What are the three most common mistakes that can ruin my malpractice case?
Mistake #1: Failing to get all of the medical records.
It seems basic that you need all of your medical records to prosecute a medical malpractice case, but the reality is that hospitals and physicians rarely will give you all of your medical records. In fact, it is often the case that the most important medical records will not be provided to you by the hospital. What do you do?
The best and only way to ensure that you possess all of your medical records is to inspect the original records yourself at the hospital or the physician's office. New York's Public Health Law section 18(2) requires that within 10 days of a written request for access to medical records, the healthcare provider must give the qualified person the opportunity to inspect the medical records.
When inspecting the original medical records at the hospital or physician's office, you can compare the copy provided to you by the healthcare provider to the original medical records. This is the only way to ensure that you possess all of your medical records. This is the only way to prevent surprises in your malpractice case.
Mistake #2: Failing to meet with the treating physicians to discuss the issues in your case.
More often than not, the plaintiff's treating physicians are cooperative and willing to meet with their patient's attorney, even in malpractice cases. The expense of meeting with the treating physicians is well worth it. The non-party treating physicians may not support crucial aspects of your case, i.e., earlier diagnosis of the medical condition would not have made a difference in the outcome, and ideally, you need to know about the adverse opinions of these physicians BEFORE you file the lawsuit.
Mistake #3: Failing to inspect the medical records to determine if the records have been altered by the defendants or the non-party treating physicians.
Medical records are sometimes altered by healthcare providers after lawsuits have been filed against them. THIS IS A FACT. The physicians alter the medical records to include notations known as CYA, or COVER YOUR ASS. Such notations in the medical records often exonerate the physicians by stating, "patient failed to follow advise to go immediately to the Emergency Room", or "patient failed to take anti-seizure medication despite repeated attempts to encourage compliance".
In many cases, altered medical records can be identified by a careful lawyer. There are usually more than one set of the medical records that have been disseminated by the defendant physician and a careful comparison of the multiple sets of the medical records, often reveals changes made by the physician. Proof that a defendant physician has altered medical records after the filing of a lawsuit can be critically important to your malpractice case.