I. Introduction to Medical Malpractice Law
II. Medical Malpractice
III. Defenses
IV. Proximate Causation
V. Informed Consent
VI. Medical Experts
VII. Conclusion
I. Introduction to Medical Malpractice Law
It is likely that no other field of civil litigation has done more to improve
the life style of American citizens than medical malpractice litigation. Health
care in the United States is among the best in the world, and this is in large
part due to the scrutiny placed upon the medical field by malpractice
litigation. The law of medical malpractice is an outgrowth of the general body
of negligence law It is applicable to all suits against medical professionals
for negligence in the rendition of medical services to their patients. At common
law, the duty of due care by medical professionals was deemed to have arisen out
of the contractual obligations which are created when a patient contracts with a
health care provider to perform health care services. Even though some
jurisdictions still retain common law contractual concepts in dealing with
medical malpractice issues, medical malpractice is now generally considered to
be an independent action in tort, rather than in contract.
II. Medical Malpractice
In the same sense that the ordinary body of negligence law defines negligence as
the doing or the failure to do something that a person of ordinary prudence
would or would not do under the same or similar circumstances, the law of
medical malpractice defines medical negligence as the doing or the failure to do
something that a reasonably prudent health care professional in that field would
or would not do under the same or similar circumstances.
In negligence law the "reasonable man" standard has been created to
evaluate the conduct of the defendant who has been accused of negligence. In
medical malpractice law the fictional "reasonably prudent health care
provider" standard has been created. It has been argued that the
"reasonable man" standard is objective, in the sense that it is a
standard applicable to all human beings, whereas the "reasonably prudent
health care provider" is more subjective, in that it allows the medical
profession to define the standard by which its conduct will be judged, and that
standard may fluctuate over periods of time as short as months, depending on
available technology.
On the other hand, the law holds even medical professionals to certain minimum
requirements of care, and evidence that few people in a given medical field
exercise caution in an area where caution should be exercised would not preclude
a finding of medical negligence. In medical malpractice cases the plaintiff must
establish through expert testimony the standard of care required of
professionals in the field of the defendant and that the defendant breached or
failed to adhere to that standard of care, thereby causing the plaintiff's
injury.
A negative result in medical treatment in and of itself does not mean that the
defendant committed malpractice. Medical treatment carries with it no guarantee
of a successful outcome. In many medical procedures there are risks which cannot
be avoided even if the health care professional exercises the greatest caution.
These are called unavoidable risks. On the other hand, even risks which are
unavoidable even when the greatest care has been exercised, may in a particular
case, be shown to have resulted from lack of due care by the health care
professional.
III. Defenses
The standard legal defenses of contributory negligence and assumption of the
risk are generally considered to be applicable in medical malpractice cases,
although by the very nature of the superior knowledge of the health care
professional over that of the patient, there are probably less instances where
these defenses can be effective.
In terms of factual defenses, health care professionals raise a number of
arguments in opposing malpractice claims, several of which have little merit,
but all of which create significant obstacles to a plaintiff. Some of these
arguments include:
- The decision of the health care provider was a judgment call, within
accepted medical standards.
- The treatment by the health care provider was within an acceptable
alternative form of treatment.
- Health care providers are people. No one is perfect. They are fallible and
make mistakes, and making an innocent and well- intentioned mistake of
judgment is within accepted standards.
Although this argument is sometimes raised, it is without merit. The
law's fiction of a "reasonable physician" standard assumes that
mistakes will be made, and they are included within the meaning of
negligence. By analogy, drivers are not perfect and sometimes are
inattentive, but that doesn't mean that a driver who takes his/her eyes off
the road and causes an accident is not guilty of negligence.
- The absence of any notation in the medical record specifically showing the
error demonstrates that the plaintiff cannot prove what happened.
Rarely is the mistake of a physician explicitly revealed in the
physician's medical record. Circumstantial evidence is a legitimate way to
prove medical negligence, particularly where one would not expect to find an
explicit confession of negligence in the record. Despite the obviousness of
this point, defendants often argue that there is an absence of evidence of
negligence.
- The plaintiff's ultimate outcome in terms of medical difficulties cannot
be shown to have been affected by the malpractice.
- This is the way I and everyone else I know in my field do it.
This assertion is often interjected by the testifying physician to
contradict the plaintiff's expert's definition of the standard of care. The
plaintiff cannot produce every physician to testify to the way things are
done, and must rely on the testimony of his or her expert as well as trial
court rulings to combat this assertion.
IV. Proximate Causation
Just as in negligence law, a plaintiff in malpractice litigation must show that
the damages were proximately caused by the malpractice of which the defendant is
accused. Unlike a simple accident case, most plaintiffs are already injured or
ill at the time they are victimized by medical malpractice. Therefore, the
plaintiff and his/her expert must separate out the damages that would have
resulted even if the plaintiff had received appropriate medical care from the
damages that actually resulted with the addition of inappropriate medical care.
It is often difficult for the victim, who is afflicted with serious medical
problems, to appreciate the requirement of the law that the plaintiff prove that
the malpractice worsened or failed to stem a worsening of his/her medical
condition. In addition, causation must be proved to a reasonable degree of
medical probability, and mere possibility is generally not sufficient. If all
the testimony shows is that a given outcome might (as opposed to "probably
would") have been avoided by a particular treatment, there is generally a
failure of proof.
V. Informed Consent
The doctrine of informed consent is a unique area of malpractice litigation. It
does not follow strict negligence principles, in that the plaintiff need not
show that the health care provider was negligent in failing to obtain his/her
consent to treatment. In general, the law grants to the conscious patient the
right to choose whether to obtain medical treatment and requires that a health
care practitioner provide the patient with accurate information as to diagnosis,
the nature of the proposed treatment, any risks associated with that treatment,
alternatives to that treatment along with their associated risks, and the risk
of no treatment. The failure to provide that information is, in and of itself, a
violation of the patient's rights. Informed consent does not involve a question
of the standard of care within a particular medical field, and there is no
requirement that a plaintiff provide expert testimony that reasonably prudent
health care providers within that field provide that information to their
patients. However, expert testimony may, nevertheless, be required to show the
nature of the risks and the alternatives to treatment.
A plaintiff must show not only that his/her rights were violated by a health
care provider's failure to provide this information, but also that a reasonable
person in the position of the Plaintiff, without the benefit of hindsight, would
or would not have chosen the treatment at issue had accurate information been
given. It is important to note that this last requirement will not necessarily
be satisfied by testimony from the Plaintiff that he or she would or would not
have chosen the treatment in dispute. The fact finder, whether it be a judge or
a jury, is free to find, despite testimony from the plaintiff to the contrary,
that a reasonable person would have chosen to decline or accept the treatment in
dispute. For this reason, many violations of informed consent will not give rise
to good malpractice claims. If the risks are low (despite the fact that the
plaintiff, in hindsight, is now known to have fallen prey to that low risk) and
the treatment is reasonably necessary or desirable, the fact finder may well
conclude that even if the plaintiff had been properly informed of the risks, the
same decision would have been made by a reasonable patient in the plaintiff's
position.
It is important to distinguish between the consent form signed by many patients,
the doctrine of informed consent, and the concept of medical malpractice. The
fact that a consent form was signed is evidence of informed consent, but it is
not conclusive. Evidence may be introduced as to the contents of the form and
the time and circumstances of the signing. Furthermore, the fact that a consent
form mentions a particular risk or the fact that a physician advises the patient
of a particular risk, does not mean that the patient has consented to the
physician committing medical malpractice in bringing about the danger of which
the patient was warned. For instance, the fact that a patient is advised that
there is a danger of nerves or vessels being severed during a surgical procedure
does not relieve the physician of the obligation of performing the procedure in
a medically appropriate manner. The consent of the patient operates only for
those injuries which were not avoidable even with the exercise of appropriate
care. In such a case, the patient would be permitted to show negligence in the
performance of the procedure, despite the fact that he or she was warned of the
danger.
VI. Medical Experts
The requirement that expert testimony be presented expressing an opinion on the
standard of care within a particular medical field and on the defendant's breach
of that standard of care provides one of the most formidable obstacles to
plaintiffs in pursuing malpractice claims. Within the medical profession there
is what has been termed a "conspiracy of silence" among medical
professionals on providing testimony in malpractice claims. It is rare for local
physicians to testify against a colleague, even in large communities where it is
unlikely they know each other. Ostracism within the medical community against
those physicians with the courage to testify long ago resulted in an informal
code of conduct prohibiting physicians from testifying for plaintiffs in
malpractice claims. This forces plaintiffs' attorneys to seek experts from other
communities, often far away from the location of the trial. The limited number
of physicians willing to testify, even from distant locations, results in high
per hour expert witness fees, often between $400 and $500 per hour. The
defendant physician, on the other hand, usually has an unlimited pool of expert
witnesses from the defendant's own colleagues in the community, making it easy
to provide a defense, even when the malpractice is relatively clear. Insurance
companies, bolstered by a medical profession which believes it should be immune
from civil suits, while at the same time refusing to adequately police itself,
are often willing to fight to the finish on these claims. Settlements, if they
occur, rarely occur before the trial is imminent. The effect of this is that the
expense of expert witnesses and the cost of discovery in malpractice claims
often results in expenses in excess of $25,000 to the plaintiff. It is easy to
see why only the most egregious instances of malpractice causing only the most
serious injuries result in viable malpractice litigation. The hoax perpetrated
by the insurance industry to the effect that the courts are filled with
frivolous and petty malpractice claims is one of the most fraudulent and
malicious propaganda campaigns ever foisted upon the public. It is simply not
economically feasible for any plaintiff's attorney to prosecute any but the most
meritorious malpractice claims with the most seriously victimized plaintiffs.
VII. Conclusion
Pursuing a medical malpractice claim is an expensive and arduous undertaking.
Proving the claim requires expertise, resources and tenacity. Munley, Munley
& Cartwright has successfully prosecuted a large number of malpractice
claims, resulting in many large settlements and verdicts. If you have a question
about a possible case or would like a consultation, please feel free to complete
our electronic inquiry form on our contact us . Alternatively, we always welcome
telephone calls, and if you do call, you will be able to speak to an attorney
experienced in medical malpractice litigation. Our telephone number can be
accessed from our main page.
| Only an experienced lawyer who knows Pennsylvania's intricate medical
malpractice laws, the court system and individual rights can effectively
prove your physical and/or mental injury under state laws. Munley,
Munley & Cartwright's medical malpractice lawyers will evaluate your
case thoroughly and explore all potential sources of recovery. We
will help you decide your best course of action and we will develop the
best legal strategy for demonstrating your claim. Most cases are
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We have offices conveniently located in Stroudsburg, Carbondale,
Hamlin, Hazleton, Scranton, and Wilkes-Barre, PA. We have the benefit of the
local presence within and knowledge of the local legal communities where medical
malpractice matters are litigated. Our firm has built a reputation over 40 years
in the courts within within Lackawana, Monroe, Schuylkill, Wayne, Luzerne,
and Wyoming counties. Our goal is to provide exceptional legal services to
our clients.
If you or a loved one have been harmed by doctor error, misdiagnosis, or other
form of medical negligence, you may have a medical malpractice claim. You could
be eligible to receive compensation for the damages caused to your family. 'The
Family of Lawyers' at Munley, Munley & Cartwright are experienced, and
successful, medical malpractice litigators - we fight to protect the rights of
patients.
Contact us now for a free claim evaluation. 1-800-318-LAW1
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