Medical providers, such as doctors, surgeons, nurses, therapists, hospitals, and nursing homes are all part of the health care delivery system upon which we rely. When one of these providers renders negligent care which causes injury, compensation may be due to the injured victim.
Medical Malpractice, What is it?
Malpractice simply put is negligence in performing a professional act. Medical providers are required to exercise reasonable care in accordance with the standards of care for the profession involved. If a doctor, surgeon, hospital, or other medical provider, acts or fails to act in a manner that deviates from the accepted standard of care, then that provider may be liable for money damages. Before a provider will be found liable for malpractice there must also be a finding that the deviation from the standard of care caused the injured party’s condition or made the condition worse. In Pennsylvania, a plaintiff may also prove his/her case by virtue of the health care provider’s negligence, if there was an increase in the risk of harm to him/her or a decrease in the chance of avoiding injury.
How Do You Prove a Medical Malpractice Claim?
The hardest part of any malpractice investigation is getting an expert opinion that supports the claim of professional negligence. It is virtually impossible to pursue a medical malpractice claim without an expert witness. The expert must be able to render an opinion that the defendant provider fell below the standard of care and that the deviations from the standard of care caused injury to the plaintiff. As one might suspect, it is very difficult to get an expert from the local medical community to testify against a colleague. This difficulty often requires the use of experts that are geographically distant. It also subjects those experts to cross examination as a “hired gun.” If the expert was selected by an expert locator service there is even a greater chance of the expert being labeled as a “hired gun.” In our firm we try to find the best expert that has not made a career out of testifying. The defendant medical community usually has little difficulty getting colleagues to testify that their actions did not fall below the standard of care.
In order to help prove your case you need to be your own investigator. Ask questions of your doctor. Sometimes what is said is unguarded and revealing. At times defendants’ statements are admissions that can be legally decisive in court. There is occasion that excuses given for a poor medical outcome are not substantiated in the medical records which may be persuasive to a jury.
The referring physician, who sent you to the surgeon you suspect caused you injury may be a great source of information. However, do not expect a local doctor to willingly testify about his/her observations of negligence. On many occasions our clients have told us that their family doctor told them that the specialist “really messed up.” When a follow up phone call is made to talk to the family doctor there is usually no willingness to discuss the specialist-or-themes-up-‘L-However you should not discount the value of comments made by family doctors, nurses or other health care professionals. Even the comments made with the understanding that you will not call them as witnesses lets you know that perhaps there has been a medical error, and that you need to look elsewhere for follow up care as well as getting a medical-legal opinion.
If you suspect malpractice do not confront the defendant health care provider until you get a copy of your records. Do get a copy of your records to get a second opinion. When getting a second opinion listen carefully and ask the second opinion doctor how your condition occurred. Even the second opinion doctor’s silence may be revealing from an informational standpoint. If you do want to confront the doctor suspected of malpractice, try to have a witness present, such as a spouse or close relative. In fairness to medical practitioners not every unfortunate result is falling below the standards of care. Jurors are told just that. The suspected malpractice must be one that is not just a different school of thought on how to treat a patient, but a medical error. Not only must you prove an error, but also that the error has or will make a difference in the outcome.
Medical Malpractice, Frivolous Lawsuits, and the Current Climate
As of this writing there is a move by lobbyist on behalf of the medical profession to limit the rights of injured malpractice victims. The doctors are saying it is time to put an end to “lawsuit abuse.” What these people fail to mention is that the courts are not necessarily friendly to malpractice cases. You cannot get to a courtroom without an expert witness who has already said that the doctor or hospital has fallen below the standard of care. The days are long since passed that cases are brought in the hope of a quick settlement. Doctors are exercising their rights under the “consent to settle “clauses in their insurance contracts. The doctors do not want settlements to go on a national databank of cases settled by them. Yet the information in that data bank is not obtainable by the injured plaintiffs. Further, in all Pennsylvania counties the jury verdicts are consistently in favor of defendant medical providers. Even in the most favorable venue for malpractice cases the statistics reveal that two out of three cases are won by the defense. The insurance crisis is believed by many trial attorneys to be more a function of the insurance market forces and not due to actual losses.
As a practical matter, our firm accepts only those cases in which we are able to find an expert that will stand behind an opinion of malpractice and the case has significant damages. These cases are expensive cases to handle. We work on a contingent fee basis. If we do not win, we receive no payment for legal fees. We take only cases that are meritorious. A frivolous lawsuit hurts everyone, including attorneys who represent plaintiffs. So the next time you hear that there are too many frivolous malpractice lawsuits, remember the source of this propaganda.
If you believe you, a friend, or a close family member is a victim of medical negligence, please give us a call for a no charge consultation.
Written by Frank P. Murphy