April 6, 2020
Thanks for visiting our website. We handle medical malpractice cases, and we want to explain some basic principles that pertain to medical malpractice cases to help you understand how we decide whether to recommend that such cases be filed.
A patient must prove three elements to win a case against the doctor or hospital:
- The doctor or hospital did something negligent.
- What the doctor or hospital did caused some damage to the patient.
- The amount of money that would adequately compensate the patient for the damage caused by the doctor or hospital.
In nearly every medical malpractice case, the law requires the patient to present expert testimony to prove the standard of care and that there was a breach of the standard of care. Only the expert witness can tell the jury that a doctor was negligent in the care of a patient. Generally the expert is another doctor who has the same type of qualifications as the doctor being sued.
Just because there was a bad outcome does not make the doctor or hospital liable to pay damages. They are legally liable only if their conduct violates the standard of care for doctors like them. The phrase “standard of care” means that the doctor did something that reasonable, competent doctors would not do, or did not do something that reasonable competent doctors would do. In some situations, the standard of care is well established and published. In others, it is not. The general principles governing the conduct of doctors and hospitals are:
- The doctor must take a history from the patient or the patient’s family if the patient is unable to do so.
- The doctor must create a differential diagnosis, which is a list of the medical conditions that can cause the abnormal signs or symptoms, and the doctor must then use tests, imaging studies, and other diagnostic means to rule out the possible causes beginning with the most dangerous of those potential causes. No doctor may ever simply assume that a symptom is accounted for by a common benign condition.
- Doctors must stay current with advances in medical knowledge.
The concept of differential diagnosis is taught early in medical school. It means that the doctor is required to think through all the possible things that could account for the condition and through the process of testing and logical analysis arrive at the correct diagnosis.
One of the difficulties that injured patients has is finding qualified doctors who are willing to testify to another doctor’s negligence. Many doctors are reluctant to do so and some cases of negligent behavior by doctors are never filed because other doctors are unwilling to risk criticism by their colleagues which can occur when they help a patient to get compensation. Most doctors are not nearly as comfortable in the courtroom as they are in the operating room and this can also cause reluctance to testify. Those doctors who are willing to help patients generally charge high hourly rates for their work, thus creating an additional obstacle to pursuing a case. Five hundred dollars an hour is typical for expert physicians and fees of even $1,000 per hour or more are sometimes charged for certain areas of medical specialty. Lawyers like me who work on a contingent fee may be willing to advance the costs of these experts so that the individual patient is not required to pay the expert’s fees, but the cost of expert witness evaluations are always a major consideration in determining whether or not to accept a case.Posted April 6th, 2020