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MEDICAL MALPRACTICE BASICS

by Dr. Martin L. Bell

We 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.

 


Dr. 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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Martin L. Bell, M.D., J.D

7702 East Doubletree Ranch Road, Suite 300

Scottsdale , AZ , 85258 USA

602.955.2390

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