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“Going Bare” and Prepaid Defense Funds Don’t Excuse Medical Malpractice

“Going Bare” and Prepaid Defense Funds Don’t Excuse Medical Malpractice


Previously, The Law Resource investigated Medical Malpractice, a far too common and highly preventable tragedy seen in Personal Injury law daily, and provided our readers with specific guidelines necessary to establish that Medical Malpractice occurred. To refresh before proceeding to the legal side of malpractice (“going bare” and legal defense funds, for starters), we’ll first review the following criteria that need be met prior to establishing that “medmal” took place:

1. A doctor-patient relationship must have existed: a the patient must have been seen by a doctor and have established a doctor-patient relationship with the physician in some form, preferably with documentation such as medical records, a documented diagnosis, or chart notes. It should be well understood that if the patient didn’t “like” what they were told by the doctor, and then proceeded to leave the office to avoid receiving a diagnosis they may not have wanted to hear, there is  likely little to no grounds for a lawsuit, as the doctor was attempting to do their due diligence and the patient chose to leave. This is a rare occurrence, and normally does not take place in this manner.

Medical Malpractice does occur when the patient trusts his or her doctor with getting to the bottom of what was wrong with them in enough time to treat it, only to worsen physically while in their care. This could either be due to a diagnosis of the wrong illness, or not being diagnosed at all.

2. A doctor acts negligently: a doctor in a hurry, with a “factory” for a waiting room, is a doctor dangerously close to crossing the line between bare minimum and negligent when it comes to caring for his or her patients. That exhausted doctor with a waiting room full of patients who works long hours does not make the best candidate for understanding patient needs, symptoms, and attending to each patient thoroughly. Negligence often occurs when a doctor attempts to rush through his or her time with patients, thereby missing important details or ignoring the patient’s chief complaint altogether.

Another problem that can arise when a doctor becomes too busy to thoroughly look into a patient’s symptoms is over prescribing of medication that may not have been necessary with the proper evaluation––not enough medication, or the wrong medication also falls into this category.

3. The physician’s carelessness physically and/or bodily harmed the patient: when the physician ignores a patient or skips the smaller details that could’ve lead them to correctly diagnosing a life threatening illness or injury, this again toes the line of negligence and may be grounds for litigation.

Certain questions must be answered to establish whether the physician did in fact act carelessly in a way that caused direct harm to the patient: did the patient’s condition deteriorate as a direct result of the doctor’s actions (or lack of action)? If the answer to this first question is “yes”, there may be grounds for litigation. In a case of misdiagnosis, carelessness plays a large role in the physician’s ignoring of symptoms or failing to pay attention to lab reports, diagnostic imaging, or the patient’s vitals (heart rate, blood pressure, pulse oxygen, etc).

These avoidable errors can lead to the patient being told they’re “fine” only to find out they’re actually suffering life-threatening illness when it’s too late; or they can stricken with a terrifying diagnosis such as MS or Cancer, when that’s not what’s actually ailing them. The latter diagnoses can lead to unnecessary treatment and surgical procedures while the former can lead to disease being left untreated.

What are prepaid defense funds, really?

What, exactly, is a prepaid defense fund? When it comes to doctors who practice medicine outside of a hospital, mainly in private practice or within a smaller office setting, these physicians often utilize a “money saving” tool known as a Prepaid Defense Fund. These funds are exactly as they sound: prepaid legal defense designed to protect the physician in a timely manner should he or she have a lawsuit filed against them by a patient.

For a yearly fee that can range from a few hundred dollars to several thousand dollars or more, legal tasks on behalf of the physician can be completed in the event of medical malpractice. This may sound good in theory, but it doesn’t prevent the doctor from being taken to court if he or she acts in a manner that can be considered negligent, reckless, or harmful to the patient (and results in serious injury as a direct result).

When doctors “go bare” in patient care

“Going bare” is another term for a physician failing to carry medical malpractice insurance. This oft made mistake in healthcare harms patients who have already suffered grave injustice at the hands of negligent physicians. Without medical malpractice insurance, patients can find themselves unable to bring litigation against a doctor who caused them serious physical bodily harm and may have even left them with PTSD, flashbacks, and mental anguish as a result of becoming gravely injured.

The board certified difference

Feeling they have no legal recourse, patients who become injured at the hands of a doctor who acted negligently, breaking their trust and failing to provide adequate care while causing undue harm and mental anguish, may find themselves on the receiving end of a mountain of medical expenses they cannot afford. This is where an experienced attorney may be able to provide appropriate advice and protect the client from further emotional distress.

A patient injured by a physician should never attempt to fight that battle alone–nor should they give up without a proper legal consultation with a trusted, experienced attorney. Whether or not litigation can be brought (and who must it be brought against) can only be determined by a board certified civil trial lawyer who knows what legal proceedings can be brought in the event a physician has “gone bare”.

As always, the Shaked Law Firm stresses the necessity of Board Certified when retaining legal counsel. This Board Certification signifies that the attorney has gone through not only rigorous testing, but has tried and won enough cases to truthfully call themselves experienced. But remember, experience is not the only thing that places a Board Certified lawyer above his or her peers: it’s their moral standing, their ethics, and the trust between themselves and their clients that allow them to make up just 1% of all practicing attorneys today.

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