Increase compensation? Do you really think you'll get the full amount due? Without help not a chance!

So who or what is standing in your way? Why might you only get a token sum?

For a start, yourself!

Increase compensation? It is easy to talk about it.

There is no doubt you are a victim: a medical malpractice and negligence case. You know the extent of your injuries and you want full compensation, but the situation is making it difficult for you.

Your own emotions may be in turmoil. Perhaps you have lost someone close to you. In the worst case, you were the family member or relative who gave the informed consent for the treatment or operation. Or he or she just asked your advice and you gave your go-ahead or encouragement. You said everything would be all right.

Perhaps you were injured in an accident. There are going to be permanent problems even though you had a “top” surgeon, and you are depressed. People are tempted to give up by their fear of taking on “top” professionals, because they feel guilty, or because nothing seems to matter any more.

Add to this all the excuses that come tripping off the tongues of everyone in damage-limitation mode, and it is easy for even the strongest person to become discouraged.

- Wrong diagnosis? If you watch House, you know it happens all the time

- Things went wrong? Medical mistakes? Everyone says they did their best, that you did not get the lucky breaks

- Complications? When you agreed to the treatment, you were told there was a small chance of an unfavorable outcome. You took the risk

- Post-op infection? Your immunity system was weakened by the operation

- An adverse side effect of drug? You are one of a tiny percentage who have that reaction

- Post-op death? It was his or her heart or age

There are as many excuses as there are patients who suffer, and they all get thrown at the one person who has to take decisions about what happens next — that is you!

By the time the professionals have finished all their explanations, you are starting to doubt your right to proper compensation. They are playing an emotional game with you, hoping you will give up and go away. They may even play the whinging game: "If you sue me, it's my career that's in jeopardy, our hospital in trouble, my team unable to save other people, etc!"

There is also a problem of perspective. You can get so focused on the one big mistake, you forget all the other problems in the treatments that came your way!

Keeping this real, it is extremely rare for only one thing to go wrong! Either they know about the other medical mistakes and are manipulating the truth to limit their exposure to a claim, or they just have not noticed it themselves!

That is why you need a cool head to look at the evidence on your behalf and tell you whether you have a good case for compensation.

Your family, relatives and friends...!

They are angry and sad so, whatever you complain of, they hold up a magnifying glass and help you see it bigger.

But if you make one problem look bigger than all the others, this creates a “wood for trees” problem. You can be fixed on that problem instead of seeing it in context.

To get the best results, you need to go through the whole story with a calm mind and a fine tooth comb.

You need family and friends for practical help and emotional support.

To get the maximum compensation, you need a calm professional to give advice.

Your doctors

Where everyone works together in a community, every professional knows everyone else. They are colleagues and, sometimes, friends.

If you are relying on an internal investigation, no-one is going to investigate with the energy or passion needed. The investigators may be friends with some of the culprits!

Even if an outside “expert” is called in, people know each other from working together in another hospital or meeting in conferences. More importantly, when looking at the work of a respected senior surgeon, there is a tendency to see only good.

If the expert makes a mistake, the same surgeon currently under investigation may be called on to offer an opinion on the expert’s work. Everyone has an interest in covering up each other’s mistakes when they all work in glass houses.

The organisation or its insurance company

If they can persuade you this is an isolated incident, you might give them the benefit of the doubt.So they talk positively to you, thanking you for bringing the problem to their attention, reassuring you they will fix it so no-one else will ever suffer in the same way.

Some will even say, “Sorry!” while carefully denying any liability. There is some new research in the medical journals that doctors who apologize are less likely to be sued. People are often appeased if professionals express sorrow and regret for the damage they have caused.

Even if victims go on to sue, they will often accept more than one-third less than the usual award of compensation. They do not want to be seen as “punishing” the professionals for an “honest” mistake.

Unfortunately, these medical journals fail to report any reduction in the number of reported incidents of malpractice or negligence.

Claims departments at insurance companies always think they have succeeded if claimants give up or settle for less than they are entitled to. You are just the latest one with a complaint to be massaged out of the way.

Insurers are not interested in how hospitals and clinics behave, so long as everyone continues to make a profit. From their point of view, you are a liability because you decided to complain. If it costs the insurer too much money, it hikes the premiums to maintain its profit margin.

Yet it resists the hospitals and clinics increasing their prices because medical insurance premiums are already increasingly unaffordable to the middle class.

So, the more people complain and get compensation, the more hospitals and clinics will be squeezed and forced to improve standards of care.

The medical experts named by your lawyer

Unfortunately, that is not always possible for a number of reasons:

- Networking among professionals is common. The fact they are supposed to be independent does not stop them from knowing the people accused of malpractice or negligence.

Even if the individuals have not met, they may one day come to work in the same hospital or clinic. This could be highly embarrassing if one has given evidence against the other in a civil trial.

Worse, they may have the same problems in administering the treatment accused of causing the injuries. If one discusses another’s work in the same field, it might expose the same problems in his or her own work.

Experts tend to agree with each other on “best practice” standards to protect each other from liability.

- Medical experts are not attorneys and often do not know or understand exactly what needs to be shown to run a successful compensation case. That means the reports can sometimes be unhelpful even when identifying some problems in the treatment given. It is always better when the experts understand the way in which proper legal arguments are made.

- The process in getting an opinion from an expert is two-stage. You tell your attorney who passes on the medical reports with a series of questions and instructions.

Because the attorney is often spending the firm’s money under a contingent fee agreement, the scope of the request for an investigation is often limited to save on fees. Even if the right questions are asked, the expert may simply answer them and not look outside the box.

That means any other mistakes and faults will go unnoticed and unreported.

- There is also a problem of time. Some medical reports have to be prepared against the clock to meet court deadlines. This can lead to work being superficial.

For the plaintiff, it is always better to get a comprehensive report prepared at leisure so that every possibility can be explored and all problems identified.

Medical experts should always be independent and be able to give perfect reports except they are human, working in social environments where friendships and social networking tend to put pressure on integrity, and professionals habitually cover up their mistakes.

As a result, many reports prepared in the ordinary run of an attorney’s practice are inadequate. A few are even dishonest.

Your attorney

To be able to judge whether a health care professional has failed to reach the required standards of care, the expert needs years of experience offering the same type of treatment in similar environments.

Thus, attorneys are forced to rely on what the medical experts tell them when preparing and presenting the case.

But there is a “chicken and egg” problem because the attorney must commission the expert’s report. Finance and time may be limited so the attorney will usually either ask for a “quick review” or list a number of “obvious” issues to examine.

The more expert the attorney in the practice of medical negligence, the more that experience may influence the attorney’s choices of experts and what they are to look for. They want to go for a quick win to get their fees. They are not necessarily looking out for your interests as the client to find all the possible grounds of negligence and so get the biggest possible award of compensation.

To be fair, some lawyers have medical degrees. They are able to offer a better service because they have more knowledge. Except they may not have much practical experience, or have no experience in the particular specialism.

That means more or less all attorneys use medical experts. It also offers a shield against claims of professional negligence against a lawyer if he or she is reasonably relying on an expert’s report.

Further, to survive in legal practice, the attorneys must be able to maximize their billing revenues. That means no-one has the time to sit down and go through all the medical evidence with a critical eye. It is not an economical use of their time as lawyers.

Their real advantage comes in being able to read the medical reports with genuine understanding. Except, as we have seen, not all medical experts supply reliable reports on medical malpractice and negligence case.

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