Oklahoma Injury Lawyer Blog

Recently, an independent medical panel has found that the medical staff for the San Diego Chargers did not commit medical malpractice in handling a concussion suffered by Kris Dielman. Dielman suffered a concussion in 2011, after being knocked to the ground in a helmet-to-helmet collision that occurred in a game against the New York Jets.

After the collision, Dielman continued to play in the game. Medical staff for the San Diego Chargers did not diagnose him with a concussion until after the game had concluded. While he was on the plane back to San Diego after the game, Dielman suffered from a grand mal seizure. He would never return to the football field.

Last year, a joint committee of the NFL and NFL players union requested an investigation into the incident. The investigation also looked into Chargers team doctor David Chao, who had previously been the subject of several medical malpractice complaints.

The panel's investigation concluded that "Mr. Dielman's care from the moment his concussion was diagnosed was appropriate and consistent with the standard of care. The subsequent seizure, an extremely rare event, suffered by Mr. Dielman during the plane's descent into San Diego could not have been foreseen nor prevented."

Surgeons commonly refer to their mistakes as "never events," and for good reason. The mistakes that surgeons make should never happen. Unfortunately, a recent article reports that such 'never events' remain a frequent occurrence.

According to a recent study conducted by the Johns Hopkins University School of Medicine, every year approximately 4,000 'never events' occur in the United States. These events may include "leaving a sponge or instrument inside a patient, perform at incorrect procedure, or operate on a wrong body part or even a wrong patient." While some instances of 'never events' can go undetected for the rest of a person's life, 1 in 15 such events will lead to the patient's death.

Studies have shown that the use of simple precautionary procedures such as operating-room checklists and marking the surgery site in ink are helpful in preventing surgical errors, however they are not universally employed. According to the leader of the Johns Hopkins study, Martin Makary, such incidents will continue to occur until a public accounting of surgical errors has been made.

Most hospitals currently report surgical errors on a voluntary basis, which leads to many errors being missed. When errors are not reported, surgeons are more likely to repeat them. In the Johns Hopkins study, for example, 12% of the doctors made at least two surgical errors, if not more.

Oklahoma law imposes a statute of limitations on medical malpractice claims, which essentially means that if you do not bring a malpractice claim within a specified amount of time, you will be barred from bringing that claim forever.

According to Okla. Stat. Ann. Tit. 76, §18, claimants who wish to file claims for damages against a physician, health care provider, or hospital are subject to a two-year statute of limitations. For this particular statute of limitations, the time begins to run not at the date the alleged injury occurred, but rather on the date that the claimant "knew or should have known, through the exercise of reasonable diligence, the existence of the death, injury, or condition complained of." Wrongful death actions are subject to the two-year statute of limitations as well, according to Okla. Stat. Ann. Tit. 12, §1053.

According to The Tulsa World, the sheer number of medical malpractice judgments handed down in Oklahoma has hit a 10-year low. The number fell by 28 percent, from 159 payouts in 2009 to 114 payments in 2011.

One major factor in this reduction of judgments is a compromise tort-reform law signed in 2009 by Gov. Brad Henry. The law provides a mechanism through which judges can easily dismiss no-merit lawsuits before they ever go to trial. Other restrictions provided by the law include:

• A limit on the plaintiff's ability to recover from a defendant with "deep pockets" who is only partially responsible for the injury
• A requirement that injured plaintiffs produce a certificate of merit before they are permitted to file a malpractice suit
• A cap on damages that can be recovered for pain and suffering

As a result of this and other acts of tort reform by the Oklahoma Legislature, attorneys are now less willing to take on medical malpractice cases due to the heightened expenses involved and lower potential awards. Accordingly, tort reform opponent Rep. Richard Morrissette believes, "Innocent people are being hurt by a law that was put in to help insurance companies using doctors as the bait and lawyers as the scapegoats."

Others applaud the changes. According to Secretary of State Glenn Coffee, "It appears to me lawsuit reform is already delivering what it promised . . . I believe these positive signs will grow with time. This news will certainly help Oklahoma retain and recruit physicians."

The other big reason it's so hard to recover in a medical malpractice case? It's expensive for the plaintiff (and their attorney) to bring a medical malpractice case to trial. With doctor/witness depositions, expert opinions, and other expenses, the cost can quickly be over $50,000 (and that's without attorney fees).

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.