Understanding Life Care Plans

One of the primary reasons people bring a personal injury suit is to ensure that the negligent party is held accountable for future medical and other needs that were caused by the injury.  In some cases–especially those involving spinal cord injuries, brain injuries, or other permanent damage– this requires a detailed, specific plan of what those needs will be.  In those cases, one of the tools that I use in preparing cases for trial is a “Life Care Plan.”
According to the International Academy of Life Care Planners, a Life Care Plan is a “dynamic document based upon published standards of practice, comprehensive assessment, data analysis and research, which provides an organized, concise plan for current and future needs with associated costs, for individuals who have experienced catastrophic injury or have chronic health care needs.”
By using qualified life care planners as part of the trial team, we do not leave future medical needs to chance or guesswork.  We provide the jury with a detailed and specific plan and the costs for future needs.  An economist assists by predicting the future costs of those needs after adjusted for inflation.

Some attorneys will be eager to sign up a client who has suffered catastrophic injuries and hope that a jury can correctly guess how much the victim will need for future medical needs.  But if they don’t prepare for trial by using specific life care plans, they put their clients’ future care in jeopardy by leaving it to chance–if they’re able to make the claim at all.

If you have a medical malpractice or personal injury claim resulting in future medical needs that will last a lifetime, you need an attorney that understands the role of life care plans and includes them as part of the trial team.

Adding Insult to Injury: When Doctors Lie to Patients

Last Summer, I wrote about the increasing number of doctors that withhold critical information from their patients, especially when that information involved medical mistakes.

According to a survey published by Health Affairs, things are getting worse, not better.  The study shows that although two-thirds of doctors agree they should share serious medical errors with their patients, at least one-third did not  agree.  Worse, some doctors are not only keeping information from their patients, 1 out of 10 are actually lying about it.

In an interview with ABC News Dr. Lisa Iezzoni, lead study author and professor of medicine at Harvard Medical School, said "We don't know the exact reasons for many of these findings, but it is a sign of caution that patients need to be aware of."

What can a patient do when a trusted medical provider adds insult to injury by committing medical malpractice and then lying about it?

In Utah, this kind of conduct may be the basis for a separate claim called "breach of fiduciary duties."  The Utah Supreme Court has unequivocally held that "Doctors stand in a  fiduciary relationship with their patients."  Daniels v. Gamma West Brachytherapy, LLC, 2009 UT 66, 221 P.3d 256; see also Sorensen v. Barbuto, 2008 UT 8, 177 P.3d 614.

As noted jurist Benjamin Cardozo explained, “Many forms of conduct permissible in a workaday world for those acting at arm's length, are forbidden to those bound by fiduciary ties. A [fiduciary] is held to something stricter than the morals of the market place. Not honesty alone, but the punctilio of an honor the most sensitive, is then the standard of behavior.” Meinhard v. Salmon, 164 N.E. 545, 546 (N.Y. 1928).

And the Utah Supreme Court has held that fiduciaries owe several discrete duties, including duties of loyalty and honesty.  See, e.g., McLaughlin v. Schenck, 220 P.3d 146, 153-56 (Utah 2009); Smith v. Fairfax Realty, Inc., 82 P.3d 1064, 1074 (Utah 2003); Lynch v. MacDonald, 367 P.2d 464, 468 (Utah 1962).

Doctors who commit malpractice and then lie to their patients about it are not only liable for negligence, but for breaching their legal duties as fiduciaries as well.  Perhaps worst of all, they are guilty of violating the trust that their patients have placed in them.

Utah Medical Malpractice: The Thin Line Between Negligence and Crime

Here is an interesting article that discusses the thin line between negligence and crime when it comes to substandard healthcare.  The article focues on Dr. Conrad Murray, the physician accused of manslaughter in the death of entertainer Michael Jackson.  It got me to thinking about a local case that raises a similar issue.  Attorneys for a Utah physician convicted of distributing opiate narcotics to his patients for no legitimate medical purpose have asked the court to dismiss the case based on accusations of prosecutorial misconduct.  You can read the article here.


This case illustrates just how thin the line can be between negligence and criminal conduct.  Not all cases of medical malpractice are crimes, even when they involve narcotics.  As a Utah medical negligence attorney, I have represented many clients in civil cases involving the negligent prescription of narcotic painkillers.  Some of these cases involve separate criminal actions as well which are pursued by local and federal law enforcement agencies.

In these cases, there are a number of hidden pitfalls for unwary patients and inexperienced attorneys.  The negligent physician’s insurance company may try to escape responsibility by denying coverage and forcing injured victims to seek restitution in the parallel criminal proceeding.  At minimum, the negligent doctors’ attorneys will try to delay the civil case for years, pending the outcome of the criminal matter. 

This delay can cause catastrophic results for families who have lost loved ones, face enormous medical bills, and have smaller household incomes.  Prescription drug use causes hundreds of deaths per year, and leave unanswered questions for the families.  If you’re considering a medical malpractice lawsuit, or just want answers, give me a call for a free, no obligation consultation: (801) 424-9088.

The Right Lawyer for the Job

One of my first jobs was working construction with my dad during the summers when I was in high school.  Although he had a general contractor’s license, he really considered himself a finish carpenter–he was always good with details.  He taught me that even though he could probably figure out how to do the various jobs associated with building a home like the concrete work and the drywall, the overall project would be more successful if he let the specialists do their job while he did his.  “If it were my house,” he said, “I wouldn’t want the electrician putting in my plumbing.”

That was the first thing I thought of when I read the recent reports claiming that "Only 1 in 5 medical malpractice cases pay."  The news reports refer to the conclusions from a study published in the New England Journal of Medicine analyzing malpractice risks by area of specialty.  Significantly, the authors found that contrary to popular belief, there are actually very few so-called “frivolous lawsuits” filed against doctors.  One of the study’s lead authors, Professor Amitabh Chandra, even said what I’ve known for years: given the time and expense of prosecuting a malpractice case, “a lawyer would have to be an idiot to take a frivolous case to court.”

So if frivolous lawsuits aren’t really being filed in the first place, then why are so few cases successful?  I can’t help but think that many of those cases were not being filed by the right lawyer for the job.  Just as my dad wouldn’t build a house with an electrician installing the plumbing, people injured by medical negligence should be wary of hiring just any lawyer to handle a medical malpractice case.

I don’t do divorces.  I don’t do bankruptcies.  I don’t practice criminal law.  My practice focuses exclusively on serious personal injury cases, with an emphasis on medical malpractice.  These cases are among the most complicated forms of civil litigation.  The laws are complex, and so is the medicine involved.  You can’t afford to hire a lawyer that isn’t experienced in medical malpractice law with a demonstrated track record of success against the insurance companies and attorneys that defend negligent doctors and hospitals.  If you or a loved one have been injured by medical negligence, make sure you get the right lawyer for the job.  Call Utah medical malpractice lawyer Ryan Springer at 801-424-9088 for a free, no obligation consultation today.  Don’t let your case be one of the many that are won by careless physicians and their insurance companies.

Medical Negligence and Keeping Secrets

Health Leaders Media recently reported that a startlingly high percentage of health care providers fail to disclose their errors due to fears of reprisal or retaliation.

As a medical malpractice lawyer, I’ve never understood why hospitals and health care corporations don’t just admit their mistakes and make the people whole.  They would put my colleagues and me out of business in an instant while drastically reducing malpractice costs, insurance premiums, and other expenses.

It’s almost like it is a big game to these corporations.  They would rather waste hundreds of thousands of dollars covering up mistakes and paying high priced defense lawyers hundreds of dollars an hour for years of litigation than simply admitting a mistake and paying malpractice victims a fair amount for their medical bills, pain, and suffering.

I just don’t get it…

Medical Malpractice and the Differential Diagnosis

One of the most common types of malpractice we see is physicians who miss a critical diagnosis.  Sometimes, this leads to delays in treatment which causes unnecessary pain and suffering and diminishes the chances for full recovery.  Other times, a missed or delayed diagnosis can result in permanent disability or even wrongful death.

In medical school and their residencies, doctors are trained in the "differential diagnosis."  This is a routine diagnostic method whereby a physician formulates a hypothesis as to likely causes of the patient's symptoms.  The doctor then uses his or her medical judgment to eliminate unlikely causes by a deductive process of elimination.

The essential component of the differential diagnosis is the use of reasonable medical judgment.  If a doctor eliminates a possibility simply because a condition is rare, that is not enough.  The judgment must be reasonable, and it must be based on the information available.  This doesn't mean that doctors have to order every possible test to eliminate every possible disease--that's not reasonable (and don't worry--"defensive medicine" is myth).  But where a simple blood test or an inexpensive x-ray can eliminate a potentially fatal condition, it is reasonable to use those tests to reach a diagnosis.  Doctors and physicians are highly trained, and their patients trust them with their lives.

When doctors fail to exercise reasonable judgment and miss a diagnosis, that is medical negligence.  The law protects your rights to recover if you are a victim of malpractice, but you need experienced lawyers who understand the medicine and know the law.  Contact the Utah medical malpractice attorneys at G. Eric Nielson & Associates for a free, no obligation consultation today.

Utah Malpractice Lawyers and Their Clients