Oklahoma Injury Lawyer Blog

It's exactly what it sounds like. It's a tear in the largest artery in the body. Common symptoms include sudden severe pain that feels like something is tearing, stabbing, or even just a sharp localized pain. Less common symptoms include congestive heart failure and ECG changes.

Problems with misdiagnosis, or failure to diagnose often occur because of the variety of symptoms. A proper diagnosis can be made by looking at a chest x-ray, CT scan, or MRI.

Recently, Richard Holbrooke suffered an aortic dissection:

CNN Health cites Five Commonly Misdiagnosed Diseases:

1. Aortic Dissection - it sometimes feels like heartburn


2. Cancer - breast and colon are the most common misdiagnosed. The study attributed doctors failing to follow proper guidelines


3. Clogged Arteries - confused with patients being out of shape


4. Heart Attack - sometimes the symptoms are limited to sense of fullness in the chest, nausea and not feeling well


5. Infection

The article suggests asking for more tests to prevent "yourself from becoming a victim of misdiagnosis." I would also suggest going to get a second opinion from another doctor.

The plaintiff's attorney in medical malpractice cases almost always works the case on a contingency fee. This means that the attorney will get a portion of any settlement or court verdict that the client gets.

Why would someone want to hire an attorney on a contingency fee case?

• "Access to the courts" - Most people can't afford to hire an attorney hourly. If attorneys could only work on an hourly basis, the only clients that would hire an attorney would be rich people and companies. The contingency fee helps level the playing field.


• It spreads the risk between the client and their attorney. An hourly rate puts all the risk on the client and their attorney would win (get paid) even if the case is lost.


• The interests of the attorney are strongly in line with that of the client. The higher the settlement, the higher the attorney fee.


• Faith in the client and their case - An attorney isn't going to take a contingency fee case if he/she doesn't think there will be any recovery.

The standard attorney answer is that "it depends."  Here's several reasons why it takes a while before a medical malpractice lawsuit is even filed:

• We first need to obtain your medical records.  Typically there are multiple hospitals and doctors offices.  It generally takes about a month to obtain these.  Some medical billing/records departments are really slow about it.  These places often require 2-4 letters/faxes and followup phone calls to get them to send the records.  A lot of medical providers use a third party billing service, so they'll be different offices for us to request records from.  Some of the services are prompt (they charge us to get the records so they have an incentive to get them to us), while others are cumbersome.  

• Once we get all the records together we review them.  If we still thing you still have a viable case, we'll then send the records to a medical expert.  This is generally a doctor or a nurse.  Oklahoma law requires that an Expert Affidavit be included in any medical malpractice case.  We did this as a matter of course before the law went into affect though.  It's basic due diligence on our end to get a medical expert's opinion.  An expert will generally take several weeks to get back the file back to us.  It's typical for a doctor to charge $400/hr to review medical records.  A medical malpractice file can easily take a doctor 10 hours to fully review and write an opinion on it. 

• If the doctor agrees with us on the case, we pursue the claim.  Our next step is to contact the doctor and/or hospital involved in the malpractice by sending our letter of representation ("rep letter").  Note that two to four months could have easily passed from initially meeting with the client/attorney to even get to this point.  The defendant's attorney(s) will generally respond within a few weeks of our rep letter.  Sometimes, albeit very infrequently, the opposing side is willing to talk settlement at this point.  If settlement talks are not feasible, or they fall through, we file a lawsuit. 

I was just reviewing my "Closed Files" list.  Nearly all the cases ended with some type of settlement.  A few of the cases were taken on and after "working the file" were closed after it was determined a favorable result could not be obtained for our client(s). 

One particular file from last month still irks me a little: Our firm spent several thousand dollars just to find out if it was in fact a viable medical malpractice case.  I like to say to my clients with a tough medical malpractice case: "well, after I do my homework, I'll know if you have a winnable case."  Other lawyers call this due diligence.  Remember that just because something went medically wrong, a doctor was not necessarily at fault.  Even if the doctor was at fault though, the plaintiff must prove that the standard of care was breached. 

On this particular case we spent a little over $400 obtaining the medical records (hospitals rightfully charge for copies).  We also paid a doctor about $2500 to review the records and give us her opinion of the case.  Like this client's case, most of our cases are on a contingency fee basis.  We only get paid if we get a favorable settlement or verdict (and can collect) in a case.  The court costs, expert expenses, etc. are deducted out of the settlement/verdict.  

In this case: we couldn't obtain a favorable result so our attorney's fee (how much our firm was paid) was technically -$3000.  The moral of the story: it's better to learn upfront about a case, and spend $3000 on a good doctor/expert, than to spend ten times that (and a few years of work) on a case that only gets the clients hopes up, and walk away with no recovery.

One of the recent changes to our tort system is that, to file a medical malpractice case, an expert affidavit has to be attached to the Petition. The attorney must attest that:

1) Plaintiff has consulted with a qualified expert
2) Plaintiff has obtained a written opinion from the expert and that the expert believes that a reasonable interpretation of the factors supports a finding of professional negligence
3) Based on the consultation with the expert, plaintiff believes the claim is meritorious and based on good cause.

The law goes into effect November 1, 2009.
Here's the full statute: 12 O.S. § 19 . Professional Negligence Action - Expert Opinion Affidavit Requirements - Exemption

The Pop Tort cites a recent report on medical malpractice and the increased malpractice insurance rates for doctors.  The conclusion of the report:

"[D]espite rising malpractice insurance premiums over the past several years there has actually been a drop in medical malpractice payouts made by New York doctors."

Today's Huffpost has an article on the American Medical Association Lobbyists' efforts to cap medical malpractice damages:  Doctors' Lobby Attack on Reform Aimed at Forcing Malpractice Caps on Obama.

The article also mentions the maximum damages allowed in medical malpractice cases out in California.  They're unchanged for the last 30 years! 

AllGov reports that military personnel cannot sue the government for medical malpractice.  The article stems from the story of Cindy Wilson.  Ms. Wilson was in the U.S. Air Force when she gave birth to her first child at Langley Air Force Base.

The doctors handling the delivery performed a cesarean section, and inadvertently, severed Ms. Wilson's uterine artery causing massive internal bleeding.  Two surgical sponges were even left inside Wilson's body.  The baby survived, while the mother died 12 hours later.

Military families that are the victims of medical malpractice may soon be able to hold the military liable for negligent medical care.  Congressman Hinchey (D-NY) has authored a bill that will Reverse Military Medical Malpractice Injustice.  Hinchey states that, "[t]his legislation provides members of the military and their families with a way of holding their medical providers accountable for negligent care.  They will no longer have nowhere to turn should something terrible happen."

This could be great news for the service men and woman of our country.  I'm interested in seeing what the expected additional cost would be.

I'm currently reading Blink: The Power of Thinking Without Thinking by Malcolm Gladwell.  The book takes a look at snap judgments and what we do in an instant.  Gladwell also compares snap decisions with slow analytical decision making.  He leads with an example of a sculpture.  All the evidence, such as testing the material, shows that the sculpture is authentic.  This is contrasted to a group of experts that immediately thought something was wrong.  They couldn't put their finger on it, but something didn't seem right.  The first word that popped into the mind of one of the experts was "fresh."  Which way is more accurate?  After a year of testing it was determined that the sculpture was in fact a fake.  

Besides being a good storyteller, Gladwell discusses the likelihood of a doctor getting sued for medical malpractice.  He gives the example of you, the reader, working for a medical malpractice insurance company.  You're given two choices to decide how prone a doctor is to committing medical malpractice:  1) Do you examine the doctor's training and previous records to see how many errors they've made over the last few years? Or 2) Listen in on a brief conversation between the doctor and a patient?

According to Gladwell, listening in on the doctor/client interaction is much more predictive than where the doctor went to school and how error prone he/she is:

Analyzes of malpractice lawsuits show that there are highly skilled doctors who get sued a lot and doctors who make losts of mistakes and never get sued.  At the same time, the overwhelming number of people who suffer an injury due to the negligence of a doctor never file a malpractice suit at all.  In other words, patients don't file lawsuits because they've been harmed by shoddy medical care.  Patients file lawsuits because they've been harmed by shoddy medical care and something else happens to them. 
(underlining added).

Gladwell states that the something else is the human interaction element.  How was the patient treated on a personal level?  In other words, people don't sue doctors they like.

Today's Journal Record reports that the Oklahoma Legislature has reached a compromise with a new civil justice bill.  The bill mainly affects Oklahoma personal injury and medical malpractice lawsuits. 

Some of the changes:

• Noneconomic damages are capped at $400,000 unless willful misconduct is proven in court.  (There was a push for a "hard" cap of $300,000 which could not be removed).
• In cases where the judge and jury decide that noneconomic damages in excess of $400,000 are warranted, the additional money would be provided by a state-created indemnity fund. This begs the question: who's funding the additional damages?
  
• Concerning "bad actors" in the medical community - The bill prevents information from peer review proceedings from being discovered by a plaintiff in a lawsuit except in very limited circumstances.
• Class actions: Republicans dropped their attempt to make all parties to a class-action lawsuit opt in to participate.  The civil justice bill sets specific guidelines for certifying a class and for determining attorney fees.
• The "certificate of merit" requirement is back for professional liability cases.  The previous certificate of merit requirement only applied to medical malpractice cases (and was thus unconstitutional).  This requirement now applies to other professionals.
• Joint and several responsibility: Allows a defendant who is more than 50 percent at fault to pay an additional portion of the damages.

The AP (5/5, Juozapavicius) reports, "A 15th medical negligence complaint has been filed against an Oklahoma City surgeon who made international headlines after performing a risky operation in 2006 that left a Russian teen brain dead." Of the other cases, "as many as 11...against" Paul Christopher Francel "could go to mediation this month."

From the American Association for Justice News Brief.

Jeff Raymond's article, "Doctors flee state is simple a myth," was published yesterday in the Muskogee Phoenix.

He backs up his assertion with some relevant facts:

Oklahoma had 193 physicians per 100,000 people in 2003, according to American Medical Association statistics. By 2007 the ratio had grown to 200 per 100,000 people.

In 1998 Oklahoma had 6,412 physicians. By 2007 the number had grown to 7,245, an 11.5 percent increase.

The Seattle Times ran a story today detailing the Oklahoma Bar Association's response to the recent attacks/proposed changes to our civil justice system.  The proposed changes would limit damages available to Oklahoma personal injury and medical malpractice victims. 

Our OBA president's take on the proposed legislation:

"I call upon the Legislature to produce facts -- not myths or urban legends -- but proof of the necessity of the measures that have been introduced."

"Some of the supporters of this legislation know that Oklahoma does not have a tort crisis."

"Like they say where I'm from: 'That dog don't hunt."

The article also cites a survey of Oklahoma trial judges that found that 90 percent of judges believed there was no litigation crisis requiring legislative changes.  The survey also found that there was no severe problem in Oklahoma with frivolous lawsuits.