Who is responsible for the deductible due to malpractice?

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Who is responsible for the deductible due to malpractice?

My daughter broke her arm. We took her to the ER and they put her under and set it. That night she complained of the pain; we kept it up all the next day. We then called the doctor and talked to him; the hand was 3 times the size of the other one and he told us to get back to the ER because the cast was to tight. We took her back; they got us right in and the cast was to tight they put on another split cast. A few days later, we took her to the DOC and he had to reset it in the office because it wasn’t lined up correctly without being put under. So the ER room got paid twice by my insurance company and they want me to pay my deductable.

Asked on October 9, 2012 under Malpractice Law, Illinois


Catherine Blackburn / Blackburn Law Firm

Answered 11 years ago | Contributor

Unfortunately, hospital bills are not linked to the quality of care provided.  Poor care does not result in a lower bill.

A malpractice case, if any, would be entirely separate from the amount of the bill. It may or may not be malpractice to apply a cast too tightly.  Whether this is malpractice depends on whether an expert in emergency medicine would testify that the average emergency physician would have applied the cast differently.  More importantly, however, the amount of money recovered in a malpractice case would have to be enough to cover attorney's fees (at least 40% of the recovery), costs of litigation (probably $25,000 - $50,000 minimum), repayment of insurance (yes, almost all insurance companies get repaid from any settlement or judgment), and then provide sufficient money to you and your daughter to make it worth your while to bring the case.  In this case, if your daughter recovers without a significant and permanent injury, it will not be worth the cost, time, and effort.

Regardless of everything I just said, it is important to understand that hospitals and doctors can and do negotiate their bills.  If you have insurance (and it sounds like you do), your insurance company pre-negotiated a rate with the hospital.  It pre-negotiated a co-payment and/or deductible with you.  Nonetheless, the hospital and/or emergency medicine company (the doctors are probably separate from the hospital) can negotiate their bills.

I suggest that you call the patient advocate for the hospital and discuss this situation.  If the hospital does not have a patient advocate, call the administration for the hospital.  Speak to the highest level person who will talk to you - if that is the chief executive or administrator for the hospital, then speak to him or her.  Explain what happened and ask that they "write off" the amount of the bill equal to your deductible.

Whatever you do about this, I strongly suggest that you wait until your daughter's arm is healed before negotiating with the hospital or ER company.  The hospital will probably want a release of liability in exchange for writing off the bill. If your daughter ends up with a permanent injury (such as a nerve injury or malformation), you will not want to release the hospital and doctor from liability.  If your daughter has a permanent injury, you should speak with a medical malpractice lawyer in your state.  Permanent injuries are often serious enough to justify the cost, time, and effort of prosecuting a malpractice case.

Good luck.

IMPORTANT NOTICE: The Answer(s) provided above are for general information only. The attorney providing the answer was not serving as the attorney for the person submitting the question or in any attorney-client relationship with such person. Laws may vary from state to state, and sometimes change. Tiny variations in the facts, or a fact not set forth in a question, often can change a legal outcome or an attorney's conclusion. Although AttorneyPages.com has verified the attorney was admitted to practice law in at least one jurisdiction, he or she may not be authorized to practice law in the jurisdiction referred to in the question, nor is he or she necessarily experienced in the area of the law involved. Unlike the information in the Answer(s) above, upon which you should NOT rely, for personal advice you can rely upon we suggest you retain an attorney to represent you.

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