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Trimming the Fat on the Medical Malpractice Beast

Posted by Andrew J. Barovick | Mar 10, 2010 | 0 Comments

Yesterday, I gave a presentation to a roomful of medical records adminstrators at a conference put on by Lorman .  The topic was Medical Records Law in New York, and I spoke about handling requests for records, via HIPAA-compliant authorizations, subpoenas, and otherwise.

As I prepared for my talk, I thought back to the barely fathomable amounts of time and money that are wasted on the simplest of tasks:  obtaining medical records in the lawsuit context.  Here are the highlights of my rant on the topic:

The Costs of Not Providing a Timely Response When Records Are Requested.

Know what really created the “medical malpractice crisis” in this country?

 Doctors' failure to turn over records when asked!

Watch how this works….

 A plaintff's lawyer requests records.  Many of you, and the doctors you work with, cringe.  You think…”They're suing a Dr.???  They can wait!”

 And so it takes 10 “reminder” letters to your office before the records are sent.  Never mind that the sooner the plaintiff's lawyer gets the records, the sooner he becomes fully educated about the merits of his case, not least because his experts get to review them sooner.  This may cause him to discontinue against the doctor.  It may also bring about an early & reasonable settlement demand.

 This, in turn, may mean less litigation costs for the insurance company, and less heartache for the doctor. 

But the truth is, requesting records when you're defending these cases does not improve your chances of a timely response.  I know. I've been there.

It would take me, when I defended medical malpractice cases,  up to 10 letters also.  Know how much each of those “reminder” letters cost?  Think of it this way.

A defense lawyer bills the doctor's medical malpractice insurance company  for every task he/she does, usually in increments of 6 minutes.

 The more time they bill for a given task, the happier their managing partner becomes. 

The defense lawyer managing the case on a day-to-day basis has to mark his calendar, every month:  “Check on Dr. Smith's records.”

 He'll have to go to the file room, find the file, bring it to his office, locate the medical records section, go through it carefully, making sure, for instance, that Dr. Smith's records did not come to the file under a different name, say, that of his PC, South Shore Spinal Surgeons.

 He'll see it hasn't come in, so now, he has to write a letter, and make a phone call to your office.  And, he'll diary it again for 4 weeks later to see if the 30 minutes worth of time he just charged the insurance company has paid off.  That's about $100 at many firms.

 Now, imagine that the same defense lawyer has 15-20 other medical providers that he needs records from, on the very same case.  It's the same time-sucking, bill-generating process.

And, it just drags things out. How?

 The first big event in the litigation of the case—plaintiff's deposition—can't go forward.  Why?   Under most circumstances, the plaintiff, like any other witness, is presented ONCE for deposition.  No competent defense attorney is going to want to attend plaintiff's deposition without knowing everything possible about plaintiff's past medical history, the care at issue in the case, and the care plaintiff needs now as a result of the alleged negligence.

And of course, dragging out the litigation means more day-to-day litigation expenses for the insurance company bankrolling all of this.

And now, back to today's post…

And so, here is what I recommend to the medical liability insurance companies.  Penalize those of your insureds who fail to provide timely responses to requests for medical records.  Make it a condition of coverage that the healthcare provider sends out a response the FIRST time he/she/it receives a properly formed request.  If that's too harsh, impose financial penalties on the providers for each instance of ignoring a legitimate records request.  Don't rely only on the billing records you get from the partners at the defense law firms.  Actually go to the firms periodically, and leaf through the correspondence files to see how many times the same letter has been written.   Actions such as these will go a long way toward cutting the costs of medical malpractice litigation.

About the Author

Andrew J. Barovick

Mr. Barovick is a graduate of Columbia College and Cardozo School of Law. He began his legal career at the Queens District Attorney’s Office, where he tried over 20 felonies to verdict, and argued an equal number of appeals before the Appellate Division, Second Department, the New York Court of Appeals and the United States Court of Appeals for the Second Circuit.

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REPRESENTATIVE VERDICTS & SETTLEMENTS:

$7.9 million dollars for infant client who suffered severe brain injuries due to post- delivery medical malpractice.

$500,000 wrongful death/medical malpractice settlement on behalf of patient brought to hospital emergency room with serious injuries who suffered complications while unmonitored and died.

$425,000 wrongful death/medical malpractice settlement during trial on behalf of senior hospital patient whose surgeon failed to timely address her worsening symptoms, resulting in her death.

$250,000 to young man whose physician failed to diagnose an impending torsion testicle, causing the loss of the affected testicle.

$200,000 to young mother whose OB/GYN failed to timely diagnose and treat her ectopic pregnancy, resulting in excruciating, long-term pain and the need for surgery to address the ectopic pregnancy once it was diagnosed.

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