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Suing a doctor for medical malpractice is extremely difficult, despite the many claims to the contrary. To prevail, even more. Several studies have agreed that only about one in ten cases of serious negligence – and only 1% of all adverse medical events -- ever result in any sort of legal action being initiated. Nevertheless, if you ask the average American about the many problems that plague our healthcare system, they will be quick to point out that malpractice claims are one of the main culprits, and those unjust awards in turn increase our healthcare costs. Answers like Lacy Windham’s compound to the problem. In her answer, made from the physician’s point of view, she mentions the financial impact to the doctor, the stress it causes to the doctor, and blames the issue on injury lawyers that work on a contingency basis. She fails to mention that the vast majority of medical injury attorneys reject the vast majority of cases because the chances of prevailing in court are dim (especially if the victim is old or sick) and don’t justify the hundreds of thousands of dollars that they cost to litigate - especially if the victim dies. She paints the doctor as the victim, suffering from the injustice of being sued, and cries for tort reform, when in fact, “by the recent publication of a major study in the New England Journal of Medicine. A team of five doctors and public health experts found that tort reform measures passed in three states – specifically designed to insulate emergency room doctors from lawsuits -- did nothing to reduce the number of expensive tests and procedures those ER doctors prescribed.This latest study follows numerous others that deflated other tort reform myths: that making it harder for victims to file medical malpractice lawsuits would reduce the number of “frivolous” suits that “clog the courts;" that imposing caps on the damages victims could receive would reign in "out of control" juries that were awarding lottery-size sums to plaintiffs; and that malpractice insurance premiums would fall, thereby reversing a doctor shortage caused by specialists "fleeing the profession." (Source: On Tort Reform, It's Time to Declare Victory and Withdraw)Interestingly enough, on Ms. Windham’s answer, there is no mention of the poor fool whose life is a shadow of his old self because a doctor did not do her job.So going back to the premise of the question, here is my take of why it is so hard to sue -and more importantly, prevail!- in a medical malpractice case. As Ms. Windham said, not every bad outcome is negligence, but that does not mean that an error was not made. In order to prevail in a medical malpractice trial you need to prove several things:That there was an error.That error was a deviation of the standard of careThat particular deviation of the standard of care caused your injuries.And that those injuries merit compensation.Rarely a case of medical malpractice is straightforward. Let me give you some examples:First scenario:Falls in hospital are one of the main causes of injury in a hospital settings. Medicare considers it a “Never happen” event and they consider it a deviation from the standard of care. Therefore, it won’t pay the medical provider for the care of injuries that result from a fall, as a financial penalty to reduce their occurrence (Hospital-Acquired Conditions).So let’s say your retired and active 65-year old mom had a stroke, and in her confusion she falls from the bed and breaks her hip. She gets a hip replacement but during surgery she suffers a complication -a risk expected from surgery-, and she dies.This case will never see the light of court.Since the victim died, in a state that has passed tort reform, the maximum award that the plaintiff can get is $250,000. So no medical malpractice attorney worth its salt will touch it. Not because there is no merit. It is because the cost of prosecuting such a case is staggering: between experts and the discovery process, a medical malpractice lawyer can easily spend close to $100k-$150k of his own money in litigation fees. So let’s do the math for the best case scenario:Award size: $250,000Minus costs of litigation: $100,000 (has to pay no matter if they win or lose)_________________________Net gain: $150,000Minus Attorney fees 33.3% (only recouped if they win): $49,950________________________Victim receives: $100,050.And that if they are lucky!Because the reality is that the attorney knows that if he goes to court, the hospital will claim that the victim was not healthy. That the victim died as a result of the surgery -where she signed a piece of paper where she accepted the risks of surgery- and that surgery was within the standard of care. There will be no mention of the fact that the victim was in surgery as a result of a deviation of the standard of care. The hospital will paint her as frail and old, an inevitable casualty of her bad habits. If you are lucky, you will get a letter saying “We are sorry you are not satisfied with our service” while you try to explain to your children that Nanna is in heaven.Conclusion of this scenario: When a victim is frail, sick or old, and the case results in a fatality, it will be close to impossible to find representation much less to successfully sue because the awards in tort reform states don’t make it feasible for plaintiff’s attorney to incur in this massive financial risk . Even in states that have not passed tort reform, the value of life of someone that does not work (such a stay at home mom or an elderly person) is very small and the awards will be minimal.Second scenario:New technologies are making it into our healthcare system at a staggering pace. Though the FDA regulates the release of such devices, some of them are pulled out of the market due to their risk of complications that may even result in death. Even considering these issues, the Trump administration wants to further weaken these regulations FDA Moves on Trump Plan to Slash Regulations.So let’s say that your wife has uterine fibroids. The doctor advises that instead of a hysterectomy, a morcellator to be used used to keep the uterus, and mentions that even though there are some risks, the advantages outweight the risks. The patient undergoes surgery, and a few months later it she finds out that she has leiomyosarcoma. Not only that, the patient finds out that there has been concerns about the use of morcellators due to their risk of spreading undetected cancer in healthy patients (see Power Morcellators), a risk that could have been prevented if the doctor had done a hysterectomy. She is given Chemo and radiotherapy, and loses her job because she cannot reasonably work. After treatment, she at most, has a three-year life expectancy.The patient tries to sue. No one touches her case because the statute of limitations has elapsed and because there is still research to be made about the safety of such devices, as the data is not yet conclusive Morcellation-Cancer Controversy Still Unresolved. Like the morcellator, plenty of other medical devices are being evaluated due to their side effects and complications (seeDangerous Medical Implants and Devices - Consumer Reports)Conclusion of this scenario: If you are hurt by the use of a new medical device or drug, it may take years, if ever, to get any sort of compensation because the research to evaluate its safety can take easily a decade. Most likely you will die before the research is completed. Your only chance at compensation will be to find a large law firm that does a class-action lawsuit against the manufacturer. It will be impossible to sue the doctor that did the procedure even if he failed to disclose the risks, because he used an FDA approved device and followed the guidelines of the manufacturer. Statute of limitations further limit the window of opportunity during which a patient can sue.Third scenario:Let’s say that you are injured at your job. You are a nurse that was attacked by a patient in withdrawal, and injured your neck, requiring surgery. Since you were bed-bound and the doctor considered you a risk for thrombosis, the started giving you blood thinners to avoid a blood clot, but a mishap at the pharmacy caused them to give you massive amounts of blood thinners. During your surgery, the intubation went wrong. What exactly you don’t know because later you will find that the medical records relating to the intubation are completely gone.You woke up and were barely conscious, but you realized you had massive trouble breathing. Finally, you realize that you are bleeding internally and manage to tell the nurse that it may be the medication. By the time they discontinue the thinners, you have been drowning in your own blood for hours. The damaged caused will require you to go on state disability and eventually, be on a list for a lung transplant. Since your initial injury happened on the job, your health insurance company won’t pay for the medical care, while your worker’s compensation won’t pay either because they claim, rightly, that they are only liable for the neck injury and not the complications caused by the surgery. In the meanwhile, you have no medical coverage nor income and have to live with friends until you finally qualify a compassionate allowance under social security and Medicare because you can barely breathe.Conclusion of this scenario: Conflict between insurance companies, such as worker’s compensation, disability insurers and health care providers severely limits access to medical care after severe medical injury, and makes it even harder for a patient to sue due to subrogation clauses common in these contracts. Also, tampering of medical records is not uncommon, and though it is forbidden by law, it is extremely hard to prove, especially if the patient is dead and their loved ones don’t have a medical power of attorney in place to do a quick collection of these records. Without proper records, it is difficult to prove, beyond a reasonable doubt, that there was a deviation from the standard of care. And even if you find evidence of tampering, most likely the medical board of your state won’t do a damn thing: in California, they close 95% of complaints, and they seal them from the patient and the public, so there is no way to know if they even investigated a violation at all.Last scenario:You were healthy and active, a picture of health. You ran and swan, and never got ill. You are a man on his prime, fond of running and biking.One day, you twisted your ankle after you stepped on a rock. Initially it bothered you a little, but after a couple of days your ankle suddenly swelled and reddened, causing so much pain that you could not even put weight on it. You also felt extremely weak and feverish. Concerned, you went to the doctor and after just glancing at your foot and without doing a full examination, she quickly diagnosed you with having the flu and a sprained ankle. She ordered an x-ray which showed no fracture and sent you on her merry way.Your symptoms did not improve, and concerned, you called the nurse and described symptoms of what they know is severe sepsis: shivering, sleepyness, a fever that did not improve with 1800 mg of ibuprofen a day. They kept telling you it was the flu and to stay home. Since you were getting worse - your arm that was normal is now hurting tremendously after a minor injury, the skin of your foot is inflamed and looks weird - you decided to contact the doctor that examined you initially, and without running any tests, she continues to tell you it was the flu and to stay home. You sent her pictures of your foot which show cellulitis. She ignores them and diagnoses your symptoms as pneumonia. In regards of the arm, she just advises to ice it.Since you cannot stand the pain you go to the emergency room, where thanks to your lucky stars a doctor noticed that something was seriously amiss with you and quickly diagnosed you with septic and toxic shock syndrome. They saved your life, at the cost of all of your limbs. The arm that was hurting was suffering from non-traumatic compartment syndrome and you lost your entire hand. The impact of the infection was so devastating that you will suffer severe nerve damage that will put you in a wheelchair for the rest of your life.You were lucky. Your wife quickly realized that something was amiss. She quickly gathered all communications and collected your medical records, and cataloged everything that happened -photos, conversations and emails. She did so because the outcome was not reasonable: it is not a reasonable outcome for a healthy man in his forties to end up a multiple amputee thanks to a common and easy to treat strep infection while on proper and continuous medical care. But still finding representation was difficult -three major law firms rejected the case, even though they believed that there were several grounds for negligence. But thankfully, one of the best lawyers in the state took your case. The attorneys and the experts quickly realized that you met the entire clinical presentation of having septic arthritis in the ankle joint since the beginning. After it went untreated, it quickly developed into severe sepsis and eventually septic shock, but since the doctors never did a culture of this tissue, your attorneys could not prove it beyond a reasonable doubt.Your wife sued, and she lost, despite there being close to a dozen violations of the standard of care. You see, even though the judge that presided the case suspected that the doctor was negligent - causation was the issue at hand-. Was the infection that caused the paralysis? Is there any study linking amputations and time to get to the ER?. Can we proved beyond a reasonable doubt that the outcome would have been different if he had landed in the ER 10 hours earlier?. Since the complications suffered by you are rare, there is no much data showing the impact of sepsis on morbidity.In any case, a separate investigation by the medical board found that that the treatment you received was below the standard of care. The cost of your medical care is staggering -at about $54,000/year. But yet, you have to fully absorb the cost of someone’s mistakes, while the doctor that harmed you lives in one of the wealthiest neighborhoods of the Bay Area and thanks to some well paid lawyer, managed to close the complaint and the investigation without receiving so much as a fine. She has a perfectly clean record and continues to practice while you need a person at all times because you can barely feed yourself.Conclusion of this scenario: Even if you are a perfect victim: a healthy person with spotless medical records, a clear cause of what happened and severe financial and physical consequences caused by medical negligence, you still can lose your case because the hospital will find tons of experts that will say that what happened to you was unavoidable and that even if you had gotten proper medical care the outcome would have been the same. The chances are far even worse if you are bound by mandatory arbitration. This creates a pool of judges that know that if they rule against a medical provider the chances of presiding on another trial will be zero since the hospital has veto power over the judge presiding any malpractice case. And if you make about $600/hr and make close to $60,000 for two weeks of work you won’t risk ruling against the hand that feeds you. You will find whatever straw you can find to dismiss the case or rule in favor of the defendant (http://www.oia-kaiserarb.com/pdfs/2016-Annual-Report.pdf).For this reason, many law firms will automatically reject any case coming from places such as Kaiser Permanente, where patient claims are bound to mandatory arbitration (see Arbitration Everywhere, Stacking the Deck of Justice) because they know that they will have worse outcomes than in a jury trial, no matter the merits of the case. And if you are not a perfect victim ( let’s say, you had a DUI, you used tested positive for marijuana, you are poorly educated, you had a criminal record) they will assassinate your character- no matter how severe and evident your injuries. They will do their best to discredit you as a crook that wants to go after the poor’s physician’s money.None of these scenarios are hypothetical. They are the stories of real victims of medical errors, all of which I know personally (FDA to weigh risks of potentially cancer-spreading device). The last scenario in particular, speaks to me: I am the wife on that story. My husband is the victim.As you can see, this issue is extremely complex, and prone to propaganda, particularly on the hand of HMO’s and physicians. Doctors in particular, are extremely wary of litigation when the data does not merit it (Afraid of getting sued? A plaintiff attorney offers counsel (but no sympathy)). They blame lawsuits for defensive care, instead of ever reducing examination times. The average doctor spends between 5–10 minutes examining a patient, and to make up for lost examination time, they order a battery of tests to make up for it, no matter how wasteful or unnecessary they are (see America’s Epidemic of Unnecessary Care). Hospitals profits tidily from this waste: after all, they bill the insurance company for every test they make.Is litigation the best venue for resolving issues of medical negligence?, I would say: it isn’t. Because our current system takes long to serve the victims, it is extremely wasteful and only helps a very small fraction of victims of medical errors. A doctor may have committed an error that does not amount to negligence, yet that is little consolation to the person that lost their loved one or has to stop working to take care of them. A no-fault system is a better venue, first, because a doctor may be more willing to admit that he dropped the ball, but to admit that they were negligent, never. Propublica recently released this article that shows how other countries deal with such incidents (How Denmark Dumped Medical Malpractice and Improved Patient Safety — ProPublica), but for that system to ever work in the US there must be far more transparency that there is now on the medical community, particularly since they tend to see the doctor as the real victim of a complaint, and not the patient, no matter how valid the case. And given how they treat their whistle blowers (Doctor Confesses: I Lied To Protect Colleague In Malpractice Suit) , I doubt that they would be willing to testify against a colleague - even in a no-fault system. And unfortunately, medical expert reports are needed in any sort of system to value the merits of a claim.

I had to go through that with my mother a couple of years ago before she died. It’s a hard time, and I wish you luck.Try to find a local organization that provides help for Alzheimer’s or dementia patients. They may have some ideas about how to bring up the subject. Your doctor may be able to help. The Kaiser and Sutter medical organizations have educational and support resources available for those with dementia and their families.If you haven’t already, make sure you have medical and financial power of attorney written up and signed well before your father is legally unable to make decisions himself. If you don’t, your father could get in situations that require the court to step in, as medical workers won’t let people who aren’t declared to have authority to make decisions or sign contracts for care.Depending on how advanced the dementia is, you may be able to nudge him towards a facility, but I recommend you do all the shopping around for him. Get all the contracts ready to go once you are ready, don’t leave it up to your dad.With my mother, I visited several places and found a couple of places that provided multiple levels of care at acceptable price range that we moved my parents into. Mom took time persuading, and was going through good and bad days.After moving, she went through several levels of care over a two year period before she died in hospice set up in the memory care unit.The workers and managers at these facilities are used to meeting with family members and can set up tours and meetings for person needing care. They are usually very good at what they do, including dealing with reluctance. Just make sure you check references and spend some time in the facility to make sure people are secure and things are clean and well-kept.This is a hard time and consumed endless hours of time between my father, my wife, and I. The process of moving is very disorienting and can send dementia patients on a downward spiral. My mother took a while to warm up to the facility and was ok for a while.Unfortunately, she suffered a fall while she was evacuated during a California Wildfire (nobody was at fault, dad was a few feet away, she just topped over while walking across the room and broke 4 ribs.). She was in and out of the hospital for weeks, suffered delirium and subsequently died within a few months.

Two words: mandatory arbitration.When you enroll in a Kaiser plan, there is this little line somewhere in the contract where you agree that any disputes need to be settled in private and mandatory arbitration. Pretty much you are waiving your right to a trial by jury, and in a system where Kaiser has veto power over the judge presiding your case, the chances of a judge earning close to $650/h ruling against Kaiser are dim -because if they do, the chances that Kaiser vetoes them in a future trial increases exponentially.Also, if you live in a state with malpractice caps such as California, the chances of finding representation in the case of a fatality are extremely low. Pursuing a malpractice trial is extremely expensive - and if your damages are capped at $250k, the likelihood of an attorney taking your case even in an evident case are dysmal.Malpractice attorneys have to work on a contingency basis and only make money if they win. Kaiser has the best arrangement possible: a pool of sympathetic judges, a state-cap on awards and an expensive and cumbersome system for a victim to seek justice. Still some people do manage get representation: my husband was one of the lucky ones. We were lucky because we found a great attorney who pushed for a trial and did not force us to settle. We got our day in court. And despite multiple violations in the standard of care, severe medical injuries and multi-million dollar damages, we did not even get an apology from Kaiser, much less a cent.I have written more about these experiences at lenght (see Andrea Pargel's answer to Why is it so hard to sue a doctor for malpratice?, Andrea Pargel's answer to Should I sue the hospital?, Andrea Pargel's answer to What is your experience with misdiagnosis? and my personal favorite Andrea Pargel's answer to What's wrong with the US healthcare system?). It goes without saying that I am sorry you are going through this ordeal. Best of luck!