You think that you or someone in your family has been a victim of malpractice. Should you sue?
First, make sure in your own mind that there has been real malpractice, which means flagrant negligence or marked failure to treat by some acceptable method.
If the situation has not already deteriorated too greatly, you may want to try to talk over the situation with the doctor concerned. Phone and say frankly that you're disturbed and even considering a lawsuit, but you're willing to hear the doctor's side if he or she is willing to sit down with you without charge. You just may hear a new point of view.
If you decide you indeed want to sue, find a lawyer who regularly handles malpractice cases. Dr. John Barchilon, author of "Malpractice and You" (Ace Books, 1975), says: "Far too many general practice lawyers fail to understand the difficulty of malpractice litigation. . . . They can tie up a case for years through inept management."
Lawyers in this field will give you an initial interview at no cost to see if they think you have a case. Since virtually all such cases are taken on a contingent fee basis -- the lawyer gets a fee only if you win -- expert malpractice lawyers will not take your case unless they think they have a very good chance of proving and winning it.
An experienced malpractice lawyer can also tell you whether or not what has happened is probably real malpractice, or an example of the many times when well intentioned care fails to have a good result. A doctor is not required to be successful. Neither a wrong diagnosis nor the ineffectual use of one of several possible treatments is malpractice, if the doctor's decision was medically reasonable, even though others may have made a different diagnosis or treated the patient differently.
Here are some examples of real malpractice cited by Barchilon:
*If you did not get an adequate explanation of what was to be done to you and its possible pitfalls, and you did not give your informed consent, then a bad result may indeed be ascribed to malpractice.
*If a cast is set too tight -- tighter than medically reasonable -- and harms you, it may be malpractice.If someone in a hospital gives you the wrong medication and harms you, it is malpractice.
*If a doctor abandons you in mid-treatment when you still urgently need attention -- because you haven't paid your bill or he doesn't like you -- it can be malpractice, unless you were warned and given a reasonable chance to get other care.
Lawyers and others still say: Do not decide to sue lightly. You will be involved in a long and anguished proceeding, possibly over several years. Nasty and upsetting things may be said on both sides. The very arguments and proceedings may drain you emotionally. Clark Havighurst, Duke University law professor and a strong spokesman for the medical consumer, says, "The emotional toll . . . on both providers and patients is unmeasurable but very high."
It is also easy to become obsessed to the point where the whole issue becomes more costly emotionally than the initial harm. I once had a tiny hint of this. My car was struck from behind while I was sitting at a stop light. I suffered a back injury and was hospitalized for several days. I saw a lawyer and sued.
The defendant's insurance company finally agreed to a settlement. But in the months in between, knowing that I might collect an impressive sum to compensate for lost work time, it was sometimes hard to overcome the feeling that "I had to have a back problem" until the case was settled. I think the psychological pressure slowed down my recovery.
On the other hand, being harmed and failing to have some way to respond can be equally disturbing. If you have been harmed, suing is your right -- if you can find a lawyer who thinks you have a strong enough case.