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A Primer on Medical Malpractice Lawsuits

By: Attorney Andrew M. Rockman
When the topic is medical malpractice, there is much more involved than simply answering the question did a medical care provider practice below the required standards of care.

Contrary to the press and public relations, the medical care givers win far more cases than they lose, sometime as much as 80-100% in any given month. It is not a drastic simplification to describe litigation as a hurdle race that often includes the unspoken media created prejudices and policies of a cynical jury pool. The injured party has to clear all of those hurdles to win. If the defendant’s attorney can trip the injured party on only one of those hurdles, the verdict goes to the defense.

Malpractice and PROVABLE medical malpractice are vastly different. Regrettably, “provability” is no small problem, given the many excuses and explanations available to the malpracticing care provider. Beyond that is the hard fact, provability is only one of the obstacles. A courtroom full of hurdles awaits the injured plaintiff that must be cleared before he or she can convince the jury that he or she deserves a positive verdict.

Winning not only involves proving the medical malpractice. It also requires convincing the jury that plaintiff’s definition or description of proper care is correct, as opposed to the explanations thrown at the jury by the defense. If the plaintiff can clear that hurdle, then he or she must prove that the medical malpractice caused the bad outcome, and not the initial injury, disease or “unavoidable” but predictable complication of the treatment or injury.

Also, the plaintiff’s attorney must convince the jury that the injury and residual problems of the medical malpractice are serious enough to make the jury want to award money damages. This is no small burden given the jurors’ own experiences, biases and preconceptions, insurance industry propaganda, and their concern for the verdict impact on their cost of medical care.

If this seems like a heavy load to carry, it’s only a part of the responsibility the plaintiff’s attorney takes on when agreeing to represent an injured patient. It is not only the merits of the facts and medicine that determine whether there will be lengthy litigation, a settlement, and/or a positive verdict; it is the many bumps in the road from the malpractice event to the courtroom, and the ability of the plaintiff and his or her attorney to navigate those bumps that will determine the outcome.

When an injured person seeks the assistance of a medical caregiver, the language of medicine is not the usual vocabulary of laypersons. If there is a medical malpractice dispute, the defense wants it fought in the defendant medical caregiver’s language, with the defendant knowing “where the egg is hidden”. Thus, the injured person must have his medical malpractice case argued, to a degree, in a strange land in a strange language. The “art” of it is for the plaintiff’s attorney to translate what happened into terms and actions that are not so mystical, but rather descriptive of what happened, but should not have.

Furthermore, the plaintiff must “defend” his or her health status against the built in defense that the medical problems were caused by the plaintiff’s medical condition and not substandard medical care.

At the center of the battle is that only one party has a script, and that is the medical record. The problem here is that the content of the record or chart is often written and controlled by the offending medical care provider and his or her associates. Between the patient and the medical caregiver, only the latter has records, supposedly created contemporaneously with the treatment events. However, sometimes portions of those records are made and completed later on, after the medical caregivers realize there may be a liability problem. The injured person’s knowledge and verbal description of the event is often different than what was written in the medical record. This provides the defendant with the argument that the records are correct because they were objectively put together before any knowledge of malpractice. Proving their inaccuracy and absence of objectivity can be a tough hurdle for the plaintiff’s attorney.

There are also the medical books/journals used after the fact by the defense attorney as a vast source of explanations and excuses that what actually happened was a known, but unfortunate and unavoidable complication having nothing to do with any medical error. The argument for the defense is that the excusing explanations must be believable and applicable since it is written in a medical book/journal.

Sometimes there is a decision by the defense not to resolve a legitimate medical malpractice claim. This may be based on the willingness of the defense to test the plaintiff’s resolve or the jury’s susceptibility to the many hurdles that will be thrown in front of the plaintiff. As was mentioned earlier, some of those obstacles are brought into the courtroom by the jury and involve prejudices or concerns that have been cultivated by an industry over time to induce jurors to use industry created beliefs in an attempt to defeat the patient/plaintiff’s claim.

Cases do not always go to trial on the merits of the medicine. The business of the insurance industry is to accept premiums to take financial risk. This often includes forcing a matter to trial, not because there was acceptable treatment, but rather on the calculated decision that the medical malpractice might not be easily proven or that the spoken and unspoken hurdles might sell to the jury.
 

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