This article describes the following stages of a medical malpractice case: consultation with an attorney, investigation, tribunal, discovery, settlement and trial.
Failing to evaluate a patient's medical history to identify possible complications. Failing to tell the patient critical preoperative instructions, such as not eating or drinking before the procedure. Administering too much anesthesia. Improperly placing the breathing tube.
CausationIn Medical Malpractice, “Causation” is Often the Most Difficult Element to Prove. Stated simply, medical malpractice, or medical negligence, is medical care or treatment that falls below the accepted standard of care and causes actual harm to a patient.
Recognizing that you are an imperfect human being who will make mistakes, you can nevertheless reduce your risk of causing harm, and of being sued successfully. Start by practicing good risk management, building on the old adage of four Cs: compassion, communication, competence and charting.
According to their findings, physicians win 80% to 90% of jury trials with weak evidence of medical negligence, approximately 70% of borderline cases, and 50% of cases with strong evidence of medical negligence.
1: $216.8 Million for Justice A jury awarded Allan Navarro $216.7 million following his medical malpractice case against the Tampa University Community Hospital. They pursued the case after doctors misdiagnosed stroke symptoms for a headache.
The four elements of malpractice are: Existence of a legal duty. Breach of that duty. Causal connection between the breach and injury.
One of the most common reasons for filing a medical malpractice lawsuit is diagnostic errors such as misdiagnosis and delayed diagnosis.
What Are the Most Common Medical Malpractice Claims?Misdiagnosis or delayed diagnosis.Failure to treat.Prescription drug errors.Surgical or procedural errors.Childbirth injuries.
It is authoritatively shown that around 10 to 11 % of hospital admissions each year end in an 'adverse outcome' due to a medical incident.
Medical malpractice is when a healthcare professional is aware of the possible consequences before making a mistake that led to an injury. Medical negligence is when a healthcare professional makes an honest mistake that leads to an injury.
Medical negligence is substandard care that's been provided by a medical professional to a patient, which has directly caused injury or caused an existing condition to get worse. There's a number of ways that medical negligence can happen such as misdiagnosis, incorrect treatment or surgical mistakes.
The top five reasons for malpractice suits were:Failure to diagnose a patient's medical condition. ... A patient injury during treatment, often resulting in disability or death. ... Failure to treat a patient's condition. ... Poor documentation. ... Medication errors.
Misreading or ignoring laboratory results, Premature discharge from a hospital, Prescribing improper medication or dosage, or. Failing to account for a patient's health history.
One of the most common reasons for filing a medical malpractice lawsuit is diagnostic errors such as misdiagnosis and delayed diagnosis.
What Are the Most Common Medical Malpractice Claims?Misdiagnosis or delayed diagnosis.Failure to treat.Prescription drug errors.Surgical or procedural errors.Childbirth injuries.
The next step in the medical malpractice lawsuit is the process known as discovery. Discovery allows each side to learn about their opponent's case prior to trial. We will send written interrogatories or questions to the defendant. The defendant is required to provide answers which will give us information about what the defendant says happened in your case as well. We also will request any written documents or other evidence that may be relevant to proving your malpractice case. You can expect that the defendants in your case will also send written interrogatories and request documents of you as part of the discovery process.
Therefore, you must go into your case with the understanding that twelve strangers on a jury may end up deciding your case's fate. Secondly, medical malpractice cases take years to resolve. You need to prepare yourself for an experience that at times can appear to move at glacial speed.
A medical malpractice lawsuit begins with you, the plaintiff, filing a Complaint in court. A Complaint is a legal document which sets out what happened to you as a result of a care provider's negligence. It claims that you are legally entitled to receive damages for those injuries caused by the negligence. Your spouse and children also may have claims against the care provider as a result of your injuries. A deputy sheriff serves the Complaint on the defendant, care provider. The service of the Complaint initiates the care provider's obligation to defend the lawsuit by filing an Answer to it. In the Answer, the defendant care provider will respond to the medical malpractice claims in the Complaint and assert any legal defenses that may be available. After the defendant's answer is filed, the Court schedules a Medical Malpractice Tribunal to evaluate the legal sufficiency of the Plaintiff's claims. A Tribunal is a three-person board composed of a judge, a lawyer and a physician or other health care provider in the same specialty as the defendant. At the Tribunal, we will present an Offer of Proof describing the facts of the case and submitting our expert's report detailing the departures from the standard of care and their causal connection with your injuries. If the Tribunal finds in Plaintiff's favor, the case may proceed without having to post a bond. If not, a bond must be posted before the Plaintiff is allowed to continue.
Depositions are a means of receiving sworn testimony from parties and witnesses who have information about what happened in the case. These witnesses may have been present when the malpractice occurred or have knowledge pertaining to your injuries. The defendant is always deposed as is the plaintiff. The defendant's deposition allows us to hear his or her explanation for the care that was given and allows us to prepare for the defendant's testimony at trial. When your deposition is scheduled we will prepare you for what to expect and be there with you while you are being questioned. Depositions allow the lawyers to learn all about you and, equally important, determine what kind of impression you will make before a jury.
Malpractice cases are placed on a schedule that allows three years, at the least, from the time the case is filed to the time of trial. There are exceptions to this schedule but they are rare.
Once suit is to be filed, your case will come under court supervision which necessitates putting into writing what our firm is undertaking on your behalf and what our fee will be.
Once Discovery is completed the next step in your medical malpractice case is receiving a trial date from the court. The trial date puts the case on a schedule for final preparation to go before the jury.
The vast majority of medical malpractice lawsuits are premised on the general theory of negligence, which holds that professionals (including doctors and nurses) owe their clients a specific set of duties. Medical professionals, in particular, are obligated to uphold the standards and best practices widely-accepted within the healthcare community.
The causal relationship between a plaintiff’s injuries and a medical professional’s negligence is one of the most frequently-disputed aspects of malpractice lawsuits. This is especially true in cases of cancer misdiagnosis, where defendants often argue that a plaintiff’s pain and suffering, or death, were simply caused by their disease, rather than a mistake in diagnosis or treatment.
In Pennsylvania, injured patients have a baseline of two years, beginning on the date of actual negligence, to file their lawsuit.
In order to prevail, defendants have to prove both that the patient had knowledge of the potential risk and voluntarily chose to accept the risk. Proving both elements is very difficult in practice, because most patients, however aware they may be of their treatment’s risks, don’t really have a choice between medical therapies. Without having presented multiple treatment options, and allowing a patient to choose among them, it’s hard for physicians to show that their patient accepted a procedure’s risks of their own accord.
Some defendants choose to argue that a patient could have taken reasonable steps to mitigate or prevent their own injuries. In employing this argument, which may be able to reduce the amount of awarded damages, defendants are not required to deny negligence on their own part. Most states agree that injured patients, even those who have been harmed by malpractice, should exercise all reasonable care in order to reduce the consequences of a doctor’s negligence. When patients fail to do so, leading to more serious forms of injury, their awards can be lowered.
Under this legal theory, a plaintiff’s own negligent acts are taken into account, but don’t eliminate their right to pursue compensation. Instead, the judge or jury will reduce the amount of awarded damages in line with how much the plaintiff’s negligence contributed to their injuries.
In order to prove medical negligence, plaintiffs will have to demonstrate four essential facts:
There is a four-part test that must be met to show that a defendant in a civil lawsuit was negligent. These elements are: 1 The defendant owed a duty of care to the plaintiff. This is not a hard thing to prove in a medical malpractice case where the doctor has a duty of care to their patients. 2 The defendant did not uphold their duty of care since they did not act as a reasonable physician would under the circumstances. 3 The plaintiff suffered some type of injury. 4 The plaintiff would not have been injured but for the action of the doctor. This is the causation test.
This means that, if your case does go trial, you will be in for a heavy lift.
There is a four-part test that must be met to show that a defendant in a civil lawsuit was negligent. These elements are: The defendant owed a duty of care to the plaintiff. This is not a hard thing to prove in a medical malpractice case where the doctor has a duty of care to their patients. The defendant did not uphold their duty ...
Why Your Medical Malpractice Claim Is Hard to Win at a Jury Trial. There is a good reason why many medical malpractice lawsuits will settle before they head to court for a trial. Both the injured plaintiff and the hospital or medical professional have an incentive to reach a settlement. For the defendant, they have an interest in avoiding ...
The outcome at a medical malpractice trial can be summed up like this: Plaintiffs do not often win, but when they are successful, they receive a very large award. The statistics are not the most favorable for injured patients filing claims . There are estimates that roughly 80-90% of the trials that go to a jury without very strong evidence end up ...
When it comes to a medical malpractice claim, the second and fourth parts of this test are where a plaintiff may run into some challenges. When a case goes to trial, the plaintiff will need to reconstruct the situation and walk the jury through the medical care that the plaintiff received. They will need to compare what ...
The Negligence Standard in a Malpractice Case. Putting aside statistics and perceptions, it is difficult to prove that the healthcare provider or doctor’s company is responsible for your injuries. A medical malpractice lawsuit will use the negligence standard to determine that the defendant is liable. There is a four-part test that must be met ...
To prove a medical malpractice case, the plaintiff must establish “ (1) the duty of the professional to use such skill, prudence, and diligence as other members of his profession commonly possess and exercise; (2) a breach of that duty; (3) a proximate causal connection between the negligent conduct and the resulting injury; and (4) actual loss or damage resulting from the professional’s negligence.’” ( Hanson v. Grode (1999) 76 Cal.App.4th 601, 606.)
Where a party presents evidence that raises an issue as to the foundation of an expert’s opinion in the motion, a deposition limited to that subject should be allowed. ( St. Mary Medical Center v. Superior Court (1996) 50 Cal.App.4th 1531, 1538-1539.) The obstacles you encounter in scheduling the discovery will become part of your application, rather than simply insisting that such discovery is necessary. Do not depend on a blanket statement that you believe evidence exists (but you don’t know what it is) to obtain a continuance.
The Court held that the moving defendant bears the burden of persuasion that no triable issue of fact exists. A triable issue exists if the evidence would allow a jury or trier of fact to find in the opposing party’s favor pursuant to the applicable standard of proof.
Atlantic Richfield Co. (2001) 25 Cal.4th 826. The Court held that the moving defendant bears the burden of persuasion that no triable issue of fact exists. A triable issue exists if the evidence would allow a jury or trier of fact to find in the opposing party’s favor pursuant to the applicable standard of proof. If this burden is satisfied, the burden shifts and the opposing party has the burden of production to make a prima facie showing of a triable issue. How these burdens are resolved depends on the burden each party bears at trial.
If the motion is made before 60 days has elapsed from the general appearance of the opposing party, it is premature. (Code Civ. Proc. § 437c (a).) Code of Civil Procedure section 437c (a) requires the notice and all supporting papers be served at least 75 days before the hearing date. This 75-day period only applies to motions that are personally served; all others are extended by the manner of service and location of service. The motion must be heard 30 days before trial unless the court “for good cause” orders otherwise. In McMahon v. Superior Court (2003) 106 Cal.App.4th 112, 115, the court held trial courts do not have the authority to shorten the minimum notice period for summary judgment hearings.
Compare the evidence produced with the fact, and you may find that the defendant has taken liberties in paraphrasing the facts or distorting what has been said. If so, include an objection that defendant’s evidence does not support this fact.
The reviewing court in Kelley held the expert’s declaration was not admissible because it failed to disclose the matter relied on in forming the opinion. The declaration lacked the “required foundational showing that the opinion rests on matters of a type experts reasonably rely on is not made where, as here, the expert does not disclose what he relied on in forming his opinion.” ( Id. at p. 524.) The court then noted that this “ deficiency was waived by Kelley’s failure to object, we point it out for the benefit of other litigants confronting these issues.” ( Ibid.) (Emphasis added).
The judicial misconduct complaint process follows a step-by-step procedure. The steps include:
The rules regarding official judicial misconduct also include rules concerning a judge’s disability, which may be a temporary or permanent condition which renders the judge unable to discharge the duties of their judicial office. 28 USC §§ 351 – 364 provides that any individual may complain about a federal judge whom they believe has committed judicial misconduct.
A judicial misconduct case begins when an individual files a complaint regarding the conduct of a judge. Examples of conduct which may constitute judicial misconduct may include when the judge:
There are certain ways in which a judge may abuse the law they are supposed to uphold. This may include if a judge ignores the law in court. It may also include if a judge:
An individual may request a judge to recuse themselves if there is a conflict of interest. A recusal, also called a judicial disqualification, is a request for a judge presiding over a case to remove themselves from that case so a new judge can be chosen.
However, there are likely many instances of misconduct that go unreported because individuals are unaware that the behavior constitutes judicial misconduct or they fear the complaint process.
A specific example of a judge breaking the law involved a Catoosa County Magistrate Judge in Georgia. This judge engaged in several behaviors which were considered misconduct, including:
Before contacting a malpractice attorney, you should attempt to contact your attorney multiple times by phone, email and other communication platforms you have used to reach him or her . If your lawyer still does not respond, you can send him or her a letter explaining the communication problems.
If your attorney has stopped responding to your message, you may wonder if they have committed legal malpractice.
If at this point you do not hear anything from your lawyer, you should consult with a legal malpractice attorney. A knowledgeable legal malpractice attorney can review the circumstances of a case and attempt to communicate with your unresponsive lawyer.
According to The American Bar Association (ABA) model rules of professional conduct related to communication, lawyers must: · Inform clients of decisions and circumstance related to their case. · Consult with clients about how they will accomplish their legal goals. · Respond to client requests for information.
Not infrequently, the mediation becomes the first opportunity for the different defense counsel and their claims representatives to actually meet and talk about the case. While the mediator probably knows the defense attorneys personally and from prior cases, he or she will still know less about the specific dynamics of the case than you will from your participating in discovery with defense counsel. Giving the mediator a heads-up review of the players and some suggestions about how to get the discussions moving in the direction of a meaningful offer will help the mediator get the trust and confidence of the defense attorneys, which is critical to the mediation process.
It is also important that your client understand the potential weaknesses of the case, so that any offer by the defense can be placed into the proper context of what may be considered as reasonable. While few plaintiffs want to proceed to trial and would prefer a settlement prior to trial, they need to understand that a trial may be necessary if the case does not settle, and they need to be willing to continue the case if the defense does not provide a reasonable settlement offer.
Some mediators prefer to discuss any offers or issues affecting liability directly with the plaintiff’s attorney and then leave the attorney to talk to the plaintiff. Other mediators will discuss both offers and other issues directly with the plaintiff and attorney. Which method works best for each case should be more dependent on the receptiveness of the plaintiff to separate discussions between the mediator and the attorney.
The other issue that is critical in any significant damage case is the probable life expectancy. Even though plaintiff’s experts may be prepared to testify to a significantly longer life expectancy than the defense experts, the defendants can by law have any judgment reduced to periodic payments, hence the annuity cost is the true measure of the defendant’s liability exposure. The cost of the least expensive annuity from an A or A+ rated annuity company is usually more than what the defense economist would calculate based on the defense expert’s opinion on life expectancy. Even though the defense can claim to have expert testimony on life expectancy that would justify a very low offer, when the factor that is based on life expectancy is changed to the annuity age-rating equivalent, the value of the case based on the defense life-care plan can become more realistic.
1. If liability is a significant issue in the case, offer plaintiff’s liability experts for deposition prior to the mediation.
Since there are often several months between an agreement, or Court order, to mediate a case and the date of the mediation, providing plaintiff’s main liability experts for deposition by the defense will help focus the liability issues and provide a basis for the defense counsel to seek some level of authority from the insurance carrier. It will also provide a basis for obtaining consent to settle from the physician, if such consent becomes an issue prior to mediation.
3. Prepare a detailed mediation brief and send it to the defendants, and the mediator, at least one week prior to the mediation.
The next step in the medical malpractice lawsuit is the process known as discovery. Discovery allows each side to learn about their opponent's case prior to trial. We will send written interrogatories or questions to the defendant. The defendant is required to provide answers which will give us information about what the defendant says happened in your case as well. We also will request any written documents or other evidence that may be relevant to proving your malpractice case. You can expect that the defendants in your case will also send written interrogatories and request documents of you as part of the discovery process.
Therefore, you must go into your case with the understanding that twelve strangers on a jury may end up deciding your case's fate. Secondly, medical malpractice cases take years to resolve. You need to prepare yourself for an experience that at times can appear to move at glacial speed.
A medical malpractice lawsuit begins with you, the plaintiff, filing a Complaint in court. A Complaint is a legal document which sets out what happened to you as a result of a care provider's negligence. It claims that you are legally entitled to receive damages for those injuries caused by the negligence. Your spouse and children also may have claims against the care provider as a result of your injuries. A deputy sheriff serves the Complaint on the defendant, care provider. The service of the Complaint initiates the care provider's obligation to defend the lawsuit by filing an Answer to it. In the Answer, the defendant care provider will respond to the medical malpractice claims in the Complaint and assert any legal defenses that may be available. After the defendant's answer is filed, the Court schedules a Medical Malpractice Tribunal to evaluate the legal sufficiency of the Plaintiff's claims. A Tribunal is a three-person board composed of a judge, a lawyer and a physician or other health care provider in the same specialty as the defendant. At the Tribunal, we will present an Offer of Proof describing the facts of the case and submitting our expert's report detailing the departures from the standard of care and their causal connection with your injuries. If the Tribunal finds in Plaintiff's favor, the case may proceed without having to post a bond. If not, a bond must be posted before the Plaintiff is allowed to continue.
Depositions are a means of receiving sworn testimony from parties and witnesses who have information about what happened in the case. These witnesses may have been present when the malpractice occurred or have knowledge pertaining to your injuries. The defendant is always deposed as is the plaintiff. The defendant's deposition allows us to hear his or her explanation for the care that was given and allows us to prepare for the defendant's testimony at trial. When your deposition is scheduled we will prepare you for what to expect and be there with you while you are being questioned. Depositions allow the lawyers to learn all about you and, equally important, determine what kind of impression you will make before a jury.
Malpractice cases are placed on a schedule that allows three years, at the least, from the time the case is filed to the time of trial. There are exceptions to this schedule but they are rare.
Once suit is to be filed, your case will come under court supervision which necessitates putting into writing what our firm is undertaking on your behalf and what our fee will be.
Once Discovery is completed the next step in your medical malpractice case is receiving a trial date from the court. The trial date puts the case on a schedule for final preparation to go before the jury.