How Does a Medical Malpractice Lawsuit Work?

Every year we review many potential medical negligence cases for patients who feel that their doctor or dentist committed medical malpractice.

Usually, the client has had a poor outcome from a medical procedure and therefore, feels that the physician should be responsible. Clients are often surprised when we explain to them that in fact physicians are usually not liable just because a medical procedure did not turn out as well as expected.

Every medical procedure presents some risk. Even if performed perfectly, many procedures still have a small, known failure rate. If a procedure was performed correctly, it would not be fair to penalize a physician for an unfortunate result. And expecting perfection itself is not reasonable. So the law does not impose a standard of perfection.

Determining “Standard of Care”

The law looks to the medical community to define the appropriate medical “standard of care.” This means that a physician must take all the normal steps and precautions that other reasonable physicians would take when performing a procedure or course of treatment. If they do, then they will not be held liable for a bad outcome.

Hiring Medical Experts

This standard of care can be difficult to apply in the case of a lawsuit. Often there are differences of opinion among medical experts regarding whether the standard of care was met. Sometimes experts will disagree about why someone had a bad outcome. One expert may think that the treating physician committed an error, and another expert reviewing the same records may disagree.

Even if it seems fairly clear that a physician made an error that did not meet the standard of care, it still may not be possible to hold the physician accountable. Medical malpractice lawsuits are very expensive to pursue. Deposing medical witnesses is very costly. A case can run into the many tens of thousands of dollars, or even more very quickly. For that reason, it is rare for an attorney to get involved unless the patient has been harmed in a very serious manner.

Next Steps

When medical negligence is suspected we first assess how seriously the person has been harmed. Is a death involved? Have they suffered a permanent disability? Have they been left in a condition that will require lifetime treatment or care? Serious conditions like those make it much more likely a claim could be brought and litigated to achieve a fair result.

We next must review all medical records associated with the case to see if we feel they demonstrate a significant possibility that there might have been a breach of the standard of care. Ultimately, we then must consult with a medical expert to provide a formal opinion that indeed the harm suffered was caused by medical negligence.