It is most important that a plaintiff's medical malpractice lawyer screen cases and accept only those that are worthwhile.9 min read
Examples of Strong Malpractice Cases
It is most important that a plaintiff's medical malpractice lawyer screen cases and accept only those that are worthwhile. (In some states, the lawyer must certify that he has reviewed the matter with a qualified physician who states that the case is "meritorious.") Often the experienced lawyer can tell if the case is worthwhile from the first contact with the client. If it is not, the client should be informed immediately; the legal and medical systems should not be cluttered with the prosecution of worthless cases.
What Does True Medical Malpractice Consist Of?
True medical malpractice consists of negligent conduct that causes damage. There may be "malpractice" from a theoretical point of view, but if the conduct has not caused injury it is not a matter for the legal system. Sometimes there may be true "malpractice" but no residual damage. These are not strong cases. Juries are not all interested in a past history of damage; they do become interested when a plaintiff can show permanent injury. (1) The following are examples of such cases.
A patient underwent surgery with Halothane (fluothane) as the anesthetic agent, even though he had suffered previous biliary tract disease, which made the use of this anesthetic contraindicated. The patient died as a result of liver necrosis due to the effects of the anesthetic.
A trainee anesthesiologist ran out of oxygen before the operation was completed, causing the patient to suffer a fatal cardiac arrest.
A patient who underwent surgery for the repair of a pilonidal cyst under epidural anesthesia ended up with permanent uncontrolled movement of the lower extremities.
A patient underwent angiography (dye study of the arteries). The procedure was improperly performed, and the patient suffered brain damage.
A patient suffering from severe third-degree burns received inadequate and improper "burn therapy."
A child was born with a blood problem-Rh incompatibility-antibodies developed by the mother were destroying the blood in the baby. The attending physicians and hospital personnel failed to detect the child's condition.
A mother who was a diabetic gave birth to a child suffering from "large baby snydrome," and proper care was not excercised in delivering the child. The baby suffered a shoulder-brachial plexus injury.
A newborn baby with a metabolic disorder was improperly diagnosed and monitored by the attending physician and hospital nurses. The child suffered permanent brain damage.
A pregnant patient was improperly evaluated and monitored during pregnancy and labor; a difficult delivery ensued, and the baby was born with permanent brain damage.
A patient in labor suffered prolapse of the cord. An emergency Cesarean section was delayed, and the baby suffered permanent brain damage.
A patient's obstetrician was twenty minutes late, and delivery room nurses had to deliver her child. Then, although the infant was suffering from respiratory distress, a pediatrician was not called for several hours. The child is brain-damaged and requires life-long care. (See 6.4 herein.)
An attending physician failed to control a patient's diabetes and potassium deficiency; the patient died. Diagnostic ERCP - Negligent injection of dy
During an endoscopic retrograde cholangiopancreatography (ERCP), an inexperienced nurse injected the dye too forcefully and caused the patient to develop pancreatitis and other debilitating injuries. (See 4.3 herein.)
An accident victim's operation to repair a skull fracture was delayed twenty-four hours because the patient was fed a regular diet by nursing personnel, despite a physician's order that the patient was to receive nothing by mouth. The patient suffered permanent brain damage.
A patient underwent unnecessary surgery that resulted in severe pain for which addictive medication was prescribed. The patient became a drug addict.
A patient with a minor infection repeatedly was given sulfa medication without proper indication. The patient suffered Stevens-Johnson syndrome and permanent eye damage.
Errors in Diagnosis Generally
A child swallowed foreign metal material, and the attending physician failed to diagnose the trouble. The child died.
A child ingested an alkaline solution and at the hospital emergency room the physician used the wrong antidote. The child suffered permanent esophageal injury.
A child was born with congenitally dislocated hips, but the attending obstetrician and pediatrician failed to diagnose the condition. There was permanent disability.
A patient suffered from cancer, but the attending physician failed to diagnose the disease. The cancer spread and the patient died.
A patient ingested insecticide. His physician incorrectly diagnosed his condition, and failed to administer the proper antidote. The outcome was permanent brain damage.
A patient suffered from ulcerative colitis of the sigmoid colon. His attending physicians failed to perform a sigmoidoscope examination, and the condition progressed, finally requiring removal of a large part of the colon.
A patient suffering from appendicitis was misdiagnosed; the appendix ruptured, and the patient developed fatal peritonitis.
A woman had a cancerous condition of the leg, but an inaccurate diagnosis was made, and the patient was subjected to heat and ultrasonic treatments. The cancer spread and the patient died.
A patient who fell was taken to the hospital emergency room where a diagnosis of inebriation was made. The patient actually had a fractured spine and a severed spinal cord. The result was permanent paraplegia.
Following surgery, a patient complained of difficulty in swallowing and pain in his throat. His neurosurgeon mistook the symptoms for a sore throat and did not come to see him. The patient died the next day from aspirating vomit. (See 9.5 herein.)
An on-call ophthalmologist, without seeing the patient, diagnosed his eye pain, sensitivity to light, and nausea as sinusitis, when in fact it was acute angle closure glaucoma. The patient lost sight in the eye. (See 14.2 herein.)
A urologist who visually inspected and palpated a patient's suspected testicle tumor by surgically pulling it up through the inguinal canal concluded that it was only an inflammatory process when in fact it was malignant. (See 17.4 herein.)
A patient complaining of low back pain received an injection of an experimental enzyme into a vertebral disc, causing a neurological deficit.
An experimental implantation of a muscle in the spinal cord resulted in quadriplegia.
A patient suffered a fracture of the forearm that was improperly set, resulting in Volkmann's contracture and permanent disability.
Even though a patient with a hip fracture was under a physician's care, X-rays of the hip were not made for nine days, during which time the patient was allowed to walk. The patient suffered severe narrowing of the hip joint and permanent disability.
A patient with coarctation of the aorta underwent surgical repair, but the heart-lung by-pass machine was not in operation, and the patient suffered nerve damage and paraplegia.
A patient underwent an unnecessary heart catheterization and developed a blood clot in the leg that was improperly evaluated. The patient suffered permanent disability.
A patient suffered from hemorrhage of esophageal varices. He was not given prompt and adequate treatment, and he died.
A patient was admitted to a hospital for minor surgery and was allowed to suffer from an uncontrolled nose bleed, causing shock and irreversible brain damage.
During an hysterectomy the patient suffered a severance of the ureter that went unnoticed. The patient lost a kidney.
A patient underwent an hysterectomy and experienced severe bleeding. Later a severe infection developed, as did other disabilities that required additional surgeries and transfusions.
A child suffered from a kidney disorder. During surgery the wrong technique was employed and the kidney was lost. Laboratory erro
A laboratory report stated that a small growth removed from a patient's arm was simply a benign inflamed mole, when in fact it was malignant melanoma. (See 16.3.)
A child suffering from meningitis was sent home with a prescription that was inadequate and inappropriate. The disease progressed, and the child suffered permanent brain damage. Pap smear not followed-u
A Pap smear taken from a patient who was complaining of vaginal bleeding showed "extremely suspicious cells," but her HMO gynecologist did not follow up with a later test, and her cervical cancer was not diagnosed for another two years. Also, the laboratory report was insufficient. (See 16.3.)
A male patient suffering from an earache was given a diagnostic spinal tap, after which he experienced a painful erection of the penis (priapism). Treatment was delayed, and when finally accomplished, bandages were applied too tightly, causing the patient to suffer permanent partial impotency and strictures of the urethra.
A patient complained of low back pain and underwent removal of a disc. There was nerve injury, causing the patient severe pain. Thereafter he had to undergo various operations on the spinal cord, all of which were unsuccessful.
A patient was injured in a serious automobile accident and underwent back surgery. A tear in the dura was not diagnosed, and the patient developed meningitis and died.
A patient underwent low back surgery for the removal of a disc. During the approach, an instrument accidentally went through the spinal canal and into the patient's abdominal cavity. A major blood vessel was lacerated, which almost took the patient's life.
A patient underwent low back surgery following a minor fall. There was no objective medical evidence whatsoever to justify surgical intervention. The patient suffered emotional and physical disability, and attempted suicide.
A patient undergoing a cervical laminectomy suffered from a preexisting osteophytic condition that contraindicated extension or flexion of his head or neck more than ten to twelve degrees. The nurse anesthetist who intubated and anesthetized him was never told of this condition. Following the operation, the patient awoke from the anesthetic a quadriplegic. (See 1.2 herein).
During an elective lumbar laminectomy, an orthopaedic surgeon caused a tear in the dura that resulted in a complete evacuation of cerebrospinal fluid, which in turn caused a brainstem herniation and death. (See 8.6 herein.)
A patient underwent surgery for removal of a portion of the stomach. Anastomosis (joinder of parts) failed, and the patient required further surgery with prolonged disability.
Unnecessary stomach surgery was improperly performed, requiring three additional major operations, and a prolonged period of disability.
A patient underwent surgery for the repair of a duodenal ulcer. He suffered duct damage during the procedure, and required four additional operations. He was permanently disabled.
An orthopaedic physician improperly reduced a fracture and failed to take adequate precautions to prevent infection. When the infection occurred, it was improperly treated. The patient suffered extended disability.
A child suffered from a congenital defect in a lower extremity. Surgery was performed without proper drainage, and the child developed infection that went unnoticed. There was a delay in treatment, which necessitated further surgery, and resulted in permanent damage.
A tracheostomy was performed at an incorrect level, then the tube was improperly attended by hospital nurses. The patient suffered erosion of the innominate artery, and bled to death.
Transferred Without Consent
A patient suffered from pancreatitis. While being transferred to another hospital without consent, she suffered severe brain damage and remained in a comatose condition until she finally died several years later.
Treatment Delayed When Patient Not Accepted
An attending physician failed to diagnose coronary occlusion and the patient was not hospitalized. When the patient's condition deteriorated, and he finally was ordered into a hospital, the hospital refused to accept him. He was transferred to another hospital but did not survive. 25.6 Fee arrangement-Advancing costs.
Most medical malpractice cases for the plaintiff are handled on a contingent fee basis. Ordinarily this ranges from 331/3 to 50% of the recovery after costs are deducted "off the top."
Medical malpractice cases are such that usually there will be no settlement, nor even negotiations toward settlement, until the lawsuit has been filed and all essential depositions have been taken. In most well-prepared cases, there is virtually a trial through the discovery process before the actual trial in court. Therefore, "sliding scale" contingent fees (i.e., 25% before the suit is filed, 331/3/% after the suit is filed, 40% if the case goes to trial, 50% if the case goes on appeal, etc.) are not in vogue. But, of course, this is a matter of individual negotiation between you and your client, and should be in accordance with your local custom and practice. Some states now have statutes limiting contingent fees in medical malpractice cases. 2
After the first interview with your client, you may deem it necessary to have him or her sign a contingent fee agreement, subject, of course, to your right to withdraw should you find the case unmeritorious after additional investigation.
This fee agreement may provide, if permissible in your jurisdiction, that you have the right to advance costs on behalf of the client (and the right to be reimbursed). Ordinarily, the victim of medical malpractice has been plunged into a financial abyss, and is unable to undertake the cost of the investigation and prosecution of the case. The matter will move much more expeditiously if you are in a position to advance the necessary expense of investigation and litigation. These advances usually do not include any sums for medical care and treatment, however, and are limited to the necessary expenses for medical reviews and examinations, and costs of investigation, depositions and the like.
Excerpted from Medical Malpractice, Third Edition, 25
by David M. Harney
Copyright 1993, The Michie Company, 1-800-446-3410
All rights reserved. Personal use only. No distribution or republication without prior permission from the publisher.
Brought to you by - The 'Lectric Law Library
The Net's Finest Legal Resource For Legal Pros & Laypeople Alike.
The second element of a medical malpractice case is the hardest to prove. The plaintiff must show in the malpractice suit that the defendant was negligent because they failed to provide the same level of care that another doctor would have provided in a similar situation.What are the best defenses against a malpractice suit? ›
- Show Avoidable Consequences. ...
- Argue the Substantial Minority Principle. ...
- Cite Good Samaritan Laws. ...
- Challenge the Evidence. ...
- Demonstrate Standard of Care. ...
- Challenge the Causal Relationship. ...
- Assumed Risk.
- Misdiagnosis or delayed diagnosis.
- Failure to treat.
- Prescription drug errors.
- Surgical or procedural errors.
- Childbirth injuries.
1. Failure to diagnose or a delay in diagnosis. The most common allegation is failure to diagnose in a timely manner; the most common disease for this allegation is breast cancer.What are the 4 things that must be proven to have a successful negligence lawsuit? ›
- The existence of a legal duty to the plaintiff;
- The defendant breached that duty;
- The plaintiff was injured; and,
- The defendant's breach of duty caused the injury.
The injured patient must show that the physician acted negligently in rendering care, and that such negligence resulted in injury. To do so, four legal elements must be proven: (1) a professional duty owed to the patient; (2) breach of such duty; (3) injury caused by the breach; and (4) resulting damages.What conditions must all be present for a malpractice suit to be successful? ›
The injuries or losses that were suffered should have been reasonably foreseeable to prove that the doctor is guilty of malpractice. Proof that the doctor's medical treatment and accompanying behaviour caused the injuries or loss. Any consequences suffered need to be actual, demonstrable damages.What would be an important element in a malpractice case? ›
The Three Key Elements in a Medical Malpractice Case are: -Negligence -Proximate (immediate) cause -Damages Failure to prove any one of these key elements means that the plaintiff has not made their case. And there are no exceptions to that rule.Why are malpractice cases so hard to win? ›
It is difficult—and therefore expensive—to demonstrate to a jury that a healthcare provider acted unreasonably. It is often at least as difficult—and therefore at least as expensive—to demonstrate that the negligence, rather than the underlying illness or injury, is what harmed the patient.How much are most medical malpractice settlements? ›
Average award of medical malpractice lawsuits
The average medical malpractice settlement in the United States awards $242,000. Those that go to trial average around $1,000,000. Minor settlements only pay out-of-pocket expenses.
The researchers found that doctors win between 80% and 90% of cases taken to trial that have relatively weak evidence of medical malpractice. They also win approximately 70% of cases in which the evidence is considered to be borderline.How likely are you to win a malpractice suit? ›
The Chances of Winning a Medical Malpractice Lawsuit
Finally, juries returned verdicts favoring medical providers in approximately 50% of cases featuring strong evidence of negligence. In short, the legally and factually complex nature of a medical malpractice claim means the odds favor medical providers at trial.
Surgeons and obstetrician/gynecologists are the specialists who are most often sued by patients. If you're a doctor practicing medicine in the U.S., there's a good chance you will face a lawsuit during your career.Which doctor is sued most often? ›
General surgeons and obstetrician-gynecologists are at the greatest risk of facing medical liability lawsuits. They are three-and-a-half to four times likelier to be sued than pediatricians and psychiatrists, who are at the lowest risk of being hit with a suit.What physician is most likely to be involved in a lawsuit? ›
Specialists are sued more often than primary care physicians (62% vs 52%). Among specialists, surgeons (both general and specialized) are the ones most likely to be sued. Other specialties with high rates of malpractice claims include urology, otolaryngology, OB/GYN, radiology and emergency medicine.What 3 items must be proved to claim negligence? ›
Do you want to hold another party accountable for their negligent behavior? Doing so means you and your lawyer must prove the five elements of negligence: duty, breach of duty, cause, in fact, proximate cause, and harm.What are the 3 common defenses used against a negligence claim? ›
The most common negligence defenses are contributory negligence, comparative negligence, and assumption of risk. This article will discuss all three defenses, when they're used, and how they're established.What are the 3 key principles of defenses in a malpractice lawsuit? ›
The key elements of every type of medical malpractice claim, whether it's for birth injuries or injuries to children and adults, are: The physician owed the patient a duty of care. The physician violated the standard of competent care. The lack of competent care causes the patient injuries or death.Can I sue my doctor for emotional distress? ›
Can I sue a doctor for emotional distress? You can absolutely sue a doctor (or hospital) for emotional distress if the doctor was legally negligent. The compensation you receive is part of the damages in a medical malpractice case, which help compensate you for the emotional damage you suffered.What evidence do you need for medical negligence? ›
Other than your own personal medical records, you will need your own statement and those from any other witnesses as to the 'facts' of the negligence or extent of the injuries caused to your health.
Failing to evaluate a patient's medical history to identify possible complications. Failing to tell the patient critical preoperative instructions, such as not eating or drinking before the procedure. Administering too much anesthesia. Improperly placing the breathing tube.What are the four elements that determine if malpractice is present? ›
The Four Elements of Negligence Are Duty, Breach of Duty, Damages, and Causation.What are the 4 elements needed to prove negligence? ›
- A Duty of Care. A duty of care is essentially an obligation that one party has toward another party to exercise a reasonable level of care given the circumstances. ...
- A Breach of Duty. ...
- Causation. ...
The same types of acts may form the basis for negligence or malpractice. If performed by a non-professional person the result is negligence; If performed by a professional person the acts could be the basis for a malpractice lawsuit.How long do most malpractice cases last? ›
On average, most medical malpractice cases take 2-3 years to settle. However, if a medical malpractice case does not settle and goes to trial, the lawsuit can take up to 4 years. In cases where compensation exceeds $2 million, the timeline is often 5-15 years.Why do doctors get away with malpractice? ›
There are usually two reasons: The patient never learns that what the doctor did was malpractice. They never realize that their complication or injury was from medical errors, and. The time limit to file a lawsuit seeking compensation is gone.What percent of doctors make mistakes? ›
But despite all the advancements in modern medicine, studies suggest, doctors make the wrong diagnosis in 10 percent to 15 percent of office visits for a new problem. Errors occur, but it's not necessarily because doctors aren't smart or caring.What is the biggest payout in a lawsuit? ›
Number 1: The 1998 Tobacco Master Settlement Agreement
The 1998 Tobacco Master Settlement Agreement is also the biggest civil litigation settlement in US history. At USD246 billion, it is unlikely to be beaten any time soon. The case was brought against all the major tobacco companies by more than 40 US states.
Settlement negotiations during a medical malpractice case often involve alternative dispute resolution (ADR). ADR is an alternative to a trial that keeps a settlement private and out of court. It also allows the parties to remain in control of the outcome of the case.How are settlements calculated? ›
Settlement amounts are typically calculated by considering various economic damages such as medical expenses, lost wages, and out of pocket expenses from the injury. However non-economic factors should also play a significant role. Non-economic factors might include pain and suffering and loss of quality of life.
The Largest Medical Malpractice Settlements in U.S. History
Considered one of the largest settlements in recent history, a Florida jury awarded Allan Navarro $216.7 million ($100.1 million in punitive damages) after he was left brain-damaged and confined to a wheelchair after doctors misdiagnosed stroke symptoms.
- Obstetrics and Gynecology. OB-GYNs rank among the most frequent targets of medical malpractice lawsuits. ...
- Neurosurgery. ...
- Plastic Surgery. ...
- Orthopedic Surgery. ...
- Thoracic and Cardiovascular Surgery. ...
- Minimizing Your Malpractice Insurance Premiums.
- Hulk Hogan: Sued for malpractice involving unnecessary spine surgery.
- John Ritter: Family sued hospital for wrongful death.
- Andy Warhol: Doctors overloaded him with fluids.
- Michael Jackson: Doctor helped him overdose on a cocktail of drugs including propofol.
The Most Common Complaints in Medical Malpractice Claims
The report also found that medical errors relating to diagnoses consisted of 34.1 percent of medical malpractice actions, which makes it the most common claim.
Failure to diagnose occurs when a physician fails to diagnose a patient's condition. Misdiagnosis results from a doctor making an incorrect diagnosis. Lastly, a delayed diagnosis takes place when a medical professional significantly delays a correct diagnosis.What is the most common reason for malpractice suits that are successful? ›
Multiple studies have concluded that misdiagnosis is the most common cause of malpractice claims. Misdiagnosis includes failure to diagnose a medical problem that exists or making a diagnosis that is incorrect.Do doctors fear being sued? ›
Some 84% said the fear of being sued has resulted in them ordering more tests or making more referrals and 41% said it has resulted in them prescribing medication when not clinically necessary.Which state has the most malpractice lawsuits? ›
The states with the most medical malpractice suits over the past 30 years include California (138,110), Texas (122,197), New York (89,376). These are all among the most populated states in America, so it makes sense that they would present with a statistically higher volume of medical malpractice claims.Which states sue doctors the most? ›
According to NPDB data, New York had the largest amount of medical malpractice reports from 2009-2018, with 16,688 – followed by California and Florida, with 13,157 and 10,788 reports, respectively.What must a plaintiff prove to be successful in a suit for medical negligence? ›
As discussed in our previous articles, a plaintiff in a medical malpractice action must prove all necessary elements of a claim to succeed: the existence of a duty of care, that a breach of that duty occurred, and that the injury in question was caused by the defendant's breach.
|Biggest medical malpractice cases of 2019|
|Name of case||Amount awarded|
|G.S. v. Walker||$101 million|
|Jones v. Jones||$56 million|
|Murray vs. Valley Health System||$48.63 million|
It is very difficult to prove Medical Negligence. In Medical Negligence cases, there is a high standard of proof, involving complicated medical documents and reports and expert opinions. That is why it is important to consult an accredited specialist to assist you in your medical negligence claim.Why is it hard to prove causation? ›
A patient may incur health problems not connected to the defendant's past actions. In addition, certain unrelated medical problems experienced by the patient may be responsible for worsening the plaintiff's condition. These complexities can make causation particularly difficult to prove.What is the most important resource of information in malpractice cases? ›
The most important type of evidence in a medical malpractice case is your medical records. These can be extensive and include medication administration records, prescription records, nurses' notes, doctors' notes, diagnostic information, lab reports, treatment plans, discharge papers, and more.Who has the burden of proof in medical negligence case? ›
When it comes to bringing a medical negligence claim and proof, the burden sits with you. So it's up to you to show that the person you sue made the medical error and was responsible for your injuries and financial losses. Put into legal jargon, as we put it already – you henceforth have the “burden of proof.”What must be proven to rule a doctor guilty of negligence? ›
In order to successfully pursue a medical malpractice suit, the patient must prove the four (4) elements of medical negligence. The four (4) elements are (1) duty; (2) breach; (3) injury; and (4) proximate causation.What three tests are needed to prove negligence? ›
For any legal action arising from negligence, it must be proven that: The medical practitioner owed a duty of care to the patient, and; That duty of care was breached, and; The patient suffered harm as a result of the breach.What are the 3 necessary criteria for causation? ›
The first three criteria are generally considered as requirements for identifying a causal effect: (1) empirical association, (2) temporal priority of the indepen- dent variable, and (3) nonspuriousness. You must establish these three to claim a causal relationship.What are the two elements needed to prove causation? ›
“Causation” in Criminal Law is concerned with whether the defendant's conduct contributed sufficiently to the prohibited consequence to justify the criminal liability, which would be assessed from two aspects, namely “factual” and “legal” causation.What is the only way to prove one thing causes another? ›
Causation can only be determined from an appropriately designed experiment. In such experiments, similar groups receive different treatments, and the outcomes of each group are studied. We can only conclude that a treatment causes an effect if the groups have noticeably different outcomes.
- Duty: The duty of care owed to patients.
- Dereliction: Or breach of this duty of care.
- Direct cause: Establishing that the breach caused injury to a patient.
- Damages: The economic and noneconomic losses suffered by the patient as a result of their injury or illness.