MEDICAL MALPRACTICE ATTORNEYS

Colling Gilbert Wright & Carter

At the Orlando personal injury law firm of Colling, Gilbert, Wright & Carter we pride ourselves on our reputation for aggressive and effective representation, honesty, persistence, responsiveness, and competitive spirit. After contributing to building Florida's»»»Read more

McEwan, Martinez, Dukes & Hall, P.A.

The past guides us toward the future. From the day that we opened our doors in 1947, our attorneys have known but one way to practice law—by providing personal service, listening to our clients’ needs with an open mind, and offering guidance and creative»»»Read more

Adams Hall Schieffelin & Smith, P.A.

Adams Hall Schieffelin & Smith, P.A., is a Florida law firm providing general and insurance defense litigation with a significant practice area devoted to health care law. Members of the firm regularly litigate in nearly every court in Florida from»»»Read more

Nejame Law Firm

The NeJame Law Firm is AV rated, the highest rating awarded by Martindale-Hubbell, the nation's leading lawyer directory. We are also acknowledged in the Bar Registry of Preeminent Lawyers, which recognizes but a select few of America's leading lawyers. »»»Read more

McMillen Law Firm

McMillen Law Firm handles malpractice cases throughout Florida and Georgia, and on occasion we are invited by lawyers in other states to assist them with their cases. Although we have recovered many millions of dollars for our clients over the years, unlike»»»Read more

Bailey Fisher

Each Orlando personal injury attorney at our firm is dedicated to the proposition that you deserve our best effort in seeking to achieve a favorable outcome to your case. That is why we go the extra mile, putting in extra time or effort on your behalf when»»»Read more

MEDICAL MALPRACTICE LAW SUMMARY

Medical malpractice is professional negligence by act or omission by a health care provider in which the treatment provided falls below the accepted standard of practice in the medical community and causes injury or death to the patient, with most cases involving medical error.[1] Standards and regulations for medical malpractice vary by country and jurisdiction within countries. Medical professionals may obtain professional liability insurances to offset the risk and costs of lawsuits based on medical malpractice.

Back in 1984, the extrapolated statistics from relatively few records in only several states of the United States estimated that between 44,000-98,000 people annually die in hospitals because of medical errors.[2] Much work has been done since then, including work by the author of that study who moved on from those low estimates back in the 1990s. For example, the Centers for Disease Control and Prevention currently says that 75,000 patients die annually, in hospitals alone, from infections alone - just one cause of harm in just one kind of care setting.[3] From all causes there have been numerous other studies, including "A New, Evidence-based Estimate of Patient Harms Associated with Hospital Care" by John T. James, PhD[4] that estimates 400,000 unnecessary deaths annually in hospitals alone. Less than one quarter of care takes place in hospitals. Across all care settings the numbers are higher.

Another study notes that about 1.14 million patient-safety incidents occurred among the 37 million hospitalizations in the Medicare population over the years 2000-2002. Hospital costs associated with such medical errors were estimated at $324 million in October 2008 alone.[5]

Between 15,000 and 19,000 malpractice suits are brought against doctors each year.[6]

The parties

The plaintiff is/ was the patient, or a legally designated party acting on behalf of the patient, or – in the case of a wrongful-death suit – the executor or administrator of a deceased patient's estate.

The defendant is the health care provider. Although a 'health care provider' usually refers to a physician, the term includes any medical care provider, including dentists, nurses, and therapists. As illustrated in Columbia Medical Center of Las Colinas v Bush, 122 S.W. 3d 835 (Tex. 2003), "following orders" may not protect nurses and other non-physicians from liability when committing negligent acts. Relying on vicarious liability or direct corporate negligence, which was found in the case of Dany Decell, CEO, claims may also be brought against hospitals, clinics, managed care organizations or medical corporations for the mistakes of their employees.

Elements of the case

A plaintiff must establish all five elements of the tort of negligence for a successful medical malpractice claim.[7]

  1. A duty was owed: a legal duty exists whenever a hospital or health care provider undertakes care or treatment of a patient.
  2. A duty was breached: the provider failed to conform to the relevant standard care.
  3. The breach caused an injury: The breach of duty was a direct cause and the proximate cause of the injury.
  4. Deviation from the accepted standard: It must be shown that the practitioner was acting in a manner which was contrary to the generally accepted standard in his/her profession.
  5. Damage: Without damage (losses which may be pecuniary or emotional), there is no basis for a claim, regardless of whether the medical provider was negligent. Likewise, damage can occur without negligence, for example, when someone dies from a fatal disease.

The trial

Like all other tort cases, the plaintiff or their attorney files a lawsuit in a court with appropriate jurisdiction. Between the filing of suit and the trial, the parties are required to share information through discovery. Such information includes interrogatories, requests for documents and deposition. If both parties agree, the case may be settled pre-trial on negotiated terms. If the parties cannot agree, the case will proceed to trial.

The plaintiff has the burden of proof to prove all the elements by a preponderance of evidence. At trial, both parties will usually present experts to testify as to the standard of care required, and other technical issues. The fact-finder (judge or jury) must then weigh all the evidence and determine which side is the most credible.

The fact-finder will render a verdict for the prevailing party. If the plaintiff prevails, the fact-finder will assess damages within the parameters of the judge's instructions. The verdict is then reduced to the judgment of the court. The losing party may move for a new trial. In a few jurisdictions, a plaintiff who is dissatisfied by a small judgment may move for additur. In most jurisdictions, a defendant who is dissatisfied with a large judgment may move for remittitur. Either side may take an appeal from the judgment.

Expert testimony

Expert witnesses must be qualified by the Court, based on the prospective experts qualifications and the standards set from legal precedent. To be qualified as an expert in a medical malpractice case, a person must have a sufficient knowledge, education, training, or experience regarding the specific issue before the court to qualify the expert to give a reliable opinion on a relevant issue.[8] The qualifications of the expert are not the deciding factors as to whether the individual will be qualified, although they are certainly important considerations. Expert testimony is not qualified "just because somebody with a diploma says it is so" (United States v. Ingham, 42 M.J. 218, 226 [A.C.M.R. 1995]). In addition to appropriate qualifications of the expert, the proposed testimony must meet certain criteria for reliability. In the United States, two models for evaluating the proposed testimony are used:

The more common (and some believe more reliable) approach used by all federal courts and most state courts is the 'gatekeeper' model, which is a test formulated from the US Supreme Court cases Daubert v. Merrell Dow Pharmaceuticals (509 U.S. 579 [1993]), General Electric Co. v. Joiner (522 U.S. 136 [1997]), and Kumho Tire Co. v. Carmichael(526 U.S. 137 [1999]). Before the trial, a Daubert hearing[9] will take place before the judge (without the jury). The trial court judge must consider evidence presented to determine whether an expert's "testimony rests on a reliable foundation and is relevant to the task at hand." (Daubert, 509 U.S. at 597). The Daubert hearing considers 4 questions about the testimony the prospective expert proposes:

  • Whether a "theory or technique . . . can be (and has been) tested"
  • Whether it "has been subjected to peer review and publication".
  • Whether, in respect to a particular technique, there is a high "known or potential rate of error"
  • Whether there are "standards controlling the technique's operation".

Some state courts still use the Frye test that relies on scientific consensus to assess the admissibility of novel scientific evidence. Daubert expressly rejected the earlier federal rule's incorporation of the Frye test. (Daubert, 509 U.S. at 593-594) Expert testimony that would have passed the Frye test is now excluded under the more stringent requirements of Federal Rules of Evidence as construed by Daubert.

In view of Daubert and Kuhmo, the pre trial preparation of expert witnesses is critical.[10] A problem with Daubert is that the presiding judge may admit testimony which derives from highly contested data. The judge may expand the limits contained in the "school of thought" precedent. Papers that are self-published may be admiited as the basis for expert testimony. Non-peer reviewed journals may also be admitted in similar fashion. The only criterion is the opinion of a single judge who, in all likelihood, has no relevant scientific or medical training.[11]

Many states also require that a certificate of merit before a malpractice lawsuit be filed which requires a report from a medical physician that the physician accused of negligence breached the standard of care and caused injury to the patient.

Damages

The plaintiff's damages may include compensatory and punitive damages.[12] Compensatory damages are both economic and non-economic. Economic damages include financial losses such as lost wages (sometimes called lost earning capacity), medical expenses and life care expenses.[13] These damages may be assessed for past and future losses. Non-economic damages are assessed for the injury itself: physical and psychological harm, such as loss of vision, loss of a limb or organ, the reduced enjoyment of life due to a disability or loss of a loved one, severe pain and emotional distress. Punitive damages are only awarded in the event of wanton and reckless conduct.

In one particular circumstance physicians, particularly psychiatrists, are held to a different standard than other defendants in a tort claim. Suicide is legally viewed as an act which terminates a chain of causality. Although the defendant may be held negligent for another's suicide, he or she is not responsible for damages which occur after the act. An exception is made for physicians. Although there exists no protocol or algorithm for predicting suicidality with any level of certainty, courts throughout the United States have found physicians to be negligent. Furthermore, damages are routinely assessed based on losses which would hypothetically accrue after the act of suicide.[14]

A 2011 study in the New England Journal of Medicine reported that 75% of physicians in "low-risk" specialties and virtually 100% of physicians in "high-risk" specialties could expect to face a malpractice claim during their careers. However, the authors also noted that the vast majority of malpractice claims did not lead to any indemnity payments.[15]

Most (73%) settled malpractice claims involve medical error. A 2006 study concluded that claims without evidence of error "are not uncommon, but most [72%] are denied compensation. The vast majority of expenditures [54%] go toward litigation over errors and payment of them. The overhead costs of malpractice litigation are exorbitant." Physicians examined the records of 1452 closed malpractice claims. Ninety-seven percent were associated with injury; of them, 73% got compensation. Three percent of the claims were not associated with injuries; of them, 16% got compensation. 63% were associated with errors; of them, 73% got compensation (average $521,560). Thirty-seven percent were not associated with errors; of them, 28% got compensation (average $313,205). Claims not associated with errors accounted for 13 to 16% percent of the total costs. For every dollar spent on compensation, 54 cents went to administrative expenses (including lawyers, experts, and courts). Claims involving errors accounted for 78 percent of administrative costs.[16][17]

A 2004 study of medical malpractice claims in the United States examining primary care malpractice found that though incidence of negligence in hospitals produced a greater proportion of severe outcomes, the total number of errors and deaths due to errors were greater for outpatient settings. No single medical condition was associated with more than five percent of all negligence claims, and one-third of all claims were the result of misdiagnosis.[18]

Male doctors have nearly two and half times increased odds of having medico-legal action taken against them than female doctors, a result consistent across many years and found internationally.[19]