Evaluation and handling of medical malpractice claims is a serious business. In Ontario, the Canadian Medical Protective Association, which defends negligence cases on behalf of medical doctors, take a hard-line, try-every-case strategy, particularly where the plaintiff’s lawyer is not recognized as a medical malpractice specialist. Their lawyers are well-educated, experienced, medically informed, and expertly advised about medicine. In Canada, approximately 80 to 95 percent of medical malpractice cases that go to trial result in defence verdicts.
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 pejoratively 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.