Moderator: Welcome to today's Consumer Law Viewpoint discussion with Patrick Regan. Pat, we're glad to have you with us. Do laws for medical malpractice cases vary greatly from state to state? Are Virginia, Maryland and the District "patient-friendly" jurisdictions, or not?
Patrick Regan: Good afternoon. It's nice to be here and I look forward to answering the readers' questions. All three of the local jurisdictions, D.C., Maryland and Virginia, have different laws governing medical malpractice. While none of these jurisdictions would be regarded as particularly "patient friendly," Virginia's laws make it much more difficult for patients who are the victims of malpractice to obtain fair compensation for their injuries. For instance, babies who suffer cerebral palsy as a result of malpractice in Virginia are prevented by law from bringing a lawsuit to recover the lifetime medical costs they will require. Such restrictions do not exist in most of the states in the country. Virginia also has a limit of $1.5 million on damages for any victim of malpractice, even if the HMO's medical malpractice will cause the patient to incur more than $1.5 million in medical bills. The important point to remember is that each case is different, each state has different laws, and if you have reason to believe that medical malpractice has occurred then you should have the case investigated by an experienced lawyer.
East Hampton, Conn.: Why do you suppose there is so much malpractice? Are doctors too busy doing "other things" besides practicing medicine?
Patrick Regan: This is an excellent question and one which is receiving a lot of attention from various investigative agencies, including the U.S. Senate and the House of Representatives. Unfortunately, one of the leading causes of medical malpractice in the last 15 years or so has been the tremendous increase in Health Maintenance Organizations (HMOs). HMOs very often put cost issues above patient care. If a test costs $250, the HMO will discourage the doctors from ordering it, or will refuse to authorize such tests when doctors do in fact order it.
Memphis, Tenn.: My daughter was given some medication in the hospital that caused her to seizure in Feb. 2002. She is still taking medicine to keep her from seizuring (Dilantin). Her PCP also gave her steroids; she is diabetic and not supposed to take them. He conveniently lost her health records. He started a new record. What can be done about this?
Patrick Regan: The most important issue, based on the information that you have provided, is to have a qualified expert (doctor) look at the medical records for the time your daughter was in the hospital when the first seizure occurred. Losing records happens much too frequently, but that fact alone does not mean that the doctor has something to hide. Important questions that would need to be answered include: How old was your daughter at the time? Why was she in the hospital to begin with? Did she have a prior history of seizures? Has a cause of the seizures ever been identified by any treating or examining doctors? You should be able to contact the medical records department of the hospital and ask for a complete set of the hospital records and then have them reviewed.
Washington, D.C.: Can you speak a bit more about the rise in medical malpractice claims since the advent of managed care?
Patrick Regan: Sure. In managed care situations, frequently but not always, primary care doctors (internists usually) are either expressly discouraged from ordering tests on their patients, or they are given financial penalties if they order diagnostic tests. For example, all studies in the last 10 years have demonstrated that colonoscopy is a very effective way of diagnosing conditions in the colon that can lead to fatal colon cancer. However, many HMOs will not allow doctors to order colonoscopies on patients under age 50, even if the doctor suspects that the patient may have early-stage colon cancer. Colon cancer is very treatable if detected early. In effect, the physician is being told how to treat his/her patients by someone who is more concerned with the HMO's bottom line than the patient's health. This is the most important reason that the U.S. Congress tried to pass a meaningful Patients Bill of Rights in 2001. The law did not pass since there are some "big business" interests that are not particularly concerned with the rights of patients.
Moderator: If an HMO refuses to order tests that would have revealed cancer in an early stage, and the cancer is later diagnosed when it is too late, is there a potential malpractice case?
Patrick Regan: Yes, very often a delay in diagnosing a disease such as cancer will result in the disease progressing, untreated, until by the time it is diagnosed, it's too late. For instance, often times doctors do not routinely order mammograms on patients every year as the standard of care requires. Then by the time the patient notices a change, which would have been detectable on a mammogram several years earlier, the breast cancer has progressed to the point that it is a terminal condition. Early detection is the key to treating most diseases, and the question of whether there has been "malpractice" will depend on whether the disease should have been detected at a time when it was curable.
Crofton, Md.: I'm a construction worker who just injured himself on the job. I've been told (non-legal advice) I should consider pursuing a lawsuit. If I look into this do I have to act quickly? Is there a limit to the amount of time I have to file? Thanks.
Patrick Regan: It sounds as though you may have a workers compensation claim and there are very definite time limits that apply to these types of cases. The time limits could be very short so you should investigate this matter immediately.
Alexandria, Va.: How do you receive payment? Do you require a retainer, or do you take a percentage of the settlement? What if you lose?
Patrick Regan: This is a very important question for those patients who suspect they may have been a victim of malpractice. Lawyers who are qualified and experienced in these cases should agree to review the facts and investigate the case with no charge to the patient, or the patient's family. If the investigation reveals a valid case, then the lawyer should accept the case on a contigency basis. My firm does not charge any fee unless we are successful in obtaining a recovery for the client.
Washington, D.C.: What is the statute of limitations in Washington, D.C.?
Patrick Regan: In the District of Columbia, there are two statutes of limitations that GENERALLY apply to medical malpractice. For injuries caused by medical malpractice, the statute of limitations is generally THREE (3) years. For cases where the malpractice causes the death of the patient, there is a ONE (1) year statute of limitations. The laws in Maryland and Virginia are different, so it is very important to investigate a case promptly. Please note that there may be exceptions to the statute of limitations, so if you are unsure, please seek competent legal advice.
Silver Spring, Md.: What are the factors you consider in determining if a potential client has a legitimate case? Thanks for answering.
Patrick Regan: The most important factor in most investigations is whether the conduct of the doctor/nurse/lab/hospital/HMO caused injury or damage to the patient. For instance, if a doctor does not read a chest xray properly, and tells the patient that the xray was negative, but in fact it showed lung cancer then that "mis-reading of the xray" is negligence, or malpractice. However, if another doctor correctly reads the xray one month later, then the "delay" of one month in diagnosing the lung cancer has not "caused damage or injury" to the patient. Usually the delay in diagnosis would in such a situation have to be about six months or more to change the patient's likely outcome. Again, this is a rather straightforward example, and most experienced lawyers can investigate a potential case and inform the patient in a fairly short period of time if there is a case. Another important factor is the degree or extent of the damage. If the damage is $25,000 then competent lawyers would inform the patient that while they may have a valid case, it is not economically feasible to proceed.
Washington, D.C.: With so many malpractice suits out there, do you find that juries are less likely to award the plantiff and be skeptical of their motives?
Patrick Regan: Another excellent question! Reliable studies show that over 65 percent of cases that go to trial result in jury verdicts finding AGAINST the patient, or plaintiff as they are called. This statistic may change a little from state to state, but not significantly -- it's about the same in all three local jurisdictions. That means that plaintiffs/patients win only 35 percent or less of cases that go to trial. One of the most significant reasons for "jury suspicion" of medical malpractice claims is the tremendous amounts of money that have been spent on advertising by the insurance companies and HMOs seeking to convince the public that there is some crisis. Studies by the Congressional Budget Office and other "independent" organizations have shown that the only "crisis" has been caused by the investments made by the insurance companies (Enron, etc.) and the large salaries the insurance companies are paying to their executives. However, it's been my experience that even when jurors come to court with some "bias or prejudice" against the patient bringing the lawsuit, even those jurors will be fair when it is demonstrated that the HMO/doctor/hospital malpracticed on the patient and caused serious injuries or death.
Fairfax, Va.: Is there any political movement afoot to increase the Med-Mal cap in Virginia?
Patrick Regan: Yes, and in fact this is generally brought up each year in the Virginia State Legislature, but there are very powerful lobbyists for the insurance industry that continue to keep the legislation from passing. Everyone thinks that they will never become the victim of malpractice and thus it's only the past victims who tend to come forward to testify to the truly tragic consequences of the artificial limitation or cap on recoveries in Virginia. Doctors and hospitals spend lots of money (millions per year) hiring lobbyists so that they can continue to get special treatment under the law.
Arlington, Va.: Mr. Regan, do you charge for a consultation? Do you conduct them over the phone or in your office?
Patrick Regan: No, there is NEVER a charge for consultation. I generally prefer to have the client come in and meet with me (I think that it's important that they get a chance to know me if they are going to be putting their trust in me) but if they cannot come in then sometimes it's done over the phone or I go to the client.
Moderator: What are the types of damages that can be recovered as a result of HMO or hospital medical malpractice?
Patrick Regan: The issue of the damages that are recoverable varies depending on the type of case (injury or death), and they may vary a little by jurisdiction as well. But they include: past medical bills, future medical bills, past lost wages, future lost wages/income, disfigurement, pain, and permanent disability. Under some situations, the spouse of an injured patient may also have a claim. Sorry this was such a short answer.
Lorton, Va.: In determining a "good" malpractice suit, how does emotional distress, days of work missed, etc., factor into whether you have a good case or not?
Patrick Regan: Those particular issues are very important to the question of damages, but usually do not play a role in whether there was malpractice.
They are important in evaluating whether the case is economically feasible.
Washington, D.C.: What would be an example of a claim you won for someone who was very badly wronged that gave you great deal of satisfaction?
Patrick Regan: I actually take a great deal out of helping all my clients. They all come to my firm in a time of rather dire circumstances, and through our efforts we are able to allow them to obtain medical care, support their family, get back to work, etc. Certainly some cases are bigger than others, but they are all important to the client and I get satisfaction from knowing that we have made a difference.
Rockville, Md.: I'm sure you see a wide spectrum of injury and malpractice claims, but I'd be interested to know if you see an emphasis in any one or a few different areas. I guess what I'm asking is where do you find ordinary, everyday folks going about their lives to be most vulnerable or susceptible?
Patrick Regan: I have represented doctors who have been the victims of malpractice, judges who have been malpracticed upon, bus operators who were misdiagnosed with colon cancer, homemakers who had breast cancer go undetected and untreated for several years, babies who will never walk because of malpractice, elderly who will spend their golden years confined to a wheelchair because the nurse would not follow a simple procedure to turn off medication, and children who will never grow up and have a family because of malpractice. In short, malpractice does not discriminate because of age, sex, race, or economic means. If you get medical treatment, you or your family can be the victims. The point you making however is correct: usually ordinary folks are more trusting of healthcare providers and may be less likely to question matters or to obtain second opinions -- and that can easily lead to very tragic consequences.
Alexandria, Va.: What are your rights when you are misdiagnosed and given unnecessary surgery? When an illness mimicks something else then the doctors can claim that they were working with the best information that they had at the time. If you get a second opinion and are told that their decision was wrong should you sue?
Patrick Regan: If you have been told by a subsequent doctor or healthcare provider that there was malpractice then you should definitely investigate the circumstances surrounding the treatment you received. However, the fact that doctors make a judgment call and that call is wrong, does not mean that there was malpractice. In other words, if it's a 50/50 call and the doctor, in his/her judgment, makes the wrong decision that will not be malpractice. Just because there was a bad outcome does not mean there was medical malpractice. Those are general points to keep in mind in all cases. If you are suspicious, then consult a lawyer who will perform a thorough investigation.
Patrick Regan: Thank you to all who participated in this discussion. It has been a pleasure to discuss these important matters with all of you. There were excellent questions and significant public policy issues. This page has a link to our Web site if there are any follow-up questions. Thank you again.
Moderator: Our thanks to Patrick Regan, Regan, Halperin & Long, P.L.L.C., and all who participated.