Medical malpractice involves the negligence of a physician or surgeon, or anyone else in the business of providing physical and mental health care services. The error may be one in diagnosis, such as where the doctor misses or misinterprets (“misdiagnoses”) a condition as benign rather than the beginnings of a serious problem. Sometimes the error is obvious, such as when the surgeon mistakenly removes a healthy kidney rather than the diseased one. Sometimes the malpractice is more subtle, such as where the doctor fails to heed the warning signs of diabetes and treat the patient with medication and exhort her to check her blood sugar frequently, watch her diet, lose weight, and/or exercise more. Expert testimony of physicians or surgeons in the same field of medicine as the doctor you are suing are usually necessary to prove the degree (“standard”) of care and how the physician deviated from it.
Three elements need to be proved to be successful in a medical malpractice case:
Most good medical malpractice lawyers will not take a medical malpractice case unless he believes it is a meritorious case and is worth at least $500,000 or more. The reason for this limitation is a law that was passed back in 1975, known as the Medical Injury Compensation Reform Act of 1975 (usually referred to by its acronym, MICRA). MICRA has several provisions that make it harder to sue negligent physicians, surgeons, hospitals, and other health care providers. For instance, although you can collect in full for all of your medical expenses, past and future, and all of your lost wages and loss of earning power (so-called “economic damages”), the most you can recover for so-called “non-economic damages” such as pain and suffering and loss of enjoyment of life is only $250,000. The statute also limits the amount of fees the lawyer may charge for representing you, which is less than what he could charge in other types of personal injury and wrongful death cases.
MICRA was passed during a time when doctors were complaining about the sudden and steep increases to their malpractice insurance premiums. Insurance companies said the rise was justified due to the number of frivolous cases brought by unscrupulous, smooth talking attorneys who could sway and convince a jury that the doctor made a mistake and that the client had suffered an astronomical amount of financial and medical expenses and had undergone severe and prolonged pain and suffering. The insurance companies conveniently avoided bringing up the facts that they were suffering because of some bad investment and underwriting practices they had made, and the cyclical nature of personal injury payouts.
Another reason medical malpractice lawyers are hesitant to take cases worth less than $500,000 is that it takes a lot of time and money to prosecute a medical malpractice case through trial. Medical malpractice cases often turn into an expensive “battle of the experts.” The injured victim’s expert doctor will say it was malpractice, while the defendant doctor’s expert witnesses will testify that the care was proper and appropriate. The lay jury—most of them unschooled in medical matters—are left to make heads or tails out of the experts’ testimony. In most cases, especially those dealing with complex medical or surgical issues, the jury will believe the doctor who comes across as the most knowledgeable and confident of all the expert witnesses, rather than trying to sort out and deal with the technical medical testimony itself.
Doctors have long looked out for each other, one major reason being that if they were ever accused of malpractice themselves, they would not want any of their fellow colleagues to testify against them. Accordingly, a code or “conspiracy of silence” among the medical profession arose and existed as early as the start of the 20th century. Thus, in medical malpractice cases, it is often necessary to bring in an out-of-town doctor who is familiar with the medical standards of the area in which the defendant doctor was practicing.
Doctors charge high fees to review medical records to determine whether or not there was malpractice, and their fees for testimony at a deposition or trial is exorbitant. Indeed, some doctors make a very lucrative living just acting as experts in medical malpractice cases. It is much easier for the defendant doctor—whose malpractice insurance carrier is paying the bills—to get doctors to testify on his behalf.