Jun 4, 2018

What Makes a Medical Malpractice Case “a Case?” – Part 2

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So, you think you might have a medical malpractice claim.  About 8-10 folks contact our firm each day wondering if they have been harmed by the negligence of a health care provider.  Because we only take about 1 out of every 250 cases, we need to be able to quickly and efficiently assess when a claim might actually be a viable malpractice case.  How do we do that?

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The first thing to keep in mind is that the litigation of medical negligence claims takes place in an alternate reality.  Most of the potential claims I look at involve malpractice.  Plain old common sense tell us something bad happened which should have been avoided or prevented.  Proving a medical negligence claim in court, however, involves more than a common sense understanding that negligence occurred.

The negligence needs to be exceedingly clear and easily understood by an unsophisticated juror.  Complicating factors like other significant health conditions, age, timing, multiple negligent health care providers, and plausible alternative explanations for the cause of an injury can quickly muddy the waters.   The defense uses the antiseptic and controlled environment of litigation and the courtroom to highlight these complicating factors in order to distract jurors from the truth and cast doubt in their minds on issues which might otherwise seem obvious.  And, they do it well.  Irrelevant issues are a defense lawyers best friend.

An injured person also must establish medical negligence by a preponderance of the evidence (the burden of proof), meaning there is a 51% chance that a health care provider was negligent.  It may seem like a low bar, but juries almost always hold plaintiffs to a higher standard.  Arizona juries will generally look to give a health care provider every benefit of the doubt, meaning that they need to be 100% sure that negligence occurred.  That’s why defendants win at trial more than 85% of the time and those loses often involve what I consider to be good cases being tried by good lawyers.  Because any lack of clarity will make it difficult for a person harmed by medical negligence to meet their burden of proof, the case for negligence needs to be nearly indefensible to obtain a favorable jury verdict.  Jurors essentially need to be rolling their eyes at defense arguments, and even then that might not be enough.

Lawyers must also carefully assess the amount of harm that someone has suffered.  The injury needs to be significant because litigating medical malpractice cases is risky and expensive.  The harm needs to justify the costs of bringing a case from the investigative stage to trial which can be over $100,000 before considering for attorney’s fees.  Generally this means someone must have died or suffered a permanent and debilitating injury.  If an injury occurs, but the victim gets all or mostly better, there probably is not a viable claim to be made, even if the negligence is clear.  If a death is involved, there needs to be a sufficient number of survivors qualified to bring a claim.  The loss of an adult child by an elderly parent or the loss of an elderly parent by an adult child are probably not going to be sufficient to justify a medical malpractice claim given how Arizona juries value those injuries.

The answers to questions of viability are not always clear.  If it seems possible that the negligence may be strong and the damages are sufficient on an initial case review, then the time and expense of additional investigation is usually warranted.  This includes obtaining and reviewing medical records and consulting with experts.  Getting to this point efficiently, however, requires a lot of experience and a lot of patience.

It also requires deep compassion for folks who just want to know what happened to them or a loved one.

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