As we all know, the scope of legal practice is as varied and specialized as anything to be found in the medical field today. There are cardiologists to treat diseases of the heart, neurologists for the brain, orthopedists for the bones; someone for every body part. Similarly, lawyers and legal assistants are restricting their areas of practice to those in which they are most trained and experiencedÑreal estate, criminal, oil and gas, probate and estate planning, commercial litigation; the list goes on. This ability to specialize, recognized now for legal assistants as well as lawyers by the Texas Board of Legal Specialization, helps clients obtain the best possible legal services for their money. However, it can also leave a legal assistant in the dark when a potential client calls the office with a legal problem outside the scope of their normal, day-to-day, office practice. The focus of this article is to assist legal assistants who do not usually come into contact with potential professional negligence claims involving health care providers in understanding more about this type of tort law, how best to recognize a potential claim, and then assist the client and referring attorney in obtaining the specialized legal services they may need.
Most folks do not come into contact with lawyers and legal assistants because a health care professional has harmed them or a loved one. Life, fortunately, is more mundane. Consumers more commonly need a lawyer arising from a divorce, a real estate transaction, a criminal defense matter, or a bankruptcy. Statistically speaking, these are the most common points of entry for people into the legal system. And just like the "family practitioner," the attorneys who handle these point-of-entry legal matters become the client's starting point for obtaining any type of legal service. Clients, as a whole, are not aware of the various areas of legal specialization and, when a concern arises that they need to discuss with someone in the legal profession, they will call their own trusted lawyer's office. What do you do if they are seeking help about a problem with a health care professional?
If this is not the area of law with which you (and your attorney) are most familiar, it is important to these clients that they feel they can obtain some insight into their problems and what can be done about them. Once adequately screened, the potential case can then be referred to someone who specializes in this area of the law. Sometimes, however, there is an underlying problem in their lives arising from a health care provider's negligence of which the client is unaware. Recognizing this issue and then bringing it to the client's attention can assist them in seeking legal counsel in this area.
For example:
A family law attorney is retained to answer a petition for divorce. It comes out during the litigation that the divorce was precipitated by the financial pressures of the wife providing full-time in-home care for a child with cerebral palsy. Could the cerebral palsy be the result of some brain trauma at birth caused by the hospital nurses' and/or obstetrician's negligence? Recognizing this could provide these clients with the opportunity of investigating further and possibly, in the long run, bring financial relief to the family.
Another example:
A man comes into your probate attorney's office to seek legal advice about what to do about his wife's family. She died recently and they are trying to take her clothes, furniture, and the mementos of their marriage away. It is learned that the woman, in her 40's, died suddenly, shortly after a routine surgical procedure. Was there an explanation for her death offered by the doctors? Did they advise against an autopsy? Could her death have been caused by medical malpractice? Is there a need to consult with the client further about this matter in order to allow the widower to seek compensation for himself and additional support for the couple's three minor children now that his wife's income has been lost? Knowing what to look for and the right questions to ask can be of great service to your firm and your clients.
"Medical malpractice" is a broad catch-term for the professional negligence of a health care professional, and can include hospitals and nursing homes responsible for allowing patients to be abused, killed, or injured. Article 4590i V.A.T.S. is the " Medical Liability and Improvement Act" and governs any action against a health care provider, defined (at Sec. 1.03(a)(3) as "Éany person, partnership, professional association, corporation, facility, or institution duly licensed or chartered by the State of Texas to provide health care as a registered nurse, hospital, dentist, podiatrist, pharmacist, or nursing home, or an officer, employee, or agent thereof acting in the course and scope of his employment." The balance of Sec. 1.03 goes on to define several other institutions governed by 4590I V.A.T.S., including "hospital," "medical care," and "physician." However, the gist of against whom and for what a person a can make a claim of negligence is in the section cited above. If the person or facility holds a professional license, chances are that 4590i applies.
Similar to other types of tort cases, the professional negligence of a health care provider breaks down into the following broad areas:
There must be professional relationship at the time of the occurrence, giving rise to a professional duty toward the patient in question. For example: there was a physician-patient relationship established between the emergency room doctor and a man having a heart attack. The patient sought medical care, and the doctor undertook to diagnose and treat the man. If the doctor never agreed to see the patient or come to the hospital, there may be no relationship.
The professional relationship gives rise to a duty for the health care professional to act in conformity with the applicable standards of care in any given situation. That is, they must act as a reasonable and prudent health care provider (of whatever discipline) would act under the same or similar circumstances. This is known as the standard of care, and is the cornerstone of any case prosecuted pursuant to 4590i.
This breaching of the applicable standards of care is defined as negligence, which must be the producing or proximate cause of some injury to the patient for any case to arise.
To illustrate, my favorite example is this one: A woman is admitted to the hospital for an infection in her leg. The nurses undertake her nursing care, executing the doctor's admission orders. (This establishes a nurse-patient and physician-patient relationship, giving rise to the duty for these licensed professionals to act in accordance with the relevant standards of care applicable to nurses and a doctor caring for similar patients.) Despite notes and warnings in the woman's chart that she is allergic to tetracycline (an antibiotic), the doctor writes an order for the woman to receive tetracycline, which is subsequently filled by the hospital's pharmacist and sent to the floor for the nurses to administer. (The doctor has breached the standard of care by not checking the woman's drug allergies before writing the prescription; he is, therefore, negligent.) The nurse then fails to check the woman's chart, or her wrist bands, for drug allergies and gives her the tetracycline. (The nurse has breached the standard of care by not checking the woman's chart and wrist bands for drug allergies before giving the tetracycline; he is, therefore, negligent.) The scenario now forks and demonstrates whether or not a viable claim under 4590i can or should be made:
Scenario 1: The woman, who just received a large dose of tetracycline despite numerous warnings, has a terrible allergic reaction (called anaphylaxis), goes into shock, suffers a respiratory and then cardiac arrest, and ultimately dies. (The negligence is the proximate cause of her injury and death). The husband is devastated and, when he questions the doctor about how his wife could have died from a simple leg infection, he is put off with vague answers. He calls his business attorney for advice. This is a viable health care liability claim and should be referred to a specialist immediately.
Scenario 2: The woman, oblivious to the tetracycline being given in her intravenous solution, heals slowly over several days, receives physical therapy for her leg, and is discharged home in good condition, accompanied by her loving husband. Several weeks later she receives the itemized bill from the hospital and, like any good consumer, goes through it with a fine-toothed comb, looking for overcharges. Suddenly, she discovers hundreds of dollars in pharmacy charges for "tetracycline I.V." and calls the doctor's office, completely appalled at this error. The doctor's office confirms that she had, indeed, been cured by the administration of tetracycline in the hospital. Still upset, she calls her lawyer because she wants something done about this horrible mistake. This is not a viable health care liability claim, as the medication error was not the proximate cause of any injury to the woman. Unless a causal connection can be made between the act or acts of negligence and some physical injury to the patient, there is no viable basis for a health care liability claim. "A difference that makes no difference, is no difference."
The legal assistant interacting with this type of client should realize what an emotionally-charged issue professional negligence is to the injured person and/or the survivors in a death case. Most people seeking assistance in this area of the law are confused, hurt, angry, and upset. Their trust in one of the most highly regarded institutions in this country has been betrayed; they trusted that the doctor or nurse was doing everything possible to help them or their loved one. If you are the one approached by the client with a complaint about a health care provider, chances are they have been told (however obliquely) by someone to seek a professional opinion or feel in their heart that something is very wrong. Triggers are: doctors who won't return phone calls, comments made by nursing or other support staff after an incident occurs, or even reading about a similar incident reported in the newspaper. In our office, the telephone has rung constantly in the days after certain exposŽ television shows about bad health care.
A legal assistant confronted with a client who has questions about their doctor's care, a problem at the hospital with their child, or concerns about the care an elder is receiving in a nursing home needs to ask certain questions of the client so that an adequate "intake" and evaluation of the matter can be done. What are the best questions to ask? Who is the injured party? Does your client have legal standing to assist with an investigation or claim? If not, who does? Who may be the responsible party? Is it a doctor, hospital, nursing home, pharmacist? Is it a "health care provider" as defined by 4590i V.A.T.S.? When did the negligence occur? Without going into the specifics of the statutes and the multiple cases defining when the statute of limitations runs on a health care liability claim, for whom, and under what circumstances, a general rule to keep in mind is that, for an adult, there is a two (2) year statute of limitations from the date of incident or tort, just like most tort cases. For a person injured as a minor, their statute runs two (2) years after they reach the age of majority or their twentieth birthday. Don't guess on this issue, get specialized advice. Where did the negligence occur? Venue is very important to consider when referring these cases. What happened? Getting a good chronology of the incident and the facts serves two purposes: one, the client needs someone to listen to his story. Chances are they have gotten the cold shoulder from the health care providers involved and sharing the story helps them work through their injury and/or loss. Two, the recitation of facts helps in the referral process. Write everything down, even medical terms that may make no sense to you. In this way, when the time to refer comes, the attorney (with your help) can give the potential referral lawyer the information necessary to make decisions regarding how to proceed and whether the potential case meets that office's intake criteria. What are the damages and, most importantly, are they permanent? Professional negligence cases are very expensive to litigate and are usually handled on a "contingency fee" basis, so damages are an integral part of case evaluation. Has any subsequent treating health care provider criticized the potential defendant or given the client grounds for negligence? This can be of tremendous assistance inasmuch as the standard of care, it's breach, and the proximate cause of the breach to the injury, can only be established by expert testimony.
The major caveat to all this material is I would never venture to presume anything about a client inquiring into a case against a police department for "excessive use of force. Instead, I would know this was out of my area of expertise and take really good notes during our conversation, assure the client that my attorney supervisor would look into it for them, and then work with my lawyer to get the client referred to someone who does civil rights law. Most legal assistants don't need to venture too deeply into professional negligence to help their clients and their attorneys obtain legal help in this area. But do be aware of, and sympathetic to, the impact of a health care professional's negligence on a client's life, even if they do not see it themselves in the midst of their other concerns. We have a duty to our clients to do our best for them. They trusted one professional with their own life and health (or that of a loved one) and, when that trust was betrayed, they turned to another professional for help. Let's live up to that trust as best we can.
Glenda Konopka, R.N. is a Board Certified Legal Assistant in Personal Injury Trial Law, Texas Board of Legal Specialization, who works with Ryan Krebs, M.D., J.D. in Austin, Texas.