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5 Secrets to Winning Your Next Malpractice Case

The statistics are scary. 

Only 23% of jury verdicts favor the plaintiff in New York in medical malpractice cases.  And it’s not hard to imagine why: the public is exposed to an endless barrage of media stories about frivolous lawsuits. The media doesn’t care about the truth—their only concern is bold headlines that grab attention. Unfortunately, by the time members of the public arrive for jury duty, their minds have been heavily influenced against those who bring a malpractice lawsuit.

So, what can you do? Simple, win your next malpractice case before you enter the courtroom. With the right tactics, you can expose the wrongdoing and even force the hospital/physician to admit their mistakes.  There are tried and proven tactics for exposing medical negligence that will win your next case before you walk into the courtroom.  

Secret #1: Preserve the Surveillance Video

A picture is worth a thousand words and there are surveillance cameras everywhere at a hospital (Albany Medical Center has 1,100 surveillance cameras).  

The surveillance video will often tell a different story from the defendants’ version of what occurred.  The emergency medicine physician may claim that they performed a thorough physical examination, but the surveillance video will show they never laid a hand on the patient (and you may have a claim for insurance fraud and punitive damages).  This is why surveillance video may be the most important evidence in your case.

Here’s the problem: the security departments of many hospitals will erase/overwrite surveillance video automatically every 30 days. If you don’t act quick to preserve the surveillance video, it will be gone forever.

As soon as you are retained, send a preservation notice for surveillance video to the hospital via certified mail, return receipt requested. The preservation notice should specify the date, time and ideally, the location of the surveillance video. The preservation notice requires the hospital to preserve the surveillance video and if they ignore it, you’ll have a strong basis for a motion for spoliation of evidence.

Secret #2: Get the Audit Trail

The audit trail is a snapshot of every entry in the electronic medical records that shows: the identity of the person making the entry, when the entry was made, the location where the entry was made and the substance of any change (deletion or addition to the records).

The audit trail may be indispensable to your case.  You might use the audit trail to show that the attending physician made changes to the electronic medical records 19 days after the patient died. The audit trail gives you the proof that you need to prove that the electronic medical records were altered after the date of treatment.

The defense will try to avoid disclosing the audit trail, but don’t let them get away with this.  You have the absolute right to an unredacted audit trail, pursuant to HIPAA, and you should insist on nothing less.

Secret #3: Conduct a Site Inspection

For some crazy reason, plaintiff’s lawyers rarely conduct site inspections in malpractice cases. Big mistake!

The site inspection may reveal things that you never imagined existed. A site inspection may reveal the existence of surveillance cameras in a part of the hospital that you were told did not have cameras.  The site inspection will show the equipment available in certain parts of the hospital, such as portable heart monitors in a heart attack case. The availability of such equipment might make or break your case.

Secret #4: Original Chart Review

The certification on a medical record is essentially worthless. Never trust a certification form for a medical record (if you do, be ready for a big surprise).

The only way to guarantee that you have all of the medical records is an original chart review.  The original chart review is your chance to inspect the original records (electronic or paper) and compare what you possess to the hospital’s records.  In most cases, you will be surprised to find out that there are significant parts of the medical records that were not disclosed by the hospital or defense counsel.  Radiology and billing departments may have a different set of records, including requisition slips and interdepartmental email.

Rule of thumb: do not do a deposition without first conducting an original chart review.

Secret #5: How to Get the Defendants Pointing Fingers at Each Other

The ideal scenario in a malpractice case is to get the defendants to blame each other. How do you do this? Hypothetical questions.

You might ask a defendant physician, “If you had known X [patient was coughing up blood], would that have changed your plan of treatment for Mr. Jones?” Ideally, the defendant will respond, “Yes, it would have changed everything.”  Then you only need to say, “Please share with us.”

If the defendant responds, “No, that would not have changed anything”, then they look silly for refusing to acknowledge what should be an obvious concession. For example, “If you knew that the physician’s assistant wasn’t testing PSA [prostate specific antigen is a blood test to rule out prostate cancer] for Mr. Jones, would you have done anything about it?”  If the defendant responds, “no”, they are essentially conceding that they too are guilty of malpractice.

Once a defendant blames another physician, you should stop asking questions. You’ve won your case.

Leave a comment below telling me what surprised, inspired or taught you the most (I personally respond to every comment). And if you disagree with my take on running a personal injury law firm, or have a specific, actionable tip, I’d love to hear from you.