While there are unfortunate results in medicine, not every such result ends in medical malpractice. The unfortunate result has to be as a result of the doctor or other medical care personnel acting below the standard of care. In fact, there are statutes in many jurisdictions that specifically set out what is required:
In any action for medical injury, the plaintiff shall have the burden of proving by affirmative evidence which must include expert testimony of a competent witness or witnesses:
(a) The standard of reasonable professional practice in the medical care provider’s profession or specialty thereof, if any, at the time the medical care in question was rendered; and
(b) That the medical care provider failed to act in accordance with such standard; and
(c) That as a proximate result thereof, the injured person suffered injuries which would not otherwise have occurred.
Medical malpractice is one of the few areas of the law that mandates that an expert witness be hired to testify that a medical provider has committed malpractice. This can be an expensive endeavor and can often require that you look outside of the state or region since many doctors do not want to testify against one of their colleagues. While there are expert witness services that advertise extensively online, it is recommended that a medical expert be found by referral and by researching physicians who have written journal articles in the area of specialty that you are seeking. Some cases may require two or more experts depending on what occurred. For example, it would not be unusual to need both a radiologist and an orthopedic expert if the matter involves an x-ray of a bone, and the orthopedic injury resulted from a misread of the x-ray. Since experts can charge upwards of $500-$700 per hour to review a malpractice case, the costs of finding out whether you even have a case to pursue can be significant, and if you do end up pursuing a case, the cost of bringing experts to trial will become very expensive. This is the main reasons why most lawyers will look at these cases very carefully before agreeing to handle them, and a discussion should take place with your lawyer as to who is responsible for paying these expenses.
The other major requirement as noted in (c) above is that the person suffered injuries as a proximate result of the malpractice that would not otherwise have occurred. If the doctor did not act properly, but this did not result in injuries, then the law states that there is no malpractice. Or, if for example, a doctor did not properly diagnose a serious disease, but if the disease was fatal even if earlier diagnosed, then there is no malpractice under the law. Finally, even if there are injuries that resulted from the doctor not acting in accordance with the standard of care, but those injuries are modest in nature, the expense of pursuing the action may not be worth it.
In my next blogs dealing with medical malpractice, I will discuss areas of medicine that can often lead to medical errors and lawsuits, and legal procedures that may assist in handling these matters more cost effectively.