Case Study

Defending a Medical Malpractice Claim If you're a medical malpractice defendant

It should come as no surprise that most doctors have a real motivation to help patients, and they take great pride in their work. So, facing a medical malpractice lawsuit can be an extremely frustrating experience for a doctor, in terms of their personal liability and their professional reputation. Not to mention that doctors want to spend their time treating patients, not answering questions from lawyers who have never set foot in medical school.

This article will answer three basic questions about medical malpractice defense:

How should the doctor react to being sued?
What will the doctor’s obligations be as the case advances?
What arguments can a doctor make in defense?

How Should the Doctor React to Being Sued?

While it's no picnic when it happens to you, it may help to know that medical malpractice lawsuits are very common. According to a study by the American Medical Association (titled "Medical Liability Claim Frequency: A 2007-2008 Snapshot of Physicians") 42% of doctors had faced a malpractice claim at some point in their careers. The same report also found that 65% of medical malpractice claims are dropped, dismissed, or withdrawn. So, being sued for malpractice certainly does not mean that the doctor did anything wrong or will be held liable for medical negligence.

It is important that the doctor have patience and allow the lawsuit process to work. Many medical malpractice cases last 2-5 years. That can be a long time for a malpractice claim to be hanging over a doctor’s head, but there is little a doctor can do to accelerate the process.
What are the Doctor’s Obligations as the Case Advances?

Assuming the doctor carries medical malpractice insurance, the insurance company’s lawyer will handle most of the heavy lifting throughout the case, but there are four major things that the doctor should expect to do during the course of the case.

First, the doctor will have a discussion with the insurance company’s lawyer. The doctor should give a full candid account of the circumstances of the patient's case, the treatment provided, and any other interactions between the doctor and the patient. In some cases, this conversation may occur several months or even a few years after the doctor treated the patient. After that length of time, it is common for the doctor’s memory to be patchy, so the doctor should not be concerned if he or she cannot remember all of the details. That's what medical records and treatment notes are for.

Second, the doctor will have to answer interrogatories. This is a series of questions written by the patient’s attorney requesting information about the patient's treatment and other aspects of the case. The insurance company’s lawyer will draft the final answers, but the lawyer will probably ask the doctor to assist in providing information to ensure accuracy.

Third, the doctor will be deposed. The doctor will meet (usually in the conference room at a law firm or at the doctor’s office) with the lawyers from both sides and a court reporter. The lawyers will ask the doctor questions under oath (with the patient’s lawyer doing most of the questioning). The court reporter will record the answers, creating a transcript of the deposition. Depositions can take several hours, depending on the complexity of the case.

Fourth, if the case goes to trial, the doctor will probably testify in front of the jury.
What Arguments Can the Doctor Make in Defense?

Three of the most common defense strategies in medical malpractice cases are:

rejection of expert testimony
reduction or elimination of damages, and
absence of causation.

Rejection of Expert Testimony.

The defendant might argue that the plaintiff’s expert is not qualified to express an expert opinion on a particular topic, or that the expert’s opinion is not sufficiently based on accepted scientific principles to be considered reliable.

If the defendant convinces the judge that the plaintiff’s expert is insufficiently qualified or that the expert’s testimony is unreliable, the judge will prevent the expert from testifying. In most cases, that decision will prevent the plaintiff from proving their case.

Reduction or Elimination of Damages.

In some situations, a doctor might be able to ignore the issue of whether a mistake was made and focus completely on whether the patient was harmed. If the patient cannot show any significant harm, the doctor might technically lose the case while only having to pay minimal damages.

Absence of Causation.

This argument can arise in cases involving a missed diagnosis, where the doctor initially failed to identify a terminal condition. If it's true that if the doctor had properly diagnosed the patient, the death would have occurred anyway, and there was no treatment that would have improved the patient's condition or provided comfort, it may be possible to eliminate any causal link between the doctor's error and any actual harm resulting from it.
In the sections that follow, this article will discuss three of the most common defense strategies in medical malpractice cases:

rejection of expert testimony
reduction or elimination of damages, and
absence of causation.

Rejection of Expert Testimony

Part of a judge's job during a trial is to be a "gatekeeper" for expert testimony. Before an expert medical witness can testify in front of a jury, the judge must decide two things:

whether the expert is qualified and
whether the expert’s testimony is reliable.

An Expert’s Qualifications. A judge may look at an expert’s resume and determine that the expert does not have the necessary education or experience to speak with authority on the topic at issue. This is a fairly rare determination in medical malpractice cases though, because a plaintiff’s lawyer will generally attempt to find the most qualified expert possible, in order to most effectively impress and persuade the jury.

Reliability of an Expert’s Opinion. Even if an expert has sufficient qualifications to testify, a judge may still bar the testimony if the expert’s opinion is not considered reliable. The courts in any given state will use one of two methods of determining whether expert testimony is reliable: the Daubert Test or the Frye Test. The nuances of these tests are too complex to explore here, but generally speaking, the Daubert Test contains strict requirements that must be met for testimony to be admissible, whereas the Frye Test is more easily satisfied.

Regardless of what standard of admissibility a court will apply, a defendant in a case might attack the admissibility of the plaintiff’s expert’s testimony by arguing that the expert’s opinion is not based on sufficiently established and generally accepted scientific principles.

If the defendant convinces the judge that the plaintiff’s expert’s testimony is unreliable, the judge will prevent the expert from testifying. In most cases, that decision will prevent the plaintiff from proving negligence. If the plaintiff cannot prove negligence, the defendant will prevail in the case.
Reduction or Elimination of Damages

No matter how egregious of a mistake a doctor makes, the doctor will only be liable to the extent that a patient was harmed by the mistake (assuming punitive damages are not applicable).

Imagine a doctor performs a shoulder surgery on a patient to repair a torn rotator cuff. The surgery was expected to take one hour, but during the surgery, the doctor made a mistake (arguably one that rose to the level of medical negligence), causing the surgery to last more than four hours. The patient decides to sue the doctor for medical malpractice, claiming that as a result of the mistake, the patient has limited mobility and can no longer lift his right arm above shoulder level. But the doctor’s malpractice insurance company hires a private investigator, who films the patient playing tennis (right-handed) and lifting heavy boxes above shoulder level while helping a friend move. (Note: It's perfectly legal for an insurer to hire a PI to observe a claimant in this manner, and it happens more often than you might think.)

In this scenario, the doctor could admit negligence and still essentially win the case by demonstrating that any damage to the patient was minimal.
Absence of Causation

A defendant in a medical malpractice case might also argue that any harm that the plaintiff may have experienced was not actually caused by any mistake made by the doctor. For example, a patient might visit a doctor, complaining of severe headaches. The doctor fails to spot red-flag symptoms, and commits a treatment error by failing to order the right tests, telling the patient that the headache is just a migraine, and prescribing a painkiller. As it turns out, the patient is in the advanced stage of brain cancer, and the condition is incurable and largely not treatable. The patient dies one week later.

In this case, the patient’s family might sue the doctor for medical malpractice. The family will argue that the doctor negligently failed to diagnose the patient, and the patient suffered harm (death). The doctor will defend by arguing that the negligence did not actually cause the harm. The patient had an incurable form of brain cancer. Even if the doctor had properly diagnosed the patient, the death would have occurred, so the causation element is missing. Of course, the case wouldn't proceed in such a black and white fashion in the real world. The deceased patient's family could argue that the doctor's failure to spot the problem did in fact cause physical discomfort (and pain and suffering damages), since the patient could have been made more comfortable through palliative care even though the condition was terminal.

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