Attorneys who practice personal injury law often meet with people who have suffered harm at the hands of their doctor. People who are injured through no fault of their own deserve fair compensation. However, cases against doctors (and other types of healthcare providers such as dentists, chiropractors, and nurses) are very different than the more common injury claims such as car accidents or slip and falls. Because of these differences, law firms must look very closely at the facts before accepting these cases.
One of the biggest challenges attorneys have in representing people who have been injured by a doctor is proving that the doctor’s care is below what the medical community requires, or that the care fell below the professional “standard of care”. The professional standard of care is identified by asking the following question: “Would a similarly skilled health care professional have provided essentially the same treatment under the same, or similar, circumstances?” To answer this question, a very close examination of the facts is required, and attorneys often consult with medical experts early in the case to help make this determination.
The evaluation of the standard of care can be quite complex. For example, medical textbooks may list many acceptable, but different, ways to treat an illness. Therefore, doctors have many choices for the treatment for their patients. It is not enough that a harmful or bad outcome resulted from a doctor’s care- there are no guarantees with any treatment. A bad outcome is not necessarily medical malpractice! What we have to show is that what the doctor did in a particular situation was significantly different than what every other doctor would do in a similar situation. This is a difficult process, and a law firm must be able to show that the doctor failed to act ‘reasonably’ in order to seek compensation for a client.
Another significant challenge is the issue of “causation.” The injured person must not only prove that the doctor did not meet the “standard of care”, but that the poor care caused their injuries. For example, let’s say that a doctor misread a report that showed that a patient had cancer. Instead, the doctor told the patient that there was no cancer found. In this situation, it would be very easy to show that the doctor did not meet the standard of care. However, now we must also prove that the misdiagnosis caused the harm the patient is describing. So, in this example, treatment may have been delayed due to a misdiagnosis. However, if the course of this patient’s cancer would not have been significantly changed even if the doctor read the report correctly, then we would be unable to prove “causation.” In other words, medical malpractice occurred because the doctor’s conduct did not meet the standard of care, but the harm that the patient suffered was not increased by the malpractice event.
There are some other aspects specific to medical malpractice cases which must be considered by both the attorney and the potential client:
- Because these cases involve medicine and medical care, the court requires that both the injured person, and the doctor being sued, use medical experts to testify at trial. The costs of hiring these experts can be surprisingly high with many thousands of dollars being spent on an average medical malpractice case. This is a cost that many injured people, and some attorneys, are unable to afford.
- Doctors win cases against them approximately 80% of the time. That means that after a year or more of preparing for trial, and spending tens of thousands of dollars, the injured person walks away with no compensation and is often poorer for the effort!
- Doctors go into a trial with an advantage that many other professionals do not have. Jurors show a great deal of respect for doctors and their medical decisions, and often are willing to ignore a doctor’s failure to practice in the accepted manner because of this. Many cases have been lost because jurors felt that the doctor “did all he could,” despite evidence that what was done did not meet the standard of care.
- Jurors often have difficulty understanding complicated medical testimony and this can lead to bad decisions, even in the presence of clear medical negligence. Often, when faced with complicated medical issues and testimony from experts from both sides, jurors take the defendant doctor’s word as truth.
- The amount of money that a jury in California can award an injured person for their pain and suffering is $250,000.00. That means that no matter how awful the injury and the pain associated with it, the maximum amount that can be provided by a jury is $250,000.00. This can be very unfair, particularly when the injured person is young and will have to live for decades with pain and suffering from a doctor’s bad treatment.
At Garmo & Garmo, we have years of experience in medical malpractice. We can evaluate your potential case, and we will always give you an honest opinion as to the likelihood of success in your particular matter.