C O N T E N T S
I N T R O D U C T I O N
13C H A P T E R 1
How To Know – Really Know – If You Have A Winnable
Malpractice Case
A Six Critical Questions You Must Answer Correctly 23
B Summary of What Makes a Good Malpractice Case 34
C How Lousy Malpractice Cases Get Thrown Out of Court 34
D The Standard of Care Discovered and Illustrated – Case of Sleep Apnea 36
E How To Get Your Hands Around Your Malpractice Case 38
F Your Case Must Have a Strong “Theme” 39
G Do You Have a “Slam Dunk” Malpractice Case? 42
H What To Do If Your Doctor Says He Made a Mistake and He’s Sorry 47
I What To Do If You Find Out Your Doctor Has Been Sued Previously 48
J Should You “Check Out” Your Doctor’s Record Before Agreeing To
Treatment? 48
K Were You Injured by a Defective Medical Device? 49
C H A P T E R 2
Don’t Even Think About Hiring a Lawyer Until You Have Done This
A Why Did This Happen to Me? 59
B Doctors Give Reasons in They Won’t Explain Earlier 59
C Before You Decide to File a Malpractice Suit, Do This 60
D Gather and Read Your Medical Records 60
E Does Oklahoma Have the Worst Doctors in America? 65
C H A P T E R 3
The Secret – But Obvious – Ingredient in Million Dollar Verdicts
A Anger Motivates Jurors, Not Sympathy 69
B The Four Questions Jurors Ask, but Don’t Realize They Are Asking 74
C How Doctors “Win” Baseless Suits – But Still Lose 76
C H A P T E R 4
The Really Secret Ingredient to Winning Your Malpractice Case
A The Rules of Modern Litigation: No Surprise Witnesses! 79
B You Won’t Be Able to Get Your Hands on Really Damning Evidence 80
C You Will Never Know the Doctor’s Excuses Unless You Ask 81
C H A P T E R 5
Wait a Minute, But Not Too Long, to File Your Malpractice Suit
A What Is a Statute of Limitations? 95
C H A P T E R 6
Why Doctors Lie and How to Overcome Cover-ups
and Phony Excuses
A Lying, Lying Everywhere 103
B Why Doctors Tell Lies – “They Can’t Help It!” 104
C How Doctors Tell Lies and Expect Others to Lie for Them 108
D How Doctors Lie with Statistics 109
E A Rare Case of Catching a Defense Expert Lying 111
F The Jury Won’t Suspect Your Doctor is Lying 111
G The Best Way to Make a Doctor Tell the Truth 112
H Two Common Lies Doctors Tell in Malpractice Cases 113
I “Frivolous” Malpractice Cases: The Big Lie 114
J Dr. Brennan’s Famous Study of Insurance Giveaways in Defensible Cases 119
K The Baby Who Was Dropped on His Head at The Moment of Birth 121
L Is It Malpractice to Drop a Newborn on the Floor? 122
M How Defective Medical Malpractice Studies Take on a Life
of Their Own 124
N Why There Will Always Be a Malpractice “Crisis” 126
O The Never-Ending “Crisis”: How Doctors Create the Perfect Storm 127
C H A P T E R 7
Twenty Medical Malpractice Cases Not to File. Usually
A Ureter or Bladder Injury During a Hysterectomy 133
B Major Infection Following Abortion 134
C Failure to Diagnose Cancer of a Vital Organ 135
D Orthopedic Cases Involving Multiple Back Surgeries 136
E Malpractice in Failure to Diagnose a Broken Bone
or Lesser Problem in a Trauma Victim 136
F Dental Cases Involving Only Loss of a Tooth 137
G Cases Where the Only Malpractice Was the Doctor’s Failure to Get
Informed Consent 138
H The Doctor Gives the Patient So Much Pain Medication the Patient
Becomes Addicted 140
I The Doctor Has a Sexual Relationship with the Patient 141
J Staph Infections Following Major Surgery 141
K Unnecessary Surgery Where There Was Some Evidence to Support It 142
L Improper Care of Jail or Prison Inmates 143
M Death of a Fetus at Less Than Twenty-four Weeks Gestation 144
N Failed Tubal Ligation or Vasectomy Resulted in the Birth of a
Extremities 145
P Failed Cataract Surgery 146
Q False Reports of Child Abuse 146
R Injuries from Contaminated Blood 147
S Failure to Remove All Ovarian Tissue in a Salpingo-oophorectomy 147
T Unsatisfactory Results in Elective Plastic Surgery 148
C H A P T E R 8
How Much Does It Cost to Win a Malpractice Lawsuit
and What Are My Chances of Winning?
A Yes, The Real Problem You Face Is Money 151
B The Real Reason for Contingency Fees 154
C More Experts Needed for Complicated Cases 155
D What to Do if Your Lawyer Asks You to Give Him $10,000 Right Now 156
E Do You Really Think You Can Win a Malpractice Case Alone? 157
F Speak Truly: What Are My Chances of Winning? 157
G Comparable Cases: “What’s a Laska Report?” 158
H What Is the Average Medical Malpractice Verdict? 159
I Why Jury Verdicts Are Higher in New York 160
C H A P T E R 9
Tricks Malpractice Insurance Company Lawyers Pull
A The Two Goals of Malpractice Insurance Company Lawyers 163
B These Guys Are Not Dumb 164
C The Defense Lawyer’s Semi-Secret Weapon 164
D Dirty Tricks and More on the Way 165
E Is Giving Expert Testimony Considered the Practice of Medicine? 169
F How to Avoid Expert Witnesses Who Have Dirt on Them 170
C H A P T E R 1 0
Things Everybody “Knows” About Malpractice
But Are Simply Wrong
A The Myth of Rising Medical Malpractice Verdicts 173
B What Is Keeping the Myth Alive? 174
C Other Factors Supporting the Myth 175
D Other Explanations for the Myth 175
E Insurance Company Data Is Self-Serving
and Withheld from Researchers 182
F How to Find Some Reliable Data about Medical Malpractice 183
G Final Facts and Fallacies about Medical Negligence 189
H The Fate of “Lottery” or “Jackpot” Verdicts 190
C H A P T E R 1 1
What Is Dr. Defense Doing in My Case? He Has Never Seen Me!
A Hello, Dr. Defense! 199
B What to Expect from Dr. Defense 200
C When You Should Really Fear Dr. Defense 202
C H A P T E R 1 2
How to Find a Really Good Medical Malpractice Lawyer
A Why Using Google to Find a Malpractice Lawyer Is A Bad Idea 207
B Is There Anyone Who Can Tell Me the Name of a Good
Malpractice Specialist? 208
C Consult a Jury Verdict Reporter 208
D What Kind of “Credentials” Should the Lawyer Have? 209
E Malpractice Lawyers To Avoid 210
F How to Avoid Being Scammed by Your Malpractice Lawyer 212
G How to Negotiate Your Lawyer’s Fee 213
C H A P T E R 1 3
How to Help Your Lawyer Win Your Case Without
Getting in the Way
A Help Your Lawyer Find Qualified Expert Witnesses 225
B Secret Weapons to Use in Malpractice Cases 225
C The Best Place to Find Experts 226
D A Dirty Little Secret about Doctors 226
E The Rosetta Stone(s) of Medical Malpractice: Rule 26 Reports 228
F How to Use the Internet to Help Yourself and Your Lawyer 230
G Some Detailed Help with Internet Searching 230
H Women Are More Likely to Be Injured by Malpractice than Men 240
I Here’s an Example of a Quick Internet Search 241
J Use The Internet To Contact Disease Advocacy Groups 241
K Use The Internet To Find Out about Dr. Defense 242
L How You Can Make Money on the Medical Malpractice “Crisis” 243
C H A P T E R 1 4
What Trial Lawyers Are Doing Now To Win Million Dollar Verdicts
A Changes in Tactics Are Called a Paradigm Shift or “Tip” 245
B Some Final Thoughts About Million Dollar Cases 263
C H A P T E R 1 5
The Dirty Dozen: The Top 12 Common Malpractice Cases
1 Failure to Diagnose Breast Cancer 269
2 Failure to Perform a Timely Cesarean Section 273
5 Failure to Diagnose Bacterial Meningitis 275
6 Failure to Diagnose Ectopic Pregnancy 275
7 Failure to Diagnose a Fracture or Improper Fracture Care 275
8 Nerve Injury from Tooth Extraction 275
9 Failure to Diagnose Cancer on X-Ray or Pathology Specimen 276
10 Patient Falls from Bed (Lack of Rails) or Falls in the Bathroom 276
11 Injury to Nerves or Blood Vessels in Back Surgery 276
12 Failure to Diagnose Appendicitis 277
13 Injury to the Sciatic Nerve from Injection 277
14 LASIK Surgery Problems 278
15 Bariatric Surgery Complications 278
16 Nerve Injury During Surgery Due to Positioning 279
17 Failure to Prevent and Treat Pressure Sores in Nursing Home Patients 280
C H A P T E R 1 6
Birth-Injured Babies – Medical Dynamite
A No Juror Sympathy for Birth-Injured Children or Their Parents 287
B The Major Types of Birth-Injury Cases 287
C What Are the Chances of Winning a Birth-Injury Case? 288
D Vacuum-Assisted Extraction 289
E No, Monetary Recoveries Are Not Rising Everywhere 290
F What You Must Do if You Have a Birth-Injury Case 291
G Battle of the Doctors Over Birth Injuries 291
H “Nothing Was Done Wrong in This Case” 292
I Doctors Protect Themselves with So-Called Consensus Documents 293
J You Must Gather All Recent Medical Literature and Read It 293
K Doctors: “Electronic Fetal Monitoring Is Useless” 294
L What Doctors Insist Really Caused the Baby’s Injury 295
M Some Final Thoughts on Birth-Injured Babies 297
C O N C L U S I O N
301A P P E N D I X A
Twenty-Five Million-Dollar Medical Malpractice Cases 303
