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Medical Malpractice

What is the Lawsuit Discovery Process?

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What is the lawsuit discovery process?

Cases are won and lost during the discovery process. Once we start on a case, we get all the records and we look into the facts of every witness. Once a lawsuit gets filed that’s when the official discovery process begins. Written discovery such as initial disclosures, requests for admissions and interrogatories make up written discovery.

In the lawsuit discovery process, initial disclosures are a list of witnesses, copies of medical records and other documents that will be used at trial. Requests for admissions are essentially a list of facts that the opposing side wants you to admit to. Interrogatories are a fancy way of asking questions of the other side before depositions.

Every case is different and because every case is different the number of documents largely vary. Even in simple cases, it is common to have several hundred pages worth of documents to review. In large cases, discovery documents can reach over a million pages. Needless to say, document review can be quite demanding during the discovery process. Document review is usually the biggest  contributing factors in delaying the case.

Depositions are the sworn testimony of fact and expert witnesses. People who have knowledge of the disputed event will have to answer questions under oath. Every deposition will be taken with the threat of perjury penalties attached to their testimonies. Most depositions I take will be videoed. As much as the words of the witness will tell a story, their facial expressions will also tell a story. With video you are able to see who these people really are, and how they will present themselves to a jury. Depositions are also an opportunity to explore if there are other documents that may not have been disclosed which should have been.

Expert witnesses are largely determined by what is found in the reviewed documents and what type of case it is. Medical malpractice cases usually involve more expert witnesses. This is largely due to the underlying dispute being complicated, and the negligent standard being so hard to overcome. We may need a medical expert to testify of pre-existing conditions that may or may not have contributed to the patients pain as well as someone who can credibly testify of what should have happened during the surgery. Economists and forensic accountants are also commonly used to determine damages as well as a way to bolster or counter each other’s assertions.

In all phases of the discovery process it is imperative to understand that the devil is in the details and your attorney should be equally committed to each of the phases discussed above.

Dermatologist Dances into Cosmetic Surgery Malpractice

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Surgeon Dances into Medical Malpractice by making music videos while operating on her patients.

Dr. Windell Davis-Boutte’s website calls her “Atlanta’s most experienced cosmetic surgeon,” but recently her biggest experience has been dealing with medical malpractice cases. Dr. Davis-Boutte’s has four pending lawsuits against the doctor, and more than 20 videos previously posted on YouTube featured the board-certified dermatologist dancing and singing around exposed, unmoving patients. In one especially heinous video Boutte made incisions while she sang and cavorted to the camera.

26-year-old Ojay Liburd filed a lawsuit against Dr. Boutte last year. Liburd’s mother,  saw Boutte for a liposuction and a panniculectomy. It was weeks before her wedding, and she was credits away from earning her Ph.D. Unfortunately, Cornelius never wore her wedding dress and never married. After a more than eight-hour procedure, Cornelius’ heart stopped. She suffered permanent brain damage and will need care for the rest of her life.

During her procedure, Cornelius was not intubated, and did not receive general anesthesia. She was given a cocktail of drugs, including Propofol and fentanyl. No end-tidal CO2 monitoring equipment was used during the procedure. Boutte does not have hospital admitting privileges, and her Lilburn office is not a licensed surgery center. Cornelius went into cardiac arrest while Boutte was sew ing her tummy tuck incision. Her certified registered nurse anesthetist who was monitoring Cornelius’ vitals had already left the room. Boutte’s office elevator was too small for the stretcher, so first responders had to carry Cornelius down the stairs.  Dr. Boutte has settled the lawsuit with Cornelius’s family at an estimate of $13 million dollars.

Boutte’s website states “Dr. Boutté is board certified in both surgery and dermatology.” However, that is a lie. According to state medical records, Boutte is a board-certified dermatologist, and is not board certified in general surgery or plastic surgery. Unfortunately, in Georgia it is legal for any physician to operate, even if they are not a board-certified surgeon.

Remarkably Dr. Boutte is still performing surgeries and has not had her license to practice medicine  revoked. Her website still claims she is a board certified surgeon, and still is performing cosmetic surgeries. As Cornelius’s son puts it, Dr. Boutte is still getting up and going to work every day and making a great deal of money, subjecting patients who are none the wiser to her unsafe practices, while my mother a previous Ph.D candidate can no longer speak.

Like all professions there are good and bad doctors. Unfortunately, for whatever reason, the Georgia medical board has decided to protect Dr. Boutte and not suspend or revoke her license. If you or a loved one are considering plastic surgery, please investigate the doctor first. You can’t just believe what is on their website, you must investigate what certifications they are claiming and look into their malpractice history.

 

You Should Sue

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When an injury occurs, you should sue. There is a new burden thrust onto the person injured and also a burden to society. When our ancestors were trying to decide who should bear that new burden, it decided on the person who caused the injury. Wouldn’t it be an injustice for the injured party to carry that new burden? To not only have to deal with the injury but also the monetary consequences of that injury.  Most people agree that it would be unjust for an injured person to carry that burden. For that reason, tort law was created. Tort law was created to help alleviate the injured’s burden and help society move forward.

Many people believe that a person should not be punished for an honest mistake. I can understand that thinking, but that doesn’t take into the account the new burden forced on the injured party. Many times people have medical bills and extra care that are completely unexpected. If you were in an accident that caused you to need 24 hour nursing care, who should pay for that? While the cause of the accident wasn’t intentional, you certainly didn’t cause it, but you’re having to live with the consequences.

Most people don’t have sympathy for the driver who caused an accident while texting, but they often do when a doctor causes an injury. The question is why? The answer largely comes from a misunderstanding of what it takes to sue a doctor and why you should sue. A successful lawsuit against a doctor requires proving that the doctor’s actions were below the accepted standard of care. Below the standard of care is when a mistake, is not just a mistake, but a mistake that the medical community has deemed unacceptable.  It’s a mistake that the doctor should have known not to make.

But again, who should bear the burden of the injury? If the doctor’s actions causes someone to go blind, should that person bear the cost of that injury? Or should it be the person who gets to watch the sunset on their way home? The person injured’s life will never be the same.

It’s important to realize that I’m not saying the person who caused the injury is a bad person. I’m NOT saying that the tortfeasor intentionally hurt someone. If the injury was intentional, we would be talking about a criminal act and jail time. We wouldn’t be discussing how best to restore the injured party. Put simply, the defendant committed a mistake that breached a duty of care owed to others and they should be held responsible for that breach.

 

Insurance Denied Your Claim, What Can You Do?

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Insurance Denied your Claim, Now What?

The main objective for insurance companies is to make money. Insurance companies are no different than any other business with shareholders. They exist to maximize profits. I don’t begrudge insurance companies for trying to make money, again, that’s their business. But, an Insurance Denied your Claim, and that’s an extreme burden. I like to know where everyone’s loyalties lie, so next time you watch a cute ad with a cool jingle, it is important to remember the insurance’s priority. It is best to remember what comes first. Don’t be tricked by a charming spokesperson with a catchy jingle. An insurance company can’t survive if it pays out more in benefits than it collects in premiums.

Can Insurance Limit my Medical Treatment

Due to the realities discussed above, an insurance company may try to limit your medical treatment. However, they are not in charge of your medical treatment. Your physician is in charge of your treatment plan. You should know that an insurance company cannot prevent you from receiving treatment. Any insurance that attempts to get between you and your treating physician is acting inappropriately.

Insurance Denied Your Claim

Remember that insurance can’t prevent treatment but they can decline to pay for it. The insurance may claim that a particular procedure is not covered by the insurance policy. This can occur with your own insurance as well as a claim submitted to an insurance of an at fault third party. The insurance may argue that the procedure was unnecessary to provide you with the best potential recovery, which often appears in the form of “experimental treatment”.

Options for Pursuing my Denied Insurance Claim

You have several options if the insurance denies your claim. The best results will likely come through the pursuit of a personal injury lawsuit. The second option is to present your case through arbitration or something similar. The least effective way would be to appeal the denial internally through the insurance company. Remember, your priority is to receive reimbursement for your medical treatment. An insurance companies priority is to make money, and they make less money the more they give to you.

If you were injured by someone else’s poor judgment, then it is probably best to pursue a personal injury lawsuit. You may be able to receive compensation from the at fault party and relief some of the burden caused by your injuries. I know many of you don’t like the idea of pursuing a lawsuit, but in reality it is the most peaceful way of resolving disputes and allocating the societal burden of your injuries to the responsible party.  Thank you for reading this article, if you’d like to read more, I suggest reading my latest post on Settlements. 

 

Settlement

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You’ve reached a settlement. The journey that began when someone’s careless actions hurt you,  has finally come to a close. Besides feeling relief, you’re probably wondering what happens next. What is required in a settlement by both the plaintiff and defendant. There’s several steps that occur between the time a case settles and having a check in your hands. Each process is contingent on what kind of settlement is reached. The different types of settlements are primarily based on if the person hurt is an adult, minor, or if it involved the wrongful death of a person.

“A Settlement is an official agreement intended to resolve a dispute or conflict.”

Whenever a case settles, the parties need to sign a release agreement. As part of the settlement, your attorney will send you a Release Agreement to sign. Your attorney will also send another document called a stipulation to dismiss. It’s imperative to put in a timetable for payment in the release. The Release Agreement is a document that specifies the terms between the parties. For example, in exchange for $250,000, you agree to release Mr. Jones from the car accident. Upon receipt of the settlement check, it is deposited in a trust account. Once the settlement funds become available, a check to you for your portion should be delivered.

When a claim involves injuries sustained by someone under the age of 18, the settlement requires court approval. A petition is submitted to the court specifying the terms of the settlement. The petition sets forth the amount agreed to, case expenses and legal fees. It also specifies why the agreement is in the best interests of the child. A Judge will then schedule a hearing where your petition will be presented to the court. This hearing is largely a formality but it is still important to take it seriously. Once the Judge affirms the petition, you will be requested to consent to a Release Arrangement as described above.

In a wrongful death lawsuit, there are usually claims for pain and suffering and wrongful death. Pain and suffering refers to the conscious pain and suffering of the decedent prior to death. Wrongful death refers to the monetary losses sustained by the beneficiaries of the decedent’s estate, such as loss of income, loss of maternal guidance, advice, and burial expenses. The portion of the settlement allocated to wrongful death is divided according to the loss sustained by each beneficiary.

What’s important to remember is that every case is complicated. A settlement is one of the last steps involved in litigation, but it’s definitely not the finish line.