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Rick Shapiro
Rick Shapiro
Attorney • (800) 752-0042

Why Are Medical Malpractice Cases Hard To Prove?

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Medical malpractice lawsuits are attacked by doctors and major insurance companies, but the laws that permit these suits are critical to assuring that the delivery of medical care in the U.S. is improved. Simply stated: without the risk of economic penalty for poor care, U.S. medical services would be far worse today. In fact, recent studies have shown that medical malpractice claims have NOT been a significant cause of physician liability insurance premium increases, but instead the medical insurance companies increased premiums to cover investment losses without a direct relationship to paying out more valid claims! “Tort” claims for misdiagnosis of medical conditions, for failure to diagnose, for improper surgical procedures all are a sure way to force the field of medicine to monitor itself and improve care.

Medical malpractice law falls under the general field of negligence law; however, numerous special state laws provide for hurdles and obstacles to successfully prosecuting medical negligence cases. These cases involve medical professionals (doctors, nurses, hospitals, nursing homes, physical therapists, pharmacists, chiropractors, osteopaths, and podiatrists) and the delivery of medical services to patients. In medical malpractice cases the injured victim’s lawyer must prove through expert medical testimony that the “standard of care” required of professionals in the field has been breached or a medical professional failed to follow a standard of care in the field, which directly led to an injury. Of course, since many medical procedures carry known risks, a mere “bad outcome” in itself is not the same as proving medical negligence. For this reason, it is critical that an injured person retain a lawyer skilled in evaluating medical negligence cases, and experienced in locating (and having relationships with) medical professionals who can render opinons about the delivery of medical services under review.

Their are numerous legal defenses in these cases, including the state’s statute of limitations, as well as defenses of “contributory negligence” or “assumption of risks” by the patient/victim.

Typical specific fact based defenses are also:

The decision by the health care provider was a judgment call under 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 and the professional did the best under the circumstances.

The lack of any written note in the medical record specifically documenting the error indicates the medical professional did not do what the victim’s lawyer is claiming.

The written informed consent documents signed by the patient reveal that the bad outcome was known to the patient, and the doctor committed no wrong.

The victim would ultimately have still been in the same condition (as they are now) even if the medical professional had not done the procedure in error, or even if the medical professional had done the procedure as argued.

Personal injury lawyers are not all experienced in medical malpractice law-which is considered a very special sub-category of personal injury law so be careful to select a lawyer with a track record and experience in this area.