What Components Constitute A Medical Malpractice Claim?
There are several components to a viable medical malpractice claim. The first component is that there has to be a very serious injury. Secondly, that serious injury has to be permanent and have lifelong affects. Third, a comparable healthcare provider must establish that injury. If there is a surgeon that you claim has made a mistake, we must get another surgeon of the same type—thoracic, general, whatever type of surgeon they are—to testify that the defendant surgeon indeed made an error and that he knew the standard of care, and either intentionally or negligently breached it. That’s a very high standard. That critical component is difficult to prove but is necessary along with the seriousness of the injury, in order for a viable medical malpractice claim. This all cannot be possible without the help of an experience Medical Malpractice Attorney.
Do Most Medical Malpractice Cases Settle Or Go To Trial?
Medical malpractice cases are much different than a regular personal injury case; where 90% or slightly more of the cases will settle before trial. The legislature has tipped the scales so favorably towards the doctors, and tort reform has tipped the scales so favorably towards the doctors, that unless there is a very easily established and obvious medical malpractice claim made by an injured plaintiff, the attorneys, doctors, and the medical profession are not reticent to take those cases to trial. The percentage of cases that go to trial is roughly 45%, with the remaining 55% settling.
Medicine is so complicated that it’s easy to get experts to come in and say, “This result is a known complication of a surgery or a known complication of this procedure.” Other experts will say, “This is not a complication that would have occurred without negligence, without a breach of the standard of care,” and then you have two experts saying different things—whom is the jury going to believe? That’s why it’s very easy, and why the medical profession is willing to go to the populous. It’s changing somewhat now, but doctors used to be considered by their peers and by the public as gods, intellectual and medical gods. They didn’t make mistakes—they were competent, and the people that cared. That’s diminishing somewhat, but the perception in most of the public still that doctors are highly skilled, highly trained, highly moral, and highly competent, and that they would not allow themselves to injure one of their patients.
That perception works very well for the medical profession with a jury and that’s one of the main reasons why they are willing to go to trial. Another reason is the propaganda that the medical profession publishes and disseminates, and that is that if there are medical malpractice claims, more doctors will stop practicing medicine, there will be a shortage of doctors, and people won’t get the care they deserve. That just isn’t true. The statistics from the UMIA itself show that the bad doctors, just like bad lawyers, bad accountants, or bad laborers, get weeded out. They eventually are not able to practice their profession, because they are not competent. But this kind of perception, and the insurance industry in the medical practice, tries at all odds to protect even the incompetent doctors.
It perpetuates malpractice, injures people, and it’s really a sad commentary on the medical profession, but they feel that it’s worth it because if you protect any doctors—and all doctors are perceived to be honorable and upright—then they get a huge benefit of the doubt when it comes to the jury when there is a close question of was this a known side-effect, or was this side-effect or this result caused only by negligence?
How Is Negligence Actually Proven In Medical Malpractice Cases?
Negligence is proven by an expert witness who is at the same level of the medical profession as the defendant. For example, if a nurse is accused of malpractice, then there must be a nurse expert that must testify that the defendant’s treatment fell below the standard of care and was negligent. There is a duty to perform every procedure in a reasonable and knowledgeable way to prevent injury to the patient. Dropping below the standard of care or breaching the standard of care is the same as breaching the duty that the healthcare provider has to the patient. That is negligence. That is the guideline.
We have to have an expert who is out of state. The expert also must be someone who isn’t insured by UMIA and who can independently assess the behavior and treatment provided by a healthcare provider. Further he or she must then establish that the means and methods provided by the defendant healthcare provider fell below the standard of care in that treatment. It has to be very specific. If we can’t get an expert that can assess what the healthcare provider did we do not have a case.
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