Caution!! What you should know about Public Hospitals vs. Private Hospitals.
A public hospital is one that is run or controlled by state or local government or a public trust, e.g. Norman Regional Hospital, Comanche County Memorial Hospital, or Oklahoma State University Medical Center. These hospitals and their employees including employed physicians are subject to the Oklahoma Governmental Tort Claims Act. This act limits the liability of public hospitals and its employees to $125,000 to $175,000 depending on the population of the county and $200,000 for certain state mental hospitals and university hospitals. In addition, not only are you limited in the amount of money you can recover, but you also have shortened time frame to assert a claim of one year.
Private hospitals generally associated with large healthcare systems e.g. Mercy, SSM, Integris, Alliance, etc. They can also be privately owned surgicenters etc. Private entities are not limited in liability and you have two years from the date you discovered the injury to assert a claim against a private entity.
For example, a father of four minor children is negligently given the medication and dies. In a government/public hospital, recovery is capped significantly and the time frame is shortened to purse the claim. In a private hospital the recovery is not capped and the time frame to pursue the claim is longer. Why would anyone go to a public hospital for care when public/government hospitals do not have to be fully responsible and accountable for their errors.
The Oklahoma Governmental Tort Claims Act starts at Title 51 O.S. 151 and continues: Short Title (oscn.net)
What Is Medical Malpractice?
Medical negligence = medical malpractice = medical error, they are terms for the same thing. Medical malpractice occurs when a health care provider (which can be an individual or an entity) neglects to provide appropriate treatment, omits to take appropriate action, or gives substandard treatment that causes harm, injury or death to a patient.
In legal parlance, it is referred to as “violating the standard of care”. The standard of care is established in a medical malpractice case by the testimony of an expert, meaning a qualified physician in the same field of practice at issue.
Types of medical malpractice include but are not limited to:
- Misdiagnosis or delayed diagnosis
- Unnecessary, incorrect, or improperly performed surgery
- Premature discharge
- Not following up on testing ordered and results
- Failing to order appropriate diagnostic testing
- Failing to treat a patient’s condition or postoperative complication
For more information contact Heather Mitchell Law at 405-594-6800
Do We Need an Autopsy?
If there is any question as to the exact cause of death, then yes. Three things must be proven to have a viable medical negligence case:
- a negligent act or failure to act, that;
- directly causes in its natural and continuous sequence;
- injury or death.
If there is a question at all about the cause of death an autopsy will almost always provide the answer. This is a necessary element in any wrongful death case. If you believe the cause of death was from something a health care provider did or did not do push for an autopsy.
I have seen cases where healthcare providers list generic causes of death such as, cardiopulmonary arrest. But, what caused the cardiopulmonary arrest, an unexpected pulmonary embolism or internal bleeding post-surgery that was not diagnosed?
How do I get an autopsy?
Oklahoma law requires the state medical examiner to perform an autopsy under certain circumstances. These circumstances are specified in Title 63 O.S. 938 https://www.oscn.net/applications/oscn/DeliverDocument.asp?CiteID=99883 .
Deaths that are medically unexpected and that occur in the course of a therapeutic procedure require autopsy.
Even then, the medical examiner will sometimes decline because they believe the cause of death is not in question. If after pushing you can not get the Oklahoma Medical Examiner to perform an autopsy, private autopsies are available and are often done by off duty state medical examiners. Ask the healthcare institution to pay for it. Get the hospital’s management involved and ask that they pay for an autopsy. You can also pay for one yourself. The service is actually called, Private Autopsy Service, their website is: https://www.autopsyok.com/
How Do I Get Medical Records?
Under Oklahoma Law all health care providers must provide a patient with a copy of their medical records. The only exception are certain psychological, psychiatric or substance abuse treatment records. Go the website of the provider or go the Health Information Department at the institution and find their form to request medical records. You will need to sign the form and pay for copying charges.
Charges are fifty-cents ($.50) per page for paper copies or not to exceed $200.00 if transmitted electronically.
If the person has died, medical records can be obtained by a court appointed personal representative, administrator or executor. If none has been appointed, a surviving spouse or responsible family member can obtain the records. A responsible family member is defined as a parent, adult child, adult sibling or other adult relative actively involved in the care or monitoring of the care of the patient as verified by the treating health care providers.
The Oklahoma statute is: https://www.oscn.net/applications/oscn/DeliverDocument.asp?CiteID=439160
How Do I Know If My Doctor Is A Good Doctor?
This is difficult to judge if you are seeing your doctor for the first time. Check to see if your doctor has been disciplined by the Oklahoma Board of Medical Licensure at https://www.okmedicalboard.org/. Go to the Search for a Licensee section and enter the last name.
If your doctor is a D.O. go to the Oklahoma Board of Osteopathic Examiners at https://www.okmedicalboard.org/ and click on the tab at the top, Physician Search.
To check to see if your physician has been sued, go to https://www.oscn.net/dockets/Search.aspx and search by party.
How To Hire A Lawyer: What To Look For, What To Ask.
Medical malpractice cases are complex. They are some of the most difficult cases to prove and pursue which is why you should hire a lawyer with experience and expertise in handling medical negligence/medical malpractice cases. Anyone can advertise on a website. A lawyer may proclaim ownership of a sizable settlement in a case in which they did no work. So, ask your lawyer:
How many medical malpractice cases have you tried, when (make sure they are not relying on decades old verdicts), did you win and how much? This is important to know. Every case needs to be prepared like it is going to trial and the defense knows which lawyers prepare and who can win.
While it is true most cases settle, the reason cases settle for significant money is good case work up. Ask your lawyer, how many depositions have you taken in the last 5 years, meaning actually preparing and questioning the witness not watching others do the work. If the answer is less than 20, do not hire that lawyer as they are not doing the work. It takes expert skill to take a good deposition of a medical provider to get the evidence you need in your case.
If you are unsure, ask to read a deposition they have taken. See if you can understand the case by reading the deposition. Even if you do not know the case, you ought to be able to see the skill of the lawyer in questioning the witness. Are they are getting admissions from the provider as to their role and responsibilities in the patient’s care, or the patient’s injuries and what caused those injuries? Get the whole deposition transcript. Make sure they are not trying to claim another lawyer’s work.
Call around. Ask the lawyer you are interviewing to refer you to other lawyers in the same field i.e. their competitors. Good lawyers are not afraid to provide the names of their competitors and if their competitors respect them, they will tell you. Ask their competitors that if something happened to them would they want the lawyer you are considering to represent their family.