| However, a
case that is thoroughly prepared and well managed up to the time of
trial can be settled. This occurs about 30 percent of the time.
A medical malpractice case is
not a slip-and-fall, an automobile accident, or other personal injury
case; it is usually difficult and complex. Depending upon the
complexity of the medicine, causation question, and damages elements,
many malpractice cases require multiple experts. Discovery and trial
preparation is extraordinarily expensive. Malpractice cases often
require out-of-pocket expenses as high as $60,000 to $70,000 or more,
with time value as high as $300,000, particularly if cases need to be
tried.
These financial factors, as well
as the potential for legal malpractice claims if the case is not
handled properly, are realities which must be considered by a client
who may decide to retain a lawyer with experience in medical
malpractice.
A successful medical malpractice
case must have three basic elements: liability, proximate cause, and
damages. While many of our clients have an initial impression that a
doctor was negligent, our initial interview often reveals information
that shows that the negligence did not proximately cause the injury, or
that the negligence made no real difference in the patient’s
final outcome.
Medical Malpractice
Case Screening
In order for us to make an
informed judgment about your case, it is necessary that we elicit as
much information as possible concerning liability. A chronological
listing of every visit to any physician, both prior and subsequent to
the malpractice, and each treatment, examination or surgery is
essential. The chronology will assist in identifying what medical
records, x-rays or laboratory tests must be obtained in order to assess
the case.
We also want to know you believe
there was medical malpractice; who told you the doctor did something
wrong; and why you decided to see a lawyer. We must also know whether
you consulted with another lawyer and, if so, how and why that
relationship ended.
As your lawyer we must focus on
the causal connection between the alleged malpractice and the claimed
injury, as this is now the foremost defence advanced by lawyers acting
for doctors in Ontario today. This element is often the most difficult
to assess and the most difficult to prove. As an example, in a failure
to diagnose case, the most important questions is whether the failure
or delay in diagnosis contributed to the client’s disability
or death. Often, the answer is that the failure on the part of the
doctor made no difference in the result, that is, even if the patient
was timely diagnosed, the outcome would have been the same. This is
often perjoratively referred to as the “so what
defence.”
As we only take the most serious
of injures we must assess the injuries and corresponding damages in
each case by eliciting information about pre-existing or other
contributing factors, and analyze the physical, emotional, occupational
and economic impact of the injuries involved.
Investigation is particularly
important in the medical malpractice context, and records, and treating
physician records, is essential to a proper evaluation of the case.
Please note that while a
treating physician can provide useful insights, into your past
problems, present injuries, and future treatment, an unfriendly
treating doctor can be terminal to your case. Often the
parties’ experts cancel each other out at a trial in the
jury’s eyes.
In many cases, even the most
skilled and cooperative treating physician may not provide all of the
testimony needed to prove the case. As such, one of the most important
aspects of medical malpractice cases is the choice and use of expert
witnesses on the liability, proximate cause, and damages issues.
Depending on the type of malpractice, experts can vary widely. Every
area of specialty and/or subspecialty requires a corresponding expert
with the knowledge, experience and expertise to render a qualified,
reliable expert opinion in the particular area. As in other types of
cases, the expert will be evaluated on the basis of personality,
presentation, experience, responsiveness, and ability to communicate to
the jury in understandable terms. In most cases, particularly the
complex liability cases, it is essential to use more than one expert,
perhaps one with teaching and academic credentials and one with more
practical experience. The same is true with regard to expert testimony
on proximate cause issues. With regard to damages, expert witnesses may
well be necessary depending on the complexity of the injuries. Often,
economic, rehabilitation, occupational, psychiatric/psychological, and
life care experts are necessary to evaluate and quantify in real
dollars the value of various aspects of a claim.
In summary, the key to
successful evaluation, litigation, and hopefully successful resolution
of malpractice cases depends on many factors. The case must be built
upon solid liability, proximate cause and damage presentations,
supported by solid preparation, investigation, discovery, and expert
opinions. Through investigation and preparation, the good lawyers seal
off the anticipated defences and demonstrate to the adversary that
trial will be a painful and expensive proposition. Adherence to these
general principles will substantially increase the likelihood of a
successful result for both lawyer and client.
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