recognizing a Possible Case

Once you recognize that the client might have a potential medical malpractice case, then you have certain responsibilities. You must immediately alert the client of the fact that the client may have a claim for medical negligence. You must then determine whether or not the statute of limitations has run regarding the case. If you do not have complete confidence in your ability to tell the client when the statute of limitations runs, you should do medical research, discuss the situation with someone who is more experienced in this area, or immediately refer the client to a lawyer who handles medical malpractice cases. Whichever course of action you select, you must be careful because deciding when a medical malpractice statute of limitations runs is "tricky business" and if you improperly advise a client or allow a client to unknowingly sit on his rights and allow the statute of limitations to pass, you might find yourself on the end of a legal malpractice claim. I know of no other area of the law where it is more difficult to determine the applicable statute of limitations.

I would like to outline some very general, basic principles that apply to medical negligence statutes of limitations. The general statute of limitations is two years and is found at O.C.G.A.§ 9-3-71(a). The trick in learning how to apply the two-year statute of limitations is determining when the two-year statute of limitations begins to run. In wrongful death cases, the wrongful death law begins to run on the date of the death and runs two years later.

In an injury situation, the rules are not nearly as clear. For example, in an alleged misdiagnosis case, the misdiagnosis itself is the injury and not the subsequent discovery of the proper diagnosis. In injury cases, I typically tell a client that the statute of limitations began to run when they first began to experience symptoms from the alleged malpractice, not when they realized that the symptoms were caused by medical malpractice.

There are many other complicating factors regarding the question of the applicable statute of limitations. For example, there is a five-year statute of repose in medical negligence cases. O.C.G.A.§ 9-3-71(b). This essentially means that the victim has five years from the date of the negligent act to file a medical negligence complaint, regardless of whether or not the victim was aware that medical negligence occurred at any time during the five-year period. If a foreign object is left in a patient, he generally has one year from the date he discovers the existence of the foreign object to file his claim. See O.C.G.A.§ 9-3-71(a).

There are many other statutes of limitations issues which are peculiar in medical malpractice cases. For example, in a death caused by medical negligence, I have already mentioned that there is a two-year statute of limitations which applies to the wrongful death claim. If the malpractice occurred and there was some lapse of time between the malpractice and the death, there would also be an estate claim for funeral and medical expenses and pain and suffering from the date of the malpractice until the death. The general two-year statute of limitations which runs from the date the patient first had symptoms from the alleged malpractice would apply to this claim, not the two-year wrongful death statute.

There is also different statutes of limitation for minor and incompetent victims. A minor who has not reached the age of five at the time the cause of action accrues has two years from his fifth birthday to file the action. See O.C.G.A.§ 9-3-73. Victims who are mentally incompetent may be able to extend the statute of limitations. See O.C.G.A.§§ 9-3-73(a) and 9-3-90. Most loss of consortium claims arising out of personal injuries have a four-year statute of limitations. In medical malpractice cases the consortium claim must be filed within two years. Statutes may be extended by fraud and misrepresentation under certain circumstances. There are even ways to extend the statute of limitations if its running is imminent.

I repeat and warn that determining when a statute of limitations begins to run, or has run, in a medical negligence context is often extremely difficult. Sometimes you can make the determination with very little information. Other times, you must extensively interview the client or friends regarding exactly what happened and when it happened to make the determination. Often people will not be precise or entirely sure of certain dates. In those situations, a review of the medical records may be very helpful.

Once you have determined that your client may have a medical negligence case and you have determined that the statute of limitations has not run and is not running in the near future, you must make a critical decision for your client.

V. Handle or Refer

You must decide if you feel confident to handle the case or whether or not you should refer it to someone more experienced. In making this decision, please remember that there are only a few primary medical malpractice insurers in the State of Georgia. In evaluating their cases, one of the factors these insurers consider very strongly is the experience of the lawyer representing the injured party, and the previous results obtained by that lawyer.

You must consider your own background, training, and experience. Do not handle a medical negligence case under the assumption that it will be handled by the insurer like an automobile case and most likely settle. From the first moment you recognize a possible medical negligence case every action taken by you and your client will have a direct bearing on your probability of winning. Strategic decisions have to be made early. For example, do you want to order the medical records or have your client pick up the medical records? Do you want to send your client back to the treating doctor or a subsequent physician and have your client ask the doctor specific questions which may incriminate the doctor in your malpractice case? Issues such as these are extremely important and there is only a small window of time when certain strategic opportunities are available to you. You must take advantage of those opportunities. As in many areas of the law, there are many "quirks" to handling medical malpractice cases that are unlike any other form of litigation. If you are going to properly represent your client, you must be sufficiently experienced, and just because you might feel competent to handle a personal injury case through trial does not mean you're competent to handle a medical negligence case through trial.

From the very beginning, you must assume every medical negligence case will be tried. Unlike most insurance policies, doctors have a policy provision which requires them to give their permission before a case can be settled. Many doctors are reluctant to give permission because the settlement goes on their "permanent record" and also because they are emotionally invested in the case and do not want to concede any wrongdoing.

Even if you feel you are sufficiently experienced and properly trained to handle a medical negligence case, you must also have the finances to fight the good fight? Most parties injured by medical negligence have depleted their assets and cannot financially support the litigation. You must be prepared to spend considerable sums of money. You must also have the right connections to obtain expert witnesses who are honest and convincing. Frequently these witnesses will be from out-of-state because of the reluctance of local doctors to testify against their colleagues.

You should ask yourself, if you refer it to another lawyer, what role, if any, you want to take in the case. If you want to try to develop a practice in this area I suggest you stay as fully involved as possible. Your role in the case will depend on your skills, your clients wishes, and the experience and strategy of the new attorney.

VI. Collateral Issues

If you elect to keep the case, you must be prepared to recognize and handle or refer out the auxiliary issues which might arise during the prosecution of the case. For example, it will be necessary to establish an estate for your client in a wrongful death case. Similarly, if you get a positive result, you must know how to file the appropriate motions to have a settlement for a minor approved by the appropriate courts.

You must be thoroughly familiar with subrogation claims. They frequently arise in the context of medical negligence cases, because there is almost always some medical treatment involved. A great deal of time can be consumed in researching and handling subrogation issues if you do not handle those issues on a frequent basis.

Many other types of causes of actions arise in a medical negligence context so you must be thoroughly familiar with the law regarding fiduciary duty, agency, apparent agency, negligent retention, negligent hiring, negligent credentialing, and the like.
Certainly your trial skills must be superior because these cases are defended by the very best insurance defense attorneys.

VII. Conclusion

Recognizing a possibly valid medical negligence claim is a learned art, and it can be rewarding for both your client and you. Don't try to learn how to handle these cases on your own. If you have insufficient experience, refer your client to someone who knows how to handle these cases. If you want to learn how to handle these cases, stay involved in the case, ask questions and use the case as a learning experience. The "traps" in recognizing and handling malpractice cases can be avoided, but they are difficult to avoid without adequate experience.

The information for this article was received from independent research on the part of the author. All information is based solely upon the law of the State of Georgia and does not apply to any matter outside of Georgia. This article is not intended to create, and receipt of it does not constitute, an attorney-client relationship. The law is constantly changing, additional facts or future developments may affect subjects contained herein and no guarantee is given that the information provided is correct, complete, or up-to-date. Seek the advice of professional counsel before acting or relying upon any article, form or information in this web site.