Evaluating
Medical Malpractice Claims
by Tamara LeFevre, JD
Western Litigation, Inc.
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Common sense suggests that a medical malpractice claim's
failure or success would rest solely on the answer to one
question: did the physician provide proper care and treatment
to the patient? From a legal standpoint, that is indeed the
key question that must be answered by a judge or jury. However,
when fully evaluating the likely success of a medical malpractice
claim, the question of whether the physician provided proper
care is really only the starting point.
The required legal elements that must be determined in a
medical malpractice claim are negligence, damages and causation.
A plaintiff must prove that the physician breached the “standard
of care” (i.e. acted negligently) and that such negligence
caused the claimant to suffer “damages.” Consideration must
be given, however, to a number of other factors in order to
determine whether a medical malpractice claim should be settled
or fully defended. And the decision to settle or defend may
change as the claim progresses.
The Standard of Care
The "standard of care" is defined as that care which a reasonable
physician in the same or similar circumstances would have
provided. If the physician did not adhere to the standard
of care, he is negligent. In order to prove negligence, the
plaintiff must retain an “expert” physician to provide testimony
that the defendant breached the standard of care. Each party
must have supportive expert testimony in order to pursue or
defend the claim.
Damages
What happened to the patient as a result of her injury/illness
and the alleged improper treatment? Has she recovered completely?
Is she deceased? Disabled? Will she require additional future
surgeries or treatment? The term "damages" is defined as the
consequences - physical, emotional, and financial - that the
patient has incurred due to the physician’s alleged negligence.
Part of assessing the value of a claim is determining how
much a jury is likely to award to the plaintiff for his damages
should the jury decide that the physician violated the standard
of care. The evaluation of damages is separate and apart from
the evaluation of whether there is liability on the part of
the physician. Damages can exist regardless of whether the
physician’s care was superb or sloppy. Example: A patient
who is paralyzed as a result of a back fracture has damages
whether he received good care or negligent care - he is paralyzed
regardless. In fact, when damages are catastrophic and the
plaintiff comes across in a sympathetic way, some juries will
tend to award a verdict in favor of the plaintiff even if
they do not really think the physician was negligent.
Causation
The final necessary element is “causation,” which is the
link between negligence and damages. Even if the physician
was negligent in his care and the plaintiff suffered damages,
the plaintiff still has to prove that the negligence caused
the damages in order to be compensated. Example: An emergency
medicine physician fails to diagnose a fractured arm in a
young athlete when the patient presents soon after the injury,
because the doctor neglected to order an x-ray. A few hours
later, the injury is diagnosed by another physician at a different
hospital, but it is determined that the delay did not change
the patient’s outcome. The first physician’s failure to diagnose
the injury did not cause the patient’s damages. If the first
physician’s failure to diagnose did affect the outcome (i.e.
lost opportunity for surgical repair), then causation would
exist.
Other Factors to Consider
There are many other factors that affect the value of a case,
whether they should or not. The following are a few examples.
Patient's Demographics
How old was the patient? Was he otherwise in good health?
Was he married? Did he work, and if so, what was his income?
Did he have minor children still depending on him financially?
Is the patient of the same racial and socioeconomic class
as most of the jurors will be?
Venue
An identical injury in an identical patient who received
identical medical care will have a different value in one
county than it does in another. Where a case is pending is
a crucial factor in determining what a likely verdict will
be and what the physician’s chances of success are in defending
himself. Some counties will have more liberal or plaintiff-friendly
jurors than others.
State Laws
While states have similar basic procedural laws regarding
medical malpractice claims, differences do exist. For example,
some states have a cap, or maximum amount, that a plaintiff
can recover, while others do not. Pertinent statutes and case
law in a particular state affect the level of risk a physician
faces in a medical malpractice case.
Effectiveness as a Witness
Juries make decisions based on who they believe. Even if
a physician provided excellent care, if she cannot explain
in an effective way her thought process and the treatment
she provided, the jury may not find her to be credible or
may simply not understand the medicine well enough to determine
whether the standard of care was met. Similarly, if a plaintiff
comes across as sincere, sympathetic and likeable, the jury
may find in the plaintiff’s favor regardless of the facts
of the case.
Finger Pointing Among Defendants
When there are multiple defendants in a case and one or more
tries to shift blame to another defendant, the defense of
the case becomes more complicated, expensive, and often compromised.
When defendants are fighting amongst themselves, juries sometimes
choose to simply hold all the defendants responsible rather
than try to sort out liability. This scenario can also make
it difficult for a physician to settle the case, as the plaintiff’s
counsel in this situation will typically refuse to settle
with just one defendant; instead, he will settle only if all
defendants settle together at the same time.
Plaintiff Counsel's Ability
Is plaintiff’s counsel experienced and savvy? Or mediocre
and lazy? It makes a difference. Just as the physician needs
a qualified, experienced attorney defending him, the plaintiff
needs an equally good advocate to present her case. Cases
with more merit often have better plaintiff’s counsel handling
them than cases in which the injury is minor or the matter
is frivolous. A good plaintiff’s attorney can increase the
likely value of a case.
Strength of Expert Witnesses
Both parties must have an expert witness at trial, and each
side’s expert will have conflicting positions about the care
and treatment, as well as possibly causation of damages or
the extent of damages. Thus, it stands to reason that the
stronger and more convincing one party’s expert is, the better
chance of success that party has of winning the case. In a
case where there are problems with the physician’s care, it
can be difficult to find an expert physician who is able to
solidly support the physician’s care and withstand plaintiff’s
counsel’s cross examination during a deposition or at trial.
When faced with that situation (or no supportive expert at
all), settlement is often a good option for the physician.
Miscellaneous Factors
Unique factors may arise in a particular case, such as a
physician whose spouse dies a couple of months before trial,
and the court refuses to continue the trial to a later date.
If the case is not solidly defensible and the physician cannot
present well at trial, it may be better to settle the case
in light of the circumstances, even though the original plan
was to defend it. Another example would be video surveillance
of a plaintiff, who has claimed to be very disabled, that
shows the plaintiff getting around perfectly fine. While the
physician and his carrier may have been considering settlement
of the case, they now may want to defend the case or at least
settle for less money than they would have before.
Conclusion
The evaluation of a medical malpractice claim is multi-faceted
and evolves as the discovery process of the claim progresses.
Some factors are pre-determined (like venue and the patient’s
demographics), and others are not (like what kind of witness
the plaintiff will be). Unfortunately, one thing is clear
– it’s not all about medicine.
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