Unless it happens to you, medical malpractice might seem like something that exists only in the form of television commercials on daytime TV. But when you or someone you love is injured—or worse, killed—as the result of negligence on the part of a doctor, hospital or nursing home, the devastating effects of malpractice become a frightening reality.
Amy Collignon Gunn, of The Simon Law Firm, PC, says that when clients come to her with cases of medical negligence, few have any idea what the process entails. “I take the counselor part of my job very seriously,” she says. “They’ve often been through a very traumatic experience and are in need of guidance.”
Gunn’s first step in meeting with a new client is to make sure that she completely understands the circumstances leading up to the case. “I have always loved science, so I have a genuine interest in this field of law,” she says. If the client chooses to hire Gunn, they are asked to sign a medical authorization form that allows her access to their medical records. “It definitely takes time, sometimes as long as eight to 10 weeks, before I get the records, depending on who is providing them,” Gunn says. “Once I get the records, I provide them to a third party medical professional, whose confirmation of negligence is required before the suit can continue. He or she has to agree that the standard of care has been breeched.”
Once in court, Gunn says, a combination of poor publicity and restrictive legislation has made medical malpractice lawsuits more complicated for plaintiffs and their counsel. “The reality is, if the case goes to a jury trial, it can be difficult to come in on an even playing field. There is a wide misconception that many medical negligence lawsuits are frivolous and that everyone’s insurance rates will go up if they find in favor of the plaintiff,” she says. There are also psychological biases that can work against the plaintiff. “We all have to seek medical care for one thing or another, and because most of us don’t really understand medicine, we have to trust our doctors. Siding with a plaintiff can be a difficult thing to do, because it requires admitting that doctors can be wrong.”
Because of these factors, and because Missouri law limits how much restitution can be awarded to a plaintiff, Gunn says she finds herself in the difficult position of helping the client decide whether or not it’s worth it to sue. “I also have to be a reality check,” she says. “A lawsuit can drag on for years, the emotional cost is very high, and at the end of the day you may have very little to show for it. It’s so distasteful because you’re talking about someone’s life and well-being.”
But there are still many cases that are tried and come out in favor of the plaintiff. “I just handled a case in Cole County for a man whose doctor failed to follow up on some abnormal lab results, and as a result my client endured progressive kidney disease that resulted in dialysis and one failed kidney transplant,” Gunn says. “These can be life and death cases.”
Mark Bronson, partner at Newman, Bronson & Wallis, says that the best way to protect yourself against medical negligence is to ask a lot of questions. “Be your own advocate,” he says. “Do not hesitate to get a second opinion, and make sure you understand exactly what is being done and why.”
He agrees that legislative reform makes it harder than ever for people to seek justice. “I get several calls a week—sometimes two or three a day—about potential medical malpractice suits, many of which are meritorious, but ultimately are never filed because in the end its not feasible,” he says.
Those that are filed are frequently settled out of court. “Those with the most merit, with the clearest fault on the part of the health care provider, are usually settled,” Bronson explains. “ ‘Merit’ can mean someone was killed, suffered permanent disability, requires future medical care or suffered loss of income.”
Bronson believes that the laws passed to limit the number of medical malpractice suits, meant to protect Missouri citizens, actually protect the insurance companies. “The achieved intent was to get attorneys to be more selective, but the downside is that people with meritorious cases can no longer find anyone to represent them,” Bronson says. “They are being cheated out of the compensation they deserve.”