Keith, Miller, Butler, Schneider & Pawlik, PLLC represents people who suffer serious injuries due to negligence on the part of hospitals, physicians, nurses, and other staff members. Negligence can involve a number of occurrences including: failure to diagnose a medical condition, prescribing or dispensing improper medications, surgical errors and other negligent acts or omissions by a medical professional.
I. Introduction:
It is likely that no other field of civil litigation has done more to improve the life style of American citizens than medical malpractice litigation. Health care in the United States is among the best in the world, and this is in large part due to the scrutiny placed upon the medical field by lawyers pursuing medical malpractice litigation. The law of medical malpractice is an outgrowth of the general body of negligence law. It is applicable to all law suits against medical professionals for negligence in the rendition of medical services to their patients. At common law, the duty of due care by medical professionals was deemed to have arisen out of the contractual obligations which are created when a patient contracts with a health care provider to perform health care services. Even though some jurisdictions still retain common law contractual concepts in dealing with medical malpractice issues, medical malpractice is now generally considered to be an independent action in tort, rather than in contract.
II. Medical Malpractice:
In the same sense that the ordinary body of negligence law defines negligence as the doing or the failure to do something that a person of ordinary prudence would or would not do under the same or similar circumstances, the law of medical malpractice defines medical negligence as the doing or the failure to do something that a reasonably prudent health care professional in that field would or would not do under the same or similar circumstances. In negligence law the fictional "reasonable man" standard has been created to evaluate the conduct of the defendant who has been accused of negligence. In medical malpractice law the fictional "reasonably prudent health care provider" standard has been created. It has been argued that the "reasonable man" standard is objective, in the sense that it is a standard applicable to all human beings, whereas the "reasonably prudent health care provider" is more subjective, in that it allows the medical profession to define the standard by which its conduct will be judged, and that standard may fluctuate over periods of time as short as months, depending on available technology. On the other hand, the law holds even medical professionals to certain minimum requirements of care, and evidence presented by a defense lawyer that few people in a given medical field exercise caution in an area where caution should be exercised would not preclude a finding of medical negligence. In medical malpractice cases the plaintiff's lawyer must establish through expert testimony the standard of care required of professionals in the field of the defendant and that the defendant breached or failed to adhere to that standard of care, thereby causing the plaintiff's injury. A negative result in medical treatment in and of itself does not mean that the defendant committed malpractice. Medical treatment carries with it no guarantee of a successful outcome. In many medical procedures there are risks which cannot be avoided even if the health care professional exercises the greatest caution. These are called unavoidable risks. On the other hand, even risks which are unavoidable even when the greatest care has been exercised, may in a particular case, be shown to have resulted from lack of due care by the health care professional.
III. Defenses:
The standard legal defenses of contributory negligence and assumption of risk are generally considered to be applicable in medical malpractice cases, although by the very nature of the superior knowledge of the health care professional over that of the patient, there are probably less instances where these defenses can be effectively utilized by lawyers.
In terms of factual defenses, lawyers for health care professionals raise a number of arguments in opposing malpractice claims, several of which have little merit, but all of which create significant obstacles to the plaintiff's lawyer. Some of these arguments include:
The decision of the health care provider was a judgment call, within accepted medical standards.
The treatment by the health care provider was within an acceptable alternative form of treatment.
Health care providers are people. No one is perfect. They are fallible and make mistakes, and making an innocent and well- intentioned mistake of judgment is within accepted standards.
Although this argument is sometimes raised, it is without merit. The law's fiction of a "reasonable physician" standard assumes that mistakes will be made, and they are included within the meaning of negligence. By analogy, drivers are not perfect and sometimes are inattentive, but that doesn't mean that a driver who takes his/her eyes off the road and causes an accident is not guilty of negligence.
The absence of any notation in the medical record specifically showing the error demonstrates that the plaintiff's attorney cannot prove what happened.
Rarely is the mistake of a physician explicitly revealed in the physician's medical record. Circumstantial evidence is a legitimate way to prove medical negligence, particularly where one would not expect to find an explicit confession of negligence in the record. Despite the obviousness of this point, attorneys often argue that there is an absence of evidence of negligence.
The plaintiff's ultimate outcome in terms of medical difficulties cannot be shown to have been affected by the malpractice.
This is the way I and everyone else I know in my field do it.
This assertion is often interjected by the testifying physician to contradict the plaintiff's expert's definition of the standard of care. The plaintiff's lawyer cannot produce every physician to testify to the way things are done, and must rely on the testimony of his or her expert as well as trial court rulings to combat this assertion.
IV. Proximate Causation:
Just as in negligence law, attorneys in malpractice litigation must show that the damages were proximately caused by the malpractice of which the defendant is accused. Unlike a simple accident case, most plaintiffs are already injured or ill at the time they are victimized by medical malpractice. Therefore, Plaintiff's attorneys must, through the use of their experts, separate out the damages that would have resulted even if the plaintiff had received appropriate medical care from the damages that actually resulted with the addition of inappropriate medical care. It is often difficult for the victim, who is afflicted with serious medical problems, to appreciate the requirement of the law that his attorney prove that the malpractice worsened or failed to stem a worsening of his/her medical condition. In addition, causation must be proved to a reasonable degree of medical probability, and mere possibility is generally not sufficient. If all the testimony shows is that a given outcome might (as opposed to "probably would") have been avoided by a particular treatment, there is generally a failure of proof.
V. Informed Consent:
The doctrine of informed consent is a unique area of malpractice litigation. It does not follow strict negligence principles, in that the plaintiff's lawyer need not show that the health care provider was negligent in failing to obtain his/her consent to treatment. In general, the law grants to the conscious patient the right to choose whether to obtain medical treatment and requires that a health care practitioner provide the patient with accurate information as to diagnosis, the nature of the proposed treatment, any risks associated with that treatment, alternatives to that treatment along with their associated risks, and the risk of no treatment. The failure to provide that information is, in and of itself, a violation of the patient's rights. Informed consent does not involve a question of the standard of care within a particular medical field, and there is no requirement that the plaintiff's lawyer produce expert testimony that reasonably prudent health care providers within that field provide that information to their patients. However, the attorney may, nevertheless, be required to produce expert testimony to show the nature of the risks and the alternatives to treatment.
A plaintiff must show not only that his/her rights were violated by a health care provider's failure to provide this information, but also that a reasonable person in the position of the Plaintiff, without the benefit of hindsight, would or would not have chosen the treatment at issue had accurate information been given. It is important to note that this last requirement will not necessarily be satisfied by testimony from the Plaintiff that he or she would or would not have chosen the treatment in dispute. The fact finder, whether it be a judge or a jury, is free to find, despite testimony from the plaintiff to the contrary, that a reasonable person would have chosen to decline or accept the treatment in dispute. For this reason, many violations of informed consent will not give rise to good malpractice claims. If the risks are low (despite the fact that the plaintiff, in hindsight, is now known to have fallen prey to that low risk) and the treatment is reasonably necessary or desirable, the fact finder may well conclude that even if the plaintiff had been properly informed of the risks, the same decision would have been made by a reasonable patient in the plaintiff's position.
It is important to distinguish between the consent form signed by many patients, the doctrine of informed consent, and the concept of medical malpractice. The fact that a consent form was signed is evidence of informed consent, but it is not conclusive. Evidence may be introduced as to the contents of the form and the time and circumstances of the signing. Furthermore, the fact that a consent form mentions a particular risk or the fact that a physician advises the patient of a particular risk, does not mean that the patient has consented to the physician committing medical malpractice in bringing about the danger of which the patient was warned. For instance, the fact that a patient is advised that there is a danger of nerves or vessels being severed during a surgical procedure does not relieve the physician of the obligation of performing the procedure in a medically appropriate manner. The consent of the patient operates only for those injuries which were not avoidable even with the exercise of appropriate care. In such a case, the attorney would be permitted to show negligence in the performance of the procedure, despite the fact that the Plaintiff was warned of the danger.
VI. Medical Experts:
The requirement that attorneys present expert testimony expressing an opinion on the standard of care within a particular medical field and on the defendant's breach of that standard of care provides one of the most formidable obstacles to plaintiffs in pursuing malpractice claims. Within the medical profession there is what has been termed a "conspiracy of silence" among medical professionals on providing testimony in malpractice claims. It is rare for local physicians to testify against a colleague, even in large communities where it is unlikely they know each other. Ostracism within the medical community against those physicians with the courage to testify long ago resulted in an informal code of conduct prohibiting physicians from testifying for plaintiffs in malpractice claims. This forces plaintiffs' attorneys to seek experts from other communities, often far away from the location of the trial. The limited number of physicians willing to testify, even from distant locations, results in high per hour expert witness fees, often between $400 and $500 per hour. The lawyers for the defendant physician, on the other hand, usually have an unlimited pool of expert witnesses from the defendant's own colleagues in the community, making it easy to provide a defense, even when the malpractice is relatively clear. Insurance companies, bolstered by a medical profession which believes it should be immune from civil suits, while at the same time refusing to adequately police itself, are often willing to fight to the finish on these claims. Settlements, if they occur, rarely occur before the trial is imminent. The effect of this is that the expense of expert witnesses and the cost of discovery in malpractice claims often results in expenses in excess of $25,000 to the plaintiff. It is easy to see why only the most egregious instances of malpractice causing only the most serious injuries result in viable malpractice litigation. The hoax perpetrated by the insurance industry to the effect that the courts are filled with frivolous and petty malpractice claims is one of the most fraudulent and malicious propaganda campaigns ever foisted upon the public. It is simply not economically feasible for any plaintiff's attorney to prosecute any but the most meritorious malpractice claims with the most seriously victimized plaintiffs.
VII. Conclusion:
Pursuing a medical malpractice claim in the United States is an expensive and arduous undertaking. Proving the claim requires expertise, resources and tenacity. Keith, Miller, Butler, Schneider & Pawlik, PLLC has successfully handled a large number of malpractice claims, resulting in a number of favorable settlements and verdicts. If you have a question about a possible case or would like a consultation, please feel free to call us at 479-621-0006.