Here’s a little secret that few lawyers believe: it takes 10 years handling medical malpractice cases just to become competent. Not good, competent. Why? Medical malpractice is a highly specialized area of law. There are no quick and easy settlements and even with the strongest facts, the defense will take you to trial.
That said, if you are passionate about stopping medical injustice, few things are as gratifying. Being a medical malpractice lawyer for injury victims is a wonderful way to spend your career. Still reading? This is how you can win your next medical malpractice case.
6 Tips for Winning Your Malpractice Case
Winning a medical malpractice case is hard. You’ve got to be highly selective, carefully prepare every aspect of the case and even when you’ve done everything right, the odds are against you.
These 6 tips that will drive the defense lawyers crazy and can give you the slight edge that you need to win.
Tip #1:Video is Worth a Thousand Words
Surveillance cameras are ubiquitous at hospitals. Hospitals have hundreds of surveillance cameras, both inside and outside their facility (e.g., Albany Medical Center has 1,100 surveillance cameras on their campus). Surveillance video might show your client’s arrival to the hospital as well as their triage assessment and physical examination. While the hospital will claim that your client received impeccable treatment, the surveillance video might tell a different story.
During a recent case, our firm received 42 hours of surveillance video of a hospital’s emergency department. The video showed our client’s triage assessment as well as multiple video recordings of our client clutching his chest (he later died of a heart attack).
The defendant physician testified that she performed a thorough physical examination, but the video of the triage assessment shows that she never touched the patient and appeared distracted and paid little attention to him. That’s right, the defendant physician lied under oath and fabricated entries in the medical record about a physical examination that was never performed (and we’ve got the proof on video).
The chairperson of the emergency department conceded that the hospital charged for a physical examination that—the surveillance video shows—was never performed. How did we prove this? We never would have known without the surveillance video. Surveillance video can make or break your case.
How to Get Surveillance Video from a Hospital
How do you get the surveillance video? You ask. Send a preservation letter to the hospital’s risk management department demanding that the hospital preserve the surveillance video. Surveillance video at a hospital is usually overwritten/destroyed after 30-45 days. If you do not send a preservation as soon as you are retained, the hospital’s surveillance video will be overwritten.
Memorialize Service of the Preservation Letter: If the preservation letter is hand-delivered, the process server should obtain a signature from the recipient of the letter and document the service of the letter—ideally with a video—in as much detail as possible. Otherwise, the hospital will claim that it did not receive your preservation letter.
Be Precise in Identifying What You Need: In your preservation letter, identify precisely what the evidence is: “any and all surveillance video from the emergency department on February 10, 2021 between 3:30 p.m. and 4:30 p.m.”
Make the Consequences Clear: In your preservation letter, make it clear that the destruction or loss of the surveillance video will have severe consequences for the potential defendant:
If any of the above evidence exists, and you fail to maintain same until the disposition of this claim, it will be assumed that you have intentionally destroyed and/or disposed of evidence.
You are not permitted and are not in a position to decide what evidence our client would like to review for this case. Accordingly, discarding any of the above evidence will lead to an adverse inference against the hospital in this matter.
The surveillance video will be delivered to you via a flash drive. With the surveillance video, you won’t have to guess what happened to your client. You’ll have video proof that will show everything.
Tip #2: Conduct an Original Chart Review of the Medical Records
NEVER accept a certification from the hospital that the medical records are complete. A certification that the medical records are complete is virtually never accurate. This is one of the most common fallacies that hospitals and their attorneys try to perpetuate.
Section 18 of New York’s Public Health Law requires that within 10 days of a written request for access to medical records, the provider must give the qualified person the opportunity to inspect the records. This is known as an “original chart review”. You should ALWAYS insist upon an original chart review.
During the original chart review, you can compare the medical records that you possess to the medical records possessed by the hospital. With rare exception, you will discover that the certified medical records that you possess are missing critical parts of the records.
You’ll find that the various departments of the hospital (e.g., radiology, diagnostic imaging) maintain their own records. For example, while you may possess a chest x-ray report, you will not possess the requisition order that sets forth the ordering physician’s reason for ordering the imaging study and the time of the request. Such information can be vital to your case.
Tip #3: Get the Audit Trail of the Electronic Records
Under federal law, hospitals are required to maintain an audit trail which tracks and records critical information about each entry in a medical record in an electronic hospital chart. The audit trail records the identity of any healthcare provider who accesses, records or edits the records in any way, and records the nature of any change to the records.
Every medical provider maintaining electronic records must also maintain an audit trail. 45 F.C.R. section 164.312. With an audit trail, entries in an electronic chart may be tracked and accessed, even if the electronic record has been altered at a later date. 45 C.F.R. section 170.210.
Embedded data within an electronic record is discoverable and as a part of the medical records, the audit trail cannot be redacted. The quality assurance privilege and attorney-work product privilege do not apply to an audit trail.
Why You Should Always get the Audit Trail
Why should you insist upon the production of the audit trail? An audit trail provides a wealth of information about the electronic medical records.
In a recent case, the audit trail showed that the attending physician made edits to the electronic medical record 19 days after the patient’s death. There was no reason for the attending physician to access the electronic chart 19 days after the patient’s death, except to alter the records to hide her negligence.
This is the beauty of electronic medical records. You can discover who accessed the records, made changes and the substance of the changes. Before the advent of electronic medical records, it was extremely difficult to prove that a healthcare provider altered a medical record.
Tip #4: Conduct a Site Inspection
Just as in a premises liability case, you have the right to inspect the area of the hospital where the malpractice occurred. Exercise this right! Serve a notice to inspect and bring your expert to the site inspection. You can take measurements and photo and videotape the site of the patient’s treatment.
In a recent case, the site inspection revealed the presence of a surveillance camera that was not disclosed by the defendant hospital. Perhaps it wasn’t a coincidence that the surveillance camera was aimed in the direction of the patient’s room and would have provided critical information about the medical treatment. We never would have known about the existence of the surveillance camera if we had not conducted a site inspection.
Tip #5: Videotape All Depositions of the Defendants and Witnesses
If you don’t believe videotaping depositions is necessary, stop taking depositions. Seriously. Non-verbal communication can be more damaging than the witness’s testimony, but without video, you are depriving the jury of this powerful evidence.
Case in point: during the deposition of a labor and delivery, I posed a question whether the nurse deviated from nursing standards of care by failing to inform her supervising nurse about the obvious malpractice of the attending ob/gyn. The labor and delivery looked down and then looked up at the ceiling and took almost 10 seconds to answer. With her arms folded, the nurse shook her head slowly, and finally answered that she did not deviate from the standard of care.
The nurse’s testimony was irrelevant. The nurse’s non-verbal communication—staring down and up and shaking her head—was devastating to the defense. After the trial, the jurors told me that the nurse’s non-verbal communication provided all of the proof they needed.
Tip #6: Case Selection is Everything
Malpractice cases are not won or lost in a courtroom. That is a myth. Cases are won and lost in case selection. Don’t evaluate potential cases with rose-colored lenses. Instead, look for the weaknesses of the potential case and take a hard look at the excuses and defenses of the potential defendant.
How do you know if a case has merit? You rely on your expert. If your expert reviews the records and tells you, “I can’t believe this happened”, you’ve got a good case. If the expert hems and haws and expresses uncertainty about the merit of the case, you must decline regardless of the severity of the injuries and damages. You will never succeed in malpractice law accepting questionable cases.
If you want to screen a potential merit, you can call me (cell: 518-265-9131) or call my expert, Charles Gabelman, M.D. (cell: 315-525-6807). We will give you free advice about your case. A relationship with a surgeon, such as Dr. Gabelman, can be invaluable.
Why I Do This
While walking outside of the courthouse following a defense verdict, tears began streaming down the side of the face of our client, a 31-year old female, whose 4-year old son had been brained damaged due to the negligence of a pediatrician.
I expressed a few feeble words of consolation, but our client turned to me as if she was shocked by my words. Our client stopped walking and exclaimed, “I’m not crying for me—I’m crying for you. You worked so hard and long on this case.” Turns out, our client wasn’t crying for herself, she was crying for me.
Just minutes after receiving the jury’s devastating verdict against her, our client was more concerned about me. It was at that moment that I knew I was doing the right thing. And that is the reason I get up every morning to go to work…and there is nothing I’d rather do.