Unusual Legal Strategy Could Be Game Changer in Medical Malpractice Suits

by | Oct 11, 2018 | Medical Malpractice

usa-2018855_640.jpgMedical malpractice cases may involve elements of fraud which allows injured patients or their surviving family members to pursue claims based on fraud and not medical malpractice alone. This makes it possible for individuals to pursue claims for punitive damages which are not allowed under Illinois medical malpractice statutes.

The Size of the Problem

Healthcare fraud is a considerable problem that is estimated to cost consumers tens of billions of dollars per year in increased premiums and associated medical expenses. At the low end, estimates place the annual cost of healthcare fraud at more than $68 billion. At the high end, it may be as much as $230 billion which is roughly 10% of the nation’s healthcare expenditures. The reality is that no one is really sure how much is being lost and whether it’s physicians who are responsible for the greater share of fraudulent activity.  

Fraud in the Physician’s Office

There are numerous types of fraudulent activity that can occur within a physician’s office. These include billing for services that were not rendered, billing for unapproved services, misrepresenting dates or locations of service, misrepresenting services that were provided, incorrect reporting of diagnosis, incorrect reporting of procedures, and prescription of unnecessary medication.

Fraud commonly occurs either before or after a medical procedure is performed. For instance, claiming a patient has a cancerous tumor or life-threatening condition when test results and other examinations point to a more innocuous problem. The patient, fearing for their life, agrees to extensive medical treatments that are entirely unnecessary. 

Typical fraudulent activity that occurs after treatment is performed includes misrepresentation of facts designed to deliberately conceal the negligent activities of the physician. For example, conducting a wrong-site surgery and later claiming that a second surgery is required to remove remaining pieces of tumor or internal damage that was discovered during the first surgical procedure.

The Potential for Fraud

Everyone is at risk to become a victim of fraud while under a physician’s care regardless of age, health, or financial status. However, certain patients are at increased risk. Patients with diminished mental faculties and those who are unconscious at the time procedures are performed are easy to take advantage of. Patients whose healthcare is overseen by a guardian, non-native language speakers, and others with limited communication ability are also easy to take advantage of.

Because the potential for fraud is ever present, it is essential for patients and their caregivers to closely scrutinize healthcare records and secure second opinions prior to the commencement of any medical procedure. When fraud is suspected, a Chicago medical malpractice lawyer can review the individual’s health records to determine whether fraudulent activity has occurred.

Breaking the Code of Silence

Doctors are beginning to speak up against medical fraud and the untoward actions of their colleagues within the medical profession. While doctors have an existing duty to disclose their own errors to patients, physicians have traditionally been leery about disclosing the errors made by their peers

Fear of retribution and threats of libel suits have kept many physicians silent for far too long. However, the ice is beginning to melt and an increasing number of physicians are openly cautioning patients about the services offered by other physicians. Reasons for this include changes to whistleblower laws that make it easier for physicians to speak up without fear of retribution from their peers. 

That same thaw is also making it possible for physicians to admit their own mistakes and open up lines of communication with clients after errors take place.   This increased openness is not happening at a rapid pace, but it is starting to become more common. One reason for it is that openness makes it possible to analyze and correct safety events so that they are not repeated.  

Documenting Healthcare Fraud

Patients or caregivers should keep copies of medical records, records of communications including phone calls, letters, and emails. These records should always include receipts for expenses stemming from appointments, procedures, and prescription medications. These records should be closely monitored for discrepancies.

When discrepancies are discovered or fraud is suspected, and the physician is questioned about them, patients or their caregivers should record and note the response they receive. Collectively, these records can establish the presence of fraud and the physician’s attempts at covering the fraud up. When an individual files claims based on fraud, the statutes allow them to pursue compensation for non-economic damages and punitive damages that are not covered under a medical malpractice suit. This makes it possible for individuals to receive the compensation they deserve following the untoward actions of an unscrupulous physician.   

Criminal Penalties

Most states have statutes that make health care fraud a felony offense. In addition to civil penalties, physicians found guilty of engaging in fraudulent activities can face imprisonment, fines, and loss of their license. 

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