Litigating a medicalmalpractice case is one of the most challenging tasks a trial lawyer can undertake. On the one hand, the injured patient’s mental, physical, and financial well-being often depend on the outcome of the litigation. On the other hand, the physician naturally perceives the lawsuit as a threat to his reputation and a challenge to his knowledge, training, and skill; allegations of professional negligence strike at the core of his sense of self-worth. For both parties, large sums of money are at stake. Usually, the factual and legal issues are complex and the litigation expenses enormous (see Chapter...

The attorney’sprimary responsibility in a medical malpractice case is to learn enough medicine to assess whether the conduct of the treating doctors and nurses caused the plaintiff’s injuries and, if so, whether these health care providers were negligent. Counsel for each side must depend on experts to help sort through the mass of technical information related to the care that the plaintiff received. Often the experts disagree, placing the burden on the attorneys to judge which expert is most credible. Moreover, expert opinions are frequently premised on the attorney’s ability to prove certain facts. As counsel obtains more information...

At first blush,the law applicable to medical malpractice claims seems nothing more than the basic legal rules and precepts applicable to every member of the community. Further examination of the rules as applied to health care professionals, however, reveals some significant variations that can make the difference between winning and losing a medical malpractice case. These cases rely on the legal theories that a doctor was negligent or failed to obtain an informed consent. A theory that a doctor or hospital should be held strictly liable for a bad result, regardless of whether negligence occurred, has been invoked but...

Few physicians todaydevote their careers to the general practice of medicine. Indeed, ifgeneral practicemeans a practice in which a physician sees and treats patients without regard to their age or chief complaint, general practice by a single physician probably occurs only in remote rural areas where the population lacks access to specialists. Certainly, emergency room physicians, family physicians, and pediatricians see patients with a wide variety of ailments, but each makes claim to specialized knowledge and training beyond the minimum required to obtain a medical license.

Recognizing the extent of medical specialization, most attorneys who depose doctors...

Before the1970s the medical care decision-making process reflected few value conflicts. Physicians dominated the process. The doctor’s profit motive usually remained below the surface. Making the patient well stood foremost in everyone's mind as the dominant value. Accepted medical practice guided medical decisions and answered most ethical questions. Physicians and family members expected patients to comply with the doctor’s advice without challenging it or seeking second opinions. No one would have thought of suggesting that a patient might be denied an appropriate diagnostic procedure or treatment because it cost too much.

Today’s medical decision-making model reflects a much more...

Since the early1970s, insurance companies, medical organizations, and bar associations have battled over the need to reform the law governing medical malpractice claims and the process used to resolve such conflicts.¹ Today that battle continues in the midst of a larger struggle concerning fundamental reform of the health care system as a whole. Proposals for reform of the health care system include encouraging competition for managed care, creating a one-party payer system similar to the one used in Canada, rationing the type of care for which the government or insurer will pay, as in Oregon, and establishing a national...

Predicting the potentialdamage award in a medical malpractice case is a hazardous business. Indeed, much of the process is subjective. The goal of this chapter is to identify the multitude of considerations that influence the presentation of the case on damages and the ultimate verdict.

Counsel for each party in a medical malpractice case should evaluate the potential damage award from at least two different perspectives: first, what Award will the Law Permit in light of the evidence? And second, what award is likely to be made in light of the law, the evidence, and the dominant psychological and...

Punitive damage claimsprovoke emotional responses from litigants, lawyers, and the courts. Hurt and anger often fuel a plaintiff’s quest for punitive damages. On the other hand, a punitive damage claim impugns the motives and threatens the reputation of the defendant. And because a punitive damage award must usually be paid from the personal assets of the defendant and not by his insurance company, he will fear losing the material things for which he has worked hard.

Many judges dislike punitive damage claims. Judicial hostility is sometimes cloaked in semantics, in a description of the egregious conduct that must be...

Medical recordspresent a lawyer with three recurring problems: acquiring a complete and legible copy in a timely manner, interpreting the medical terminology, evaluating the medical-legal significance of the information. Ordinarily, defense counsel has less difficulty obtaining a complete, legible copy of the records than plaintiff’s counsel since the defendant usually has immediate access to the records reflecting the care rendered by him. If it becomes necessary to review the records of another doctor or a hospital, however, defense counsel will need an authorization from the plaintiff for release of the records. If the plaintiff refuses the requested authorization, a...

Most medical malpracticecases involve factual issues that are beyond the common knowledge of the jury. Accordingly, both parties must present expert testimony to explain and support their positions. To establish a case warranting submission to a jury, the plaintiff must present the testimony of a doctor or nurse to inform the jury of the standard of care customarily followed in the circumstances and the probable cause of the plaintiff’s injuries. The defendant must counter the plaintiff’s theories with the testimony of his experts concerning standard of care and causation.

Selecting and presenting the testimony of an expert is the...

Modern medical therapyrelies heavily on prescription drugs. This development began after World War II and reflects the impact of the so-called miracle drugs: antibiotics, vaccines, and local anesthetics. These therapeutic drugs radically changed the world’s approach to medical care, providing new weapons to prevent diseases and to treat them if they occurred. Antibiotics enabled health care providers to fight infections before and after they developed. Vaccines provided protection against many crippling or fatal diseases. Safe and effective local and general anesthetics allowed the development of many new surgical procedures that had been unavailable earlier because of their inherent pain...

Today’s health caresystem relies heavily on specialists providing medical care within a hospital setting. Medical care frequently involves the administration of therapeutic drugs as well as the use of a variety of devices and equipment for diagnostic and therapeutic purposes. This pattern of health care delivery makes it difficult to determine the person or persons who may be responsible for a particular act of malpractice. Extensive investigation must take place in most cases to support a reliable assessment of the roles played by each of the parties who treated the patient. Even then responsibility may be shared among multiple...

Preparing for trialrequires a systematic review of the information and legal theories developed during the discovery process and careful construction of a trial strategy in light of this information. Equally important is psychological preparation. Counsel and parties must expect to try the case rather than settle it. In addition, to prepare for trial effectively, counsel needs to step away from the mountain of factual, legal, and medical information and attempt to gain a perspective on how the case will look to someone who has not lived with it for years.

One of the most difficult challenges for trial counsel...