Washington Birth Injury Attorney

Don’t Expect Hospital to Admit to Errors

Video Transcript:

Mike Maxwell: 

Finding the origin or the source of the medical malpractice is oftentimes very difficult because the doctors write the records in such a way as to hide it.

Rob Rosenthal: 

If you have a baby that's born with a birth injury, how do you know if you have a case to sue and how do you get help? Well, that's what we're gonna find out right now. We'll get the answer to those questions and more as we ask the lawyer. Hi again, everybody, I'm Rob Rosenthal with askthelawyers.com. My guest is Washington State Attorney, Mike Maxwell. I wanna remind you right off the top, if you wanna ask Mike questions of your own, it's easy to do, go to askthelawyers.com, click the button at the top that says 'Ask a Lawyer' and it'll walk you right through the process, doesn't cost anything to ask your questions. Mike, good to see you again. Thank you for making some time to answer our questions.

Mike Maxwell: 

Good morning, Rob.

Rob Rosenthal: 

So we're talking about birth injuries. So when a baby's born with a birth injury, is that automatically medical malpractice or maybe sometimes? Help us out there.

Mike Maxwell: 

No. When a baby is born with a birth injury, that does not mean there's automatically medical malpractice. We recently took a case to trial where the evidence came out that 2-3% of all children born in the United States have birth defects or have a defect of some kind.

Rob Rosenthal: 

Okay.

Mike Maxwell: 

It can be very mild from like a cleft palate to very severe, but 2-3% percent of all the children born in the United States have a defect.

Rob Rosenthal: 

So, what are some of the birth injuries that might... And causes that you've seen in your career? What are some of the cases and types of injuries that you've seen?

Mike Maxwell: 

Well, birth injuries... I mean on the other hand, an injury to the child, that's the most vulnerable time in a person's life, is when they're being born. And childbirth has gone from the home to hospitals to prevent bad things from happening but you have overworked hospitals, you have overworked doctors, oftentimes very young and nurses and sometimes they don't pay attention. Even with all the modern technology that we have, some things can go wrong and very wrong.

Rob Rosenthal: 

And how would a parent know? New parents, what should be the most joyful time in their life is they have their baby, how do they know if their birth injury was because of somebody's negligence, because of malpractice? And I assume, would they expect the doctor or the hospital to let them know?

Mike Maxwell: 

So it's very hard. What we find is that the medical records of course, are written by the person who's got an interest in making themselves look good. So the medical records are always written in a self-serving way so that the doctor, the nurse, the whoever, makes themselves look like they did everything right. So even if there's a really bad outcome, horribly damaged or injured child, they make it look like they did everything right. So step one, of course, is for a lawyer to take a painstaking review of the medical records, but that's often not enough. A second step would be to take the records in context of what the patient remembers happening but oftentimes, the patient herself will be under anaesthesia so that's hard to discern. So finding the origin or the source of the medical malpractice is oftentimes very difficult because the doctors write the records in such a way as to hide it.

Rob Rosenthal: 

And I'm assuming new parents would not expect that the hospital would say, "Oh, we're really sorry, somebody messed up and that's why your newborn has the issues they have."

Mike Maxwell: 

Well of course, that rarely really happens. Sometimes the birth is so... The injury is so egregious that they can't cover it up. I mean, it's right there, and those are the cases where you can easily identify the error. But sometimes it's another provider downstream. So the child was being seen by her pediatrician who says, "What happened here? How did this happen?" And the pediatrician might look at the birth records and say, "You've got a real problem here." In the era of modern technology where we have recorded fetal heart monitors and recorded CT scans and everything else, sometimes the evidence is there, you just have to look for it.

Rob Rosenthal: 

Right. What about the injuries themselves? Are birth injuries always obvious right away and, "Okay. Yes, there's something wrong," or sometimes might it take a little while to even show up?

Mike Maxwell: 

Well sometimes, they're obvious right away. We've had cases where children have had seizures from the moment they're born, they're seizing and convulsing as soon as they come out of the vaginal canal and the doctors have to take a life-saving, extraordinary measures to save the child's life. Or sometimes, the children are born blue, they call that cyanotic in medical terms, that the child has been deprived of oxygen and the doctors are doing everything they can to resuscitate the baby. So sometimes, the parents know immediately that their child is in distress and of course, there's nothing worse for the parents to see their child suffering like that. But as you point out, sometimes over time, you get to see that the child has got problems and they're just falling behind their peers and that kind of stuff. In Washington state, a child can bring a medical malpractice case up to three years after her 18th birthday. So these cases can take a long time to develop and sometimes it takes a long time for a pediatric neurologist to even figure out how bad the injury is.

Rob Rosenthal: 

In your experience, Mike, have you seen that maybe some mothers are more susceptible, more often victims of medical malpractice than others? Does it... Have you seen it? I don't know, whether it's socio-economic or different people are more susceptible?

Mike Maxwell: 

This is a really sad story. So many mothers in America are poor, maybe they're poor and of color, or whatever. But because they're poor, their healthcare, it either doesn't exist, or the doctor takes Medicaid or whatever the state Medicaid is. And sometimes the reimbursement rates for the physicians and the hospital are so low that the doctors have to do what they call a retail, making it up in volume, where they have so many patients and so much work, they stack them side by side by side by side by side, and the patients are often overlooked. One of the things in medicine is that the highest pay that the doctor can get is when the doctor performs a procedure, a surgical procedure.

Mike Maxwell: 

So another part of Obstetrics and Gynecology, aside from birth injury that we find, is sometimes doctors are performing unnecessary procedures. We've had cases where a gynecologist has repeatedly taken up the same ovary or other kinds of injuries, where they're just doing everything they can to perform procedures on their patients, trying to justify it in any way that they can in order to get a higher billing rate. Simply because the patient population is poor, and they're trying to make up for it in volume. But at the hospital where these women go, who, as I said, are often very poor, and they have very poor health insurance, these hospitals take on a large volume of patients. And oftentimes the injuries happen simply because you have tired, stressed, over worked staff who are cutting corners.

Rob Rosenthal: 

What does hiring an attorney in these situations do for people? Somebody comes to you and they suspect there was malpractice, they suspect something is just not right, somebody was negligent, what can you do for them? I guess, is it as simple as you are able to level that playing field?

Mike Maxwell: 

Well, when somebody calls us with a complaint that their child was injured during childbirth, sometimes even fatally injured, and the child is dead, the first thing the lawyer has to do is realize that he's talking to parents who are grieving. Grieving the loss if a child died, but also grieving the loss of health if the child survived but has got a bad injury. And so, the lawyer has to realize that these people want more than anything, they want answers. Sometimes they don't even want money, they just want the truth. And sometimes what the lawyer can do is, can look at the records and say to the grieving parents, "I'm sorry here, I'm sorry. But there's no case here. This is just a case of what we call a bad outcome, meaning sometimes bad things happen. But there's no negligence." But oftentimes, if there is negligence, the lawyer and the potential client have to trust each other. Because to develop the case to file the lawsuit, that lawyer's gonna have to spend many, many hours going through the medical records. But more importantly, many thousands of dollars to hire a medical expert to review them.

Mike Maxwell: 

Step one is usually to hire a nurse, usually an obstetric or gynaecological nurse who's familiar with these things. And step two is to order more medical records, than the hospital claims even exist. And I mean the fetal heart monitoring strips and everything else, to take a look at what the heart evidence shows. So by the time the case is filed, the lawyer has already spent more than $10,000, sometimes even more than $20,000 just in reviewing these records. So the lawyer has to be confident that the clients have the stomach to go through with it. That they're telling the truth. The lawyer has to be confident that the child's injuries really are due to medical malpractice. And the clients have to trust the lawyer, that the lawyer will do a good job.

Rob Rosenthal: 

I think it's worth the mentioning here, Mike, is that you've mentioned that oftentimes, these clients are of a lower socio-economic status, and you talked about how expensive it is for the case. I think it's worth explaining to people if they're thinking, "I can't afford to bring a medical malpractice case." How does that work?

Mike Maxwell: 

Yeah, that's a good point. The lawyers that take these cases on are usually, or they should be, the best lawyers of all. There's a saying that any lawyer can pick the low-hanging fruit, meaning represent somebody in a car crash case or rear-ender. But the lawyers who practice these kinds of cases, they have to have a lot of expertise, they have to have access to the best experts, the best gynecologists, obstetricians, and nurses, and they have to have what we would call a war chest, meaning a lot of money to be able to fund the battle all the way to the end. So picking a good lawyer who can do this is really is the key, 'cause not just any lawyer can do it.

Rob Rosenthal: 

That's a great point, but also the person who brings the case doesn't have to be prepared to come out of pocket for all this. Explain how that works.

Mike Maxwell: 

Yes. Well, a lawyer does two things, one is a lawyer takes a contingency fee, which means a percentage of the total recovery goes to the lawyer, and that's the lawyer's profit. But the money that it costs to prosecute the lawsuit, filing the lawsuit, gathering the medical records, paying the experts, that's tens of thousands of dollars. And most good lawyers have enough money, so that they can front those costs, and then at the end of the case, those costs are reimbursed to the lawyer. So at the end of the case, what the lawyer receives is his or her fee, which is a percentage of the outcome, and reimbursement of all those costs that the lawyer expended. Now, the lawyer takes on a risk, of course, if he loses the case or she loses the case, there is no fee. And the money that the lawyer spent, most good lawyers will never ever get that money back, and they know that, or we know that. And that's just a risk or a cost of doing business.

Rob Rosenthal: 

Lots of great information, Mike. Thank you for making some time to help us out and answer the questions. I appreciate it.

Mike Maxwell: 

Thank you, thank you.

Rob Rosenthal: 

That's gonna do it for this episode of Ask The Lawyer. My guest has been Washington State Attorney, Mike Maxwell. I remind you, if you'd like to ask questions of your own, just go to askthelawyers.com, there's a button at the top of the page that says 'Ask a Lawyer' and it doesn't cost you anything to ask your questions. Thanks for watching. I'm Rob Rosenthal with Ask the Lawyers.

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