How Plaintiffs Win Their Cases

Sam Rosenberg, JD; Leigh Page

Disclosures

January 01, 2017

Key Factors in a Malpractice Lawsuit

The trauma of being sued for medical malpractice can linger for many years after a lawsuit is resolved. In a 2015 Medscape survey[1] of physicians who had been sued, 26% of men and 36% of women indicated it was "one of the worst experiences of my life" and another 20% of both sexes said it was a "disruptive and humiliating" experience.

Lawsuits can lumber along for years, putting defendants under constant uncertainty and dread. In the Medscape survey, a physician whose case lasted more than 3 years commented that these were "years of agonizing about the potential for a catastrophic outcome, loss of license, practice, etc."

Even winnable lawsuits, however, may not be a slam-dunk for doctors.

Keep in mind that most lawsuits will be dropped without any payment at all. Estimates of meritless lawsuits vary widely, but a 2010 analysis[2] by the American Medical Association found that almost two thirds of medical malpractice lawsuits are dropped, dismissed, or withdrawn.

Even winnable lawsuits, however, may not be a slam-dunk for doctors. A case can raise serious questions about treatment of the patient, and the defense will have to counter them to win.

Ultimate victory in these cases will depend to a great extent on you. You will have to work closely with your attorney, study key documents in great detail, and behave in a reassuring and responsible manner in all encounters.

What Plaintiffs Must Show

For plaintiffs to prove their case, they must show that the physician acted negligently, that this negligence resulted in injury, and that the injury resulted in damage. Here are those factors in greater depth.

Proving Negligence

This is at the heart of a malpractice suit. Plaintiffs have to prove there was a departure from accepted standards of medical practice.

The simple fact that there was a bad outcome does not mean the plaintiff wins the case. The plaintiff has to prove that the physician was negligent. Although juries may be moved by appalling injuries to the patient, ranging from irreversible brain damage to facial scars, the injury has to be caused by a departure from the standard of care.

The alleged negligence might be a simple mistake, such as a surgeon's slip of the hand during surgery, or neglect, such as delaying treatment for no direct reason or misdiagnosing a serious illness.

Not obtaining informed consent can also be the basis of a malpractice suit. It is now a widely accepted standard that patients have to be informed of the risks of a procedure. After all, if they were not told about the risks, they might not have agreed to the procedure.

In proving that negligence took place, plaintiffs have a relatively easy threshold to meet. They must only show that there is a "preponderance of evidence"-that it's "more likely than not" that malpractice took place.

This is an easier standard to meet than in a criminal case, where the prosecution must prove its case "beyond a reasonable doubt." To conceptualize the "more likely than not" standard, imagine weighing just a feather of evidence on a scale. Even if the feather tips the scale ever so slightly, the plaintiff wins.

That may sound like an impossible standard to meet, but in most medical malpractice suits, it can be shown that there was absolutely no negligence at all. The point to remember, though, is that even if there was just a hint of negligence, the doctor may lose the lawsuit. In these cases, the malpractice carrier may decide the suit is unwinnable and press for a settlement early on.

Negligence is also determined by the "reasonable person" standard—defined as conduct that falls short of what the average physician would do under the same or similar circumstances. Essentially, this is what expert witnesses on each side will be fighting over.

This standard means that the defendant is not expected to be TV's Dr House—a wunderkind who takes the most abstruse symptoms and arrives at diagnoses that no one else would have thought of.

Should you worry about being seen as just an average physician under this standard? Definitely not. To win a malpractice case, it's important that you always understand how talented you are and not get dispirited by allegations of incompetence. But it can also be comforting to know that under the "reasonable person" standard, you don't have to hit the ball out of the park to win the case.

Linking the Negligence to an Injury

Plaintiffs have to prove proximate cause—that deviation from the standard of care was the cause of the patient's injury.

Linking the Injury to Damage

In addition, plaintiffs have to prove "quantifiable proof of harm"—that damages occurred. Damages might include the cost of additional medical treatment; income that the plaintiff has lost or will lose by being unable to work; or that there simply was "pain and suffering," which will be discussed later.

The Role of Expert Witnesses

The chief means of proving negligence—or, indeed, the absence of negligence—is through the testimony of the expert witnesses designated by both sides. Their testimony determines what the standard of care is and whether the doctor has met that standard.

To a great degree, a malpractice case becomes a battle of the experts. Doctors hired by each side present the medical standard of care, and how the physician did or did not breach that standard.

Hiring expert witnesses is one of the most expensive items of the case. An expert with a good track record can charge tens of thousands of dollars for one lawsuit. The average rate for a medical expert is $500 an hour for testimony and $350 for preparation of documents, according to a report[3] by SEAK Inc., which trains expert witnesses.

To a great degree, a malpractice case becomes a battle of the experts.

The testimony of competing experts for the plaintiff and defendant can be confusing for jurors who don't have any medical background and are trying to figure out the standard. You might ask: Why does malpractice litigation depend so heavily on warring experts? Wouldn't it be better to rely on a single standard of care, determined by the medical profession or some other mediating body?

Although that may make sense, it is not workable. Indeed, many specialty societies publish practice guidelines for specific diagnoses, based on the latest research, but these guidelines expressly state that they are not intended to establish a legal standard of care. The reason is that each medical case is regarded as unique. It could be an exception to the guideline. There could be extenuating circumstances where a blanket standard simply doesn't apply.

The expert witness is supposed to extensively study your particular case and decide what the specific standard should be. Furthermore, experts need to make complex medical information understandable to the jury. In fact, attorneys want medical experts whose testimony makes an indelible impression on the jurors—one that will be remembered when they make their decision. Quite often, jurors have cited the testimony of an expert as a key reason for their verdict.

The defense will hire one or more experts for the case. Choosing them is subject to the approval of your malpractice carrier. Your attorney and carrier have lists of experts by topic, but often they are open to your own suggestions. For example, you might remember a mentor from training who taught you to handle a case in the same way that you handled the plaintiff's case.

Because the expert's presentation can help you win the case, your attorney might even audition candidates for the job. Getting the right expert is that important.

A Note on Lawsuits With Multiple Defendants

Lawsuits naming multiple defendants are quite common, especially in venues where doctors work in teams, such as hospitals and surgery centers. In the Medscape survey, 47% of physicians who reported a lawsuit against them were in multiple-defendant lawsuits.

When filing a lawsuit, plaintiffs' attorneys often lack crucial evidence that could narrow down who is responsible for their clients' injury. Therefore, they may name a wide range of defendants and then pare them back as they get more evidence in the early phases of the case.

However, as the lawsuit progresses, plaintiffs' attorneys tend to cut back on the number of defendants. Having multiple defendants can be especially problematic for them at the trial stage. Usually, each defendant has a different lawyer. Each lawyer will participate in opening arguments, closing arguments, and cross-examining witnesses. This chorus of voices for the defense could overwhelm the lone voice of the plaintiff's attorney.

However, multiple-defendant lawsuits also pose a challenge for the defense. Each defendant might have to launch a two-pronged defense—against the plaintiff, and against other defendants who want to shift the blame to you.

Defendants have to truthfully answer questions posed to them, but they do not have to volunteer information.

Furthermore, multiple defendants' versions of events may clash, providing an opening for the plaintiff's attorney to shoot holes through your arguments. Dr X, for instance, may claim he told Dr Y about a test result, but Dr Y says that she was never told.

This kind of friendly fire could destroy the defense's case. It's important to keep conflicting testimony in check and display a united front. Defendants have to truthfully answer questions posed to them, but they do not have to volunteer information. In many cases, plaintiffs' attorneys just don't ask the right questions.

You May Have to Cover Payments of Other Defendants

When multiple defendants lose a malpractice case, the jury decides how much each defendant is at fault and apportions payments among them, on the basis of percentages of fault.

However, in states that call for "joint and several liability," the plaintiff can alter the apportionment of payments so that one or more defendants must pay more than the share the jury assigned to them. Plaintiffs alter apportionment when they believe it would be more difficult to get the money from some defendants. That is, these defendants may not have malpractice insurance or their insurance limit may not cover their full share of the award.

Plaintiffs who pay more than their share owing to joint and several liability have the option of suing the defendants who pay less to recover the funds, but this requires more litigation and the risk that they still won't recover the money.

Joint and several liability is applied to a wide array of litigation and frequently comes up in car accidents, which often involve more than one person at fault. Pure joint and several liability is fading away. It is still the law in just eight states, among them Massachusetts, Pennsylvania, North Carolina, and Maryland.

The aim is to make sure the plaintiff gets paid, but critics say pure joint and several liability is grossly unfair to defendants who may only have had a tangential relationship to the case. A defendant who was assigned just 5% of the fault, for example, could be forced to pay up to 100% of the award.

For this reason, most states have abolished joint and several liability or have limited it in several different ways. The doctrine no longer exists in Arizona, Connecticut, Florida, Georgia, Michigan, Tennessee, and Utah, for example. Repeal in Florida took place in 2006.

In California, Hawaii, and Nebraska, joint and several liability is limited to economic damages and does not apply to noneconomic damages.

In many more states, joint and several liability is limited to defendants whose fault is at or above a certain percentage. That level is 60% in New Jersey and Pennsylvania; 51% in Missouri and Wisconsin; 50% in Minnesota, New York, Ohio, and Texas; 30% in West Virginia; and 25% in Illinois.

There are yet further permutations of the doctrine in certain states. The law firm Wilson Elser provides a detailed listing[4] of each state's stance on joint and several liability laws, and the law firm Matthiesen Wickert & Lehrer provides a 50-state list[5] that is frequently updated.

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