In recent years, the state of healthcare in the U.S. has been one of the most oft-cited subjects in the national discourse. And as the nation’s Boomer population continues to age, healthcare — its cost, its accessibility, its importance — will become an increasingly significant concern for American adults of every generation.
Among the less-considered pieces of the healthcare puzzle, however, is the capacity of well-intentioned physicians to occasionally make diagnostic and prescriptive errors — errors resulting in considerable injury to their patients; errors constituting medical malpractice.
In an effort to better understand the complexities of identifying, and the challenges of litigating, medical malpractice, creative.reconstruction sat down with Jason Konvicka, a partner in the Virginia-based law firm of Allen, Allen, Allen & Allen. Named as one of the state’s “Super Lawyers” and included in the Best Lawyers in America, Konvicka — a seasoned trial attorney with roughly 20 years of experience in personal injury law — has won some of the largest personal-injury awards on record in the state, and recently secured the largest malpractice award in Virginia state court history.
Below, Konvicka shares his insights on troubling trends in the medical establishment and offers advice on the ways in which individuals can help lessen the risk that they’ll ever encounter medical malpractice — whether in their own healthcare, or in the healthcare of their families and friends.
CREATIVE.RECONSTRUCTION: As a practical matter, what is the legal definition of “medical malpractice”?
JASON KONVICKA: Medical malpractice occurs when a healthcare provider deviates from the recognized “standard of care” in the treatment of a patient. The “standard of care” is defined as what a reasonably prudent healthcare provider would or would not have done under the same or similar circumstances. In essence, it boils down to whether a healthcare provider was negligent.
How might a patient determine whether s/he has experienced medical malpractice?
A malpractice claim exists if a healthcare provider has been negligent and that negligence causes injury or damages to a patient. However, experiencing a bad outcome is not always proof of medical negligence. Also, on occasion, healthcare providers will inform a patient that s/he has received negligent medical care. It’s vital to note that the prosecution of medical malpractice cases — in addition to having a high likelihood of failure — can be extremely expensive, stressful and time-consuming. Consequently, most experienced medical malpractice attorneys will not pursue a case unless the injuries and damages documented in the records — after having been reviewed by an expert — are substantial and justify it.
What are some advisable first steps in exploring redress if a patient suspects that s/he has experienced medical malpractice? Is there a statute of limitations that applies?
If a patient suspects that s/he has been harmed as a result of medical malpractice, contacting a seasoned malpractice attorney should be the first step. A thorough review of the case details — interviews of the patient, family member, friends; securing the pertinent medical records — should be conducted by the attorney to determine whether the case is actionable.
Statutes of limitation — deadlines by which a lawsuit must be filed or be permanently barred — differ from state to state, as do the procedural requirements that must be met before a medical-malpractice lawsuit is filed. It is always best to seek guidance on such matters from an attorney licensed in the state where the alleged malpractice occurred.
What, if anything, can patients do to lessen the likelihood that they’ll experience medical malpractice?
Being proactive about one’s medical care is undoubtedly the best step. Patients should attempt research and understand their health condition, document their symptoms, ask their healthcare providers a written list of questions they feel are important, and expect — indeed, demand — full and complete answers.
Not allowing oneself to be intimidated by the medical system is also critical. Speak up and advocate for your own wellbeing. If patients sense that something is wrong, they should tell — or ask — their healthcare providers. Although it is important to trust one’s doctor or nurse, it is also important to listen to one’s body and use common sense. Having a family member or friend present during important visits to healthcare providers is also advisable.
In your years of practice, have you detected any shifts in the handling or perception of medical malpractice by the courts, the medical establishment or the general public?
Proponents of “tort” or “malpractice” reform often argue that there are too many medical-malpractice claims. In reality, the number of such claims is declining. Also, most medical-malpractice claims never result in an award. Despite this, the perception of “lawsuits gone wild” exists. As a result, many states have imposed substantial limits on damage awards in medical-malpractice claims. These award limits typically have the greatest impact on patients who are most gravely hurt — those with catastrophic injuries and a lifetime of future medical needs. And patients who are denied justice in the courts must rely on health insurance and, in many instances, public programs such as Medicare or Medicaid to pay their future medical bills — leaving the cost of medical malpractice to be borne by the public instead of the responsible party.
What are some of the most common reasons that legitimate medical-malpractice claims go unexplored?
Patients choose not to pursue valid medical-malpractice claims for numerous reasons: Some are concerned that other doctors will learn of their cases and refuse to treat them; others fear that it will lead to an increase in the cost of their medical care. Still others forgo valid claims due to the perceived personal and financial costs associated with litigation.
Are there any types of medical procedures that you consistently discover to be at the root of medical-malpractice suits?
In my experience, it’s the healthcare provider’s mental state far moreso than the type or severity of a given procedure that’s relevant to whether a mistake occurs. Complacency often leads to errors. Likewise, “tunnel vision,” or the failure to look at the big picture, can also lead to medical mistakes.
In your years of practice, are there any cases or incidents that you found to be particularly instructive? Why (or why not)?
Although the medical school adage of “treat the patient and not the test” has value, it’s also important for healthcare providers to carefully assess the information provided by the tests they order. I’ve witnessed many instances in which highly abnormal test results were either interpreted incorrectly or disregarded by physicians — sometimes with fatal consequences.
To what extent, if any, have your experiences as a medical-malpractice attorney affected your perception of doctors and the medical establishment?
If anything, I’ve more respect for doctors and the challenges they face. However, I don’t believe that doctors should be treated differently than others when they make mistakes causing serious harm to patients. With regard to the medical establishment, I’m a bit more jaded. Hospital systems and health-insurance companies significantly impact the quality of medical care that patients receive, and, in my opinion, that impact is not always for the best.
Do you have any parting words of advice for LearnVest’s readership?
Don’t be afraid to get a second opinion. Further, don’t be afraid to find a new doctor entirely if you don’t feel that you are receiving proper medical care. Your health is too important to place in the hands of a healthcare provider that hasn’t earned your confidence, is not answering your questions, or is not giving you — or your condition — adequate time and attention.
An edited version of this article was originally published on Learnvest.com and Forbes.com in May 2013.
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