I, Richard M. Katz, have been in practice for about thirty-five years and for most of those thirty-five years I have handled medical malpractice claims along with other personal injury claims. Medical malpractice claims present some unique challenges because of complex medical issues. As well, judges and juries tend to favor doctors, nurses and hospitals over injured patients in medical malpractice lawsuits. Under the best of circumstances medical malpractice cases are difficult to win.
An injured patient must prove his or her claim in a medical malpractice action. That is not easy. The news medial will often cover stories about folks whom juries have awarded millions of dollars in a medical malpractice lawsuit. However, the new media rarely covers stories about all of the injured patients who lost their medical malpractice cases. The sad fact is that more than 80% perhaps as high as 90% of the medical malpractice cases going to trial in California results in the doctors, nurses or hospitals winning. Most of the medical malpractice lawsuits that go to trial results in defense verdicts, i.e., the doctors, nurses and hospitals prevailed / won the trial.
There are many roadblocks to successfully bringing a medical malpractice case. The roadblocks that must be overcome include, proving the healthcare provider’s (doctor, nurse, hospital, etc.) negligence (i.e., showing that the healthcare provider failed to act as a reasonably careful doctor, nurse, hospital, etc. in the same or similar circumstances, convincing the defendant or ultimately a judge or jury that the defendant was negligent, retaining a qualified attorney to represent you
Proving the Healthcare Provider’s (Doctor, Nurse, Hospital, Etc.) Negligence
In order to “prove” negligence in a medical malpractice case an injured patient must show that there was an existence of a duty owed by the health care professional to the patient (for example, a doctor/patient relationship-this is usually not difficult ); The applicable standard of care, and the health care professional’s deviation from that standard, which is a breach of the duty owed the patient (this can be challenging and usually requires expert opinion); A causal connection between the health care professional’s deviation from the standard of care and the patient’s injury (this at times can be quite challenging, depending upon the circumstances).
A patient and their lawyer are often presented with nothing more to base the patient’s claim on then the healthcare provider’s own notes, which often is not only cryptic but self-serving. There is an old saying “if it is not in the chart it did not happen.” This can be both good and bad but either way one is often stuck with whatever the records show. Very few healthcare providers are going to accept responsibility, at least initially, for a mistake they have made. While information on the internet and medical textbooks may list multiple ways for treating a specific injury, illness, or disease an expert is usually necessary to establish negligence, breach and causation.
To prevail a patient and their lawyer must show that the healthcare provider’s (doctor, nurse, hospital, etc. ) conduct fell below an accepted standard of medical care. We generally need expert testimony to establish the standard of care. As well, expert testimony is required to show how the healthcare provided failed to meet the standard of care.
As side from negligent treatment or care, the healthcare provider can be held responsible for the negligent prescription of a medication or medical device if the healthcare provider ignored prescription recommendations such as prescribing an incorrect medication or dosage or a contraindication that resulted in injury to the patient. The healthcare provider has the duty of informing the patient of the risks and side effects of a medication or medical device they prescribe. As well, asking the patient questions to obtain all relevant information before prescribing medication or medical devices.
In many situations a healthcare provider fails to obtain a patient’s “informed consent” before administering a procedure or treatment is a form of medical negligence, and may even give rise to a cause of action. In California the informed consent law is challenging because it applies a “reasonable person” standard. The law essentially requires the following:
“A patient’s consent to a medical procedure must be “informed”. A patient gives an “informed consent” only after the healthcare provider has fully explained the proposed treatment or procedure.
The healthcare provider must explain the likelihood of success and the risks of agreeing to a medical procedure in language that the patient can understand. The healthcare provider must give the patient as much information as [he/she] needs to make an informed decision, including any risk that a reasonable person would consider important in deciding to have the proposed treatment or procedure, and any other information skilled practitioners would disclose to the patient under the same or similar circumstances. The patient must be told about any risk of death or serious injury or significant potential complications that may occur if the procedure is performed. A healthcare provider is not required to explain minor risks that are not likely to occur.”
The problem is if a healthcare provider fails to explain a risk but most folks would go forward with the treatment even if they knew the risk then a patient cannot win on that theory. By way of example a doctor fails to tell a patient that a colonoscopy can cause a puncture to the colon and a puncture occurs and had you known about the risk you would have declined the procedure, you are unlikely to win because most reasonable patients would have the procedure notwithstanding the risk.
The above is only some of the challenges an injured patient and his lawyer face.
A Patient Needs to Convince the Judge or Jury That the Healthcare Provider Was Negligent
Juries in California are tough on medical malpractice claims. Some jurisdictions are worse then others. The fact is that Healthcare providers win more than 80% of the time of the medical malpractice cases that go to trial. Many legal experts and trial lawyers differ on why this is so, but often times when something becomes too confusing the judge or jury defaults to the healthcare provider. The healthcare provider often times will explain “they did the best they could” and / or “there is more than one right way to provide care” and/or “that not all patients have a good outcome” or “there was something unusual about the patient.” I have heard it all and then some. Can you imagine some slams their car into the back your car and claims “they did the best they could.” Or someone runs a red light hits your car and then claims “if you had a different color car, they would have seen it”.
Nevertheless, judges and juries often give the healthcare provider the benefit of the doubt.
Retaining An Attorney
Nevertheless, healthcare providers are, at times, negligent. In 2010, the Office of Inspector General for Health and Human Services said that bad hospital care contributed to the deaths of 180,000 patients in Medicare alone in a given year. A study in a recent issue of the Journal of Patient Safety stated that between 210,000 and 440,000 patients each year who go to the hospital for care suffer some type of preventable harm that contributes to their death, the study says.
If the study is correct and there is no reason to believe it is not, that would make medical errors the third-leading cause of death in America, behind heart disease, which is the first, and cancer, which is second.
Therefore if you believe that you were the victim of medical malpractice, you should contact a qualified medical malpractice lawyer immediately to learn your legal rights. But understand the challenges that your potential claim faces. Most medical malpractice attorneys offer at least an initial free consultation. Avail yourself of this valuable service. If you or someone you love has been injured because of medical malpractice / medical negligence please give me, Richard M. Katz, a call. Our office is ready to help you. Please call 626-796-6333.
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