Martin L. Bell
hear a lot these days about medical malpractice, about
how the high cost of medical malpractice insurance
discourages doctors, about tort reform, and about the
occasional multi million dollar verdict in a lawsuit.
The reality is that medical malpractice lawsuits are
expensive to prosecute, very time consuming for both
the patient and the lawyer, and very hard to win. For
these reasons, good medical malpractice lawyers take
only a few of the many cases they review, and only
when the injury is severe and the damages are high
enough to cover the costs, the fees, and to leave
substantial financial benefits for the patient.
In order to win a medical malpractice case, the
attorney must prove that there was an injury, that
medical malpractice caused the injury, and that
damages resulted from the injury. The injury itself
must be one that the doctor or hospital had a duty to
protect against. That is not usually a problem in
medical malpractice cases.
In order to prove causation and damages, one or more
expert witnesses are required. The expert witnesses
must be of similar background and training to the
defendant, and the expert for the plaintiff must be
willing to testify that the defendant fell below the
standard of care applicable to the case. The standard
of care is what a reasonable doctor, nurse, or
hospital would do under similar circumstances. Expert
witnesses can usually be found easily for the
defendant because most doctors want to testify for
other doctors and hospitals. These experts will say
that the defendant complied with the standard of care.
It is more difficult to find good expert witnesses
for the plaintiff, witnesses the attorneys for the
defense or a jury will believe.
Expert witnesses are very expensive to hire. When
they testify for the defendant, an insurance company
pays their bill. However, in most cases, the attorney
for the plaintiff must pay the experts he hires, and
hope that he gets a favorable outcome to the case so
that those expenses can be reimbursed out of the
proceeds. The expert for the plaintiff must testify
that the injury was caused by the medical negligence,
and that the damages resulted from the negligence.
Other experts may be needed for the damages, such as
additional physicians, economists or life care
planners. These experts are also very expensive, and
the plaintiff’s attorney must pay for them as well.
Next depositions must be taken. Both the plaintiff and
defendant must be deposed, as well as all the
witnesses for both sides, and often lay witnesses are
also deposed. In a deposition, the party being
deposed is sworn to tell the truth, interviewed by an
attorney or several attorneys, and everything is taken
down by a court reporter, just as if the parties were
in a court of law. Depositions are also expensive,
not only because of the costs of the deposition
itself, but also because the experts have to be paid
for their time.
Medical malpractice suits have a life of two to three
years before they are settled or go to trial. The
better lawsuits settle, usually with the help of a
mediator. When a case goes to trial in Arizona,
juries find for the defense in more than 90% of cases.
Therefore good medical malpractice attorneys take
only cases they believe will settle out of court.
A word about fees. In most medical malpractice cases,
the attorney takes the case on a contingency basis.
That means he will get a percentage of the proceeds
plus reimbursement of the expenses, and the client
will get the rest. In a good case, there will be a
large enough award that all parties are satisfied. On
the other hand, where damages are small, fees and
costs may eliminate any real benefit to the plaintiff.
Unfortunately there are many such cases, and the
present judicial system does not have a solution for
this situation. A good medical malpractice attorney
would not take such a case.
There is no charge to discuss your medical malpractice
complaint. If indicated, there is no charge to review
relevant medical records in order to assess the
situation. I hope this brief review of the process
will help you with your decision.
Martin Bell is a
physician-attorney, licensed to practice both Medicine
and Law in Arizona and Louisiana. As a physician he
practices Plastic and Reconstructive Surgery with an
emphasis on cosmetic surgery procedures. As an attorney,
Dr. Bell represents clients and assists other attorneys
in cases involving medical issues, and he serves as an
expert witness for both defendants and plaintiffs.
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