Malpractice occurs in all professions. Let us s4′ that you visit your doctor and he refers you to a specialist. When your medical history is taken it may be done inadequately, your x-rays may be improperly read, diagnostic procedures may be incomplete or inaccurate.Complications may be overlooked. The anesthetist may do something harmful or may not take corrective measures. In fact, before the operation or procedure, the doctor may not completely inform you as to what the downside to his or her recommendations might be, or the alternative procedures you should or may consider.Having said all this, remember, when an adverse medical result occurs, this is not in and of itself medical malpractice.
Malpractice occurs when the doctor violates the minimum standard of care criteria in his or her area, causing an untoward result which damages the patient. A physician is not ordinarily liable for errors of judgment. He or she must exercise the same kind of skill and diligence as others in the same line of practice ordinarily possess and ordinarily practice. So said, our courts in the case of Van Steensberg v. Lawrence and Memorial Hospital. In time and experience and in dollars, as well as in emotion, a malpractice suit is the mother of all lawsuits.
The professional has been attacked at the core of his or her existence. Rightly or wrongly, he or she will fight, fight, and fight you some more. By law, an expert doctor is needed before a lawyer may bring a malpractice suit. Why? Because before a sit is brought a lawyer must certify, in writing and filed with the court, that there are grounds to believe that the doctor was negligent in treating the claimant. You will need testimony from a qualified expert witness who can legally express the opinion that:
1. He or she knows the standard of care ordinarily and customarily exercised by doctors in this area; and
2. The defendant doctor’s conduct fell below that standard.
No, you are not done yet. Now you must prove that this violation, the standard of care, has a causal relationship between the injury and the resulting damages.
You may show by using an expert, that the physician fell below the standard of practice and that the patient has been damaged, but this is not enough. Causation must be proved and without it, there is no recovery of damages.
It is my belief that, as an attorney, I am required to vigorously weed out those cases that have no merit. Also, I am required to inform a potential client that yes, there was malpractice and that the damages, although provable, are not of the magnitude that would merit going through the five-year ordeal of bringing suit. How can I say that? Well, let me give you an example.
A doctor misdiagnoses cancer in the breast of a patient. Upon review of all the records, I see that this woman had inoperable cancer months before she went to this doctor. Is this misdiagnosis malpractice? The answer is yes. Would I advise the patient to bring suit? The answer is no! Why? There are no damages. The misdiagnosis was at a point in time when she could not have been saved. The suit is not worth the emotional treasure that the client would be required to expend.
My experience has been that for every ten cases my firm evaluates, more than seventy percent are turned down. The real world of medical malpractice is not what the insurance companies try to portray to the public, or, for that matter, portray to the doctors. After listening to their malpractice insurance companies, doctors are convinced that any bad result ends up with a jury making a substantial award against them in the millions of dollars. It is just is not so! In the last ten years, throughout the United States, there have been only 779 million-dollar verdicts. That averages less than two such verdicts per state per year!!
More people lose malpractice cases than win. The probability of recovery in a medical malpractice case is less than in any other non-vehicular case. This means your chance of a win in a medical malpractice case is less than in any other professional negligence case. I have been told that more lawyers than doctors were sued for malpractice during the last twelve months in the State of Connecticut.
13% of all cases involve vehicular intersect on collisions;
12% involve vehicular rear-end collisions;
11% involve premises liability;
8% involve products liability; and
8% involve medical malpractice.
You will be surprised to learn that 48% of all malpractice verdicts were for less than $100,000 and 71% of all verdicts were for less than $50,000.
Remember that there is a difference between negligent treatment and a negligent diagnosis. It has been my experience that errors of negligent diagnosis are more difficult to convince a jury to award compensation for because they involve errors of judgment. Also, causation is the weak link that is hammered away at by most defense attorneys in every medical malpractice case. The theory being that if there were medical negligence it did not cause the injuries that the patient now suffers from, that those injuries were caused by something else, or those injuries would be there in any event. After all, the patient had medical problems or he or she would not have been at a hospital in the first place.
Remember, we have the “informed consent” rule. Although some attorneys add this to almost every medical malpractice suit, I find that it has a very narrow focus. You must show that the reasonable patient, based upon what medical information was available, would have made a different choice. It is very easy to see in hindsight a patient saying, “I never would have done this,” when the result was not what he or she expected. This becomes what is known as a “swearing contest.” Your client’s word, the former patient of the doctor, against the word of the doctor. If there are no medical records showing there was informed consent, you are down to a swearing contest.
Depositions, which are the statements under oath of the defendant and other witnesses, are very important. They are never more important than in a medical malpractice case because you have a chance to look at the defendant physician as he or she testifies. You can go into the area of his or her expertise and training. You can determine his or her view of what happened. You can go beyond what would be objected to in court on the basis of hearsay and other objections and find out exactly the conversations the doctor engaged in with his or her patient. You can find out what the doctors’ instructions were to other medical personnel. You can find out what he claims to have said to the family members. The most important area of the defendant physician’s deposition is, “In your opinion, doctor, why do we have this result?” The sooner the deposition of the defendant physician is taken, the better off you are.
Why? Because people’s recollections change, fade or become more favorable to their side of the case after they find out what the law requires for an injured patient to have malpractice. Remember that you need your expert. The last place to select an expert is in the back pages of legal or medical publications in which experts are touting themselves. Why? They can come on as a “hired gun,” who spends more time in court to earn a living than practicing medicine. You can lose on that point alone in a medical malpractice case. Therefore, when the potential medical malpractice client comes into the lawyer’s office, it is necessary to get a theory of the case together quickly! It is imperative to have a physician review the records and relate in an unvarnished fashion exactly what is involved. We use physicians who will give us an honest appraisal of the situation before we advise our clients if they should take the next step and bring suit. Once you have a solid case and it is well prepared, you should avoid suing too quickly without sufficient discovery and without understanding both the legal and medical ramifications of the case. Not every poor result by a doctor equates to medical malpractice. But if it does, you are entitled to substantial damages. The time to determine the quality of the medical malpractice case is early on–not on the courthouse steps the day of trial.
The reverence that most people hold for doctors is deserved. Before there is potential for a successful suit, lawyers must be able to prove a number of elements. Then, in order for the jury to decide, another doctor, who is your expert, must testify to the jury’s satisfaction that:
I. What is the standard of care;
2. This doctor violated that standard of care;
3. There is proof that exists that the violation was the cause of the damages; and
4. Practically speaking, the damages must be substantial in nature;
This is why you need to have your case reviewed by someone who has experience in this area in order to properly advise you (a) whether you do have a suit, and if so, (b) is it worth pursuing.