Health Care Litigation Attorneys
Medical malpractice, at its simplest, is when a licensed medical professional does not fulfill the standard of care necessary in their field and, due to the negligence, a patient is harmed in some way. A medical malpractice lawsuit is civil in nature, which means it is aimed at recovering some form of reparations rather than a sentence of jail time.
The lawsuit will typically be brought by the patient who has suffered injury or by a member of the patient’s family, depending on the severity of the patient’s injuries.
Elements the Prosecution Must Prove
To win the case and recover damages, the patient must establish, by a “preponderance of the evidence” that:
The physician owed a duty to the patient;
The standard of care applicable and that the physician violated that standard;
The patient suffered a compensable injury;
The violation of the standard of care caused the harm suffered by the patient.
The preponderance of the evidence standard is less harsh than the beyond a reasonable doubt standard used in criminal prosecutions. The standard means the plaintiff must have more convincing evidence to win their case.
Standard of Care Violations
Violations of the standard of care that qualify as medical malpractice will typically fall into one of several categories. These include, but are not limited to:
- A failure or delay in diagnosing a patient’s condition,
- Misreading X-rays,
- Prescribing the wrong pharmaceuticals,
- Failing to warn a patient of the risks or side effects of a procedure (informed consent),
- Performing services without the patient’s informed consent, and
- Making a mistake during surgery or childbirth.
Most of the time, medical malpractice suits are handled by your medical malpractice insurance company. This is because they make the monetary payout. Despite this, it is still important to hire your own attorney to represent you and your interests. These lawsuits affect your medical reputation and may even cost you your medical license.
Like most legal cases, a majority of medical malpractice suits can be successfully settled out of court through conferences and negotiations between opposing sides counsel. If your case does go to trial, a medical malpractice suit is like most other lawsuits except for one large difference.
The Main Difference: Expert Witnesses
Medical malpractice lawsuits rely heavily on expert witness testimony.
An expert witness has special knowledge or training in a topic and, through this, has been certified as an expert by the trial judge. In most medical malpractice cases, the expert witnesses will be medical professionals who worked or still work in the same field as the defendant.
If the defendant is an oncologist, more than likely they will call another oncologist as an expert witness. Expert witnesses will look at all the evidence in a case, and will sometimes conduct an examination of the plaintiff, and conclude whether, in their opinion, the defendant’s medical professional deviated from the standard of care.
The expert witness must submit a report stating their findings and their reasoning to the opposing counsel prior to their testimony in court. Medical malpractice cases have the highest payout amongst lawsuits. This, and how your reputation as a medical professional could suffer, means every malpractice suit must be taken seriously.
A class action lawsuit is a suit where one of the parties is a large group of people who are represented, collectively, by a member of that group. Typically, the aggregate of a large number of individual claims into one lawsuit.
This makes class action suits slightly advantageous because it can be handled more speedily than going through the lawsuit process for each and every individual claim.
They also allow for plaintiffs to attempt to change the behavior of the defendant – something that may not have been able to be done through the suits of the many individual defendants, each of which may have received only a small sum of money as a result of their case.
In the realm of health care, class action suits most often focus on:
- Harmful drugs,
- Medical malpractice,
- Dangerous or malfunctioning medical devices,
- Sexual or physical abuse,
- Employment-related discrimination.
For example, consider the Nexium lawsuit. Some patients who took the prescription medication Nexium suffered side effects, and felt they were due legal redress for harm done. They joined in a class action lawsuit to argue their case. As a group, they stood a much better chance of making an argument than they did as individual plaintiffs.
Medical class action lawsuits can be brought in both federal and state courts. Federal law, though, demands that if the plaintiffs are seeking over $5 million in reparations or members of the “class” are from different states.
A federal court may also decline to hear a case if the “class” has less than 100 people in it. The typical class action suit will result in a large payout by the defendant if they have been found guilty. This large payout results in small payouts to the many class members.
While a money decision is typical, sometimes a class action lawsuit is filed to make an industry, or company, change a pattern of behavior.
For instance, in the 1960s there was a class action suit against hospitals that accepted federal funding but would not admit some patients based on their race, color, creed, or national origin. The class action suit sought to make this behavior change, as it was already illegal behavior.
Class action lawsuits can be extremely costly and time-consuming so it is best to hire an attorney as soon as possible so that you can be fully informed of the potential consequences of your individual case. An experienced attorney will also guide and advise you through all the intricacies and difficulties of a class action suit.
Defective Medical Products
Dangerous or defective medical devices can give rise to a product liability claim if the person who undergoes surgery or uses a medical device is injured or dies due to the surgery or use.
In the case of a defective medical product suit, a plaintiff will generally sue any person or company involved with the product even if there is no chance they are the reason for the defect.
This means that all the following may be included as defendants in the lawsuit:
- Doctors or any medical professional involved
- The company that created the medical product
- The company in charge of the distribution of the product
- The company in charge of the upkeep of the product.
Some of these defendants will be released from the suit pretty early on due to the fact that they can show that they had no responsibility for the product’s defect. Other plaintiffs may simply name all possible parties in their initial pleading because they do not know who is truly at fault the beginning of the proceedings.
Each separate defendant should hire their own individual legal representation to ensure that their rights and interests are protected throughout the entirety of their tenure in the proceedings.
If more than one of the defendants is found liable, then the amount awarded to the plaintiff will be split between the defendants who are found liable. There are a few ways that the award may be split between the defendants – the manner depends on the jurisdiction.
Joint and Several Liability
If the defendants are held to be “jointly and severally liable” then each defendant is held to be both individually liable and liable together with the other defendants. This means each defendant is responsible for the payment of the total award due to the plaintiff.
Under joint and several liability, it is up to the defendants to determine who will pay what amount. Additionally, if one defendant is unable to pay any share, then it falls on to the other defendant(s) to pay the full amount.
Under comparative liability, it would be up to the decider of fact, either a judge or a jury, to determine each defendant’s percentage of liability.
Comparative liability means each defendant will be held individually liable for their role with the defective medical product. In an example, a manufacturer may be found to be 50% liable, a wholesaler 25% liable, a retailer 15% liable, and a doctor 10% liable.
If under this example, the damages awarded are $100,000 then it would be distributed as follows:
- The manufacturer of the product would owe the plaintiff $50,000;
- The wholesaler of the product would owe the plaintiff $25,000;
- The retailer of the product would be liable to the plaintiff for $15,000;
- The doctor who recommended or installed the product would be liable for $10,000.
Each individual defendant is liable only for the percentage of the award for which they are found liable.
Pharmaceutical Liability: Failure To Warn
A failure to warn lawsuit stems from a patient’s adverse reaction to a drug due to the pharmaceutical manufacturer’s failure to warn of all the dangers associated with the product. The lawsuit might be brought by either the patient who suffered the adverse reaction to the drug or the patient’s family if the patient died due to their reaction.
A failure to warn lawsuit is a strict liability claim. This means any company or person may be held liable if they were involved in selling or producing a dangerous drug, even if they did not ask negligently.
To win a failure to warn lawsuit, the plaintiff must prove that:
- The defendant knew the product was dangerous,
- The defendant had a duty to warn consumers of the danger,
- The defendant was negligent with regard to their duty to warn,
- The plaintiff was injured due to the missing or inadequate warning.
There may include a fifth element that could be present. If the product did have a warning, but it was not readable by the consumer, the pharmaceutical company could be found negligent. The duty to warn does not apply to obvious dangers, but to dangers that are not apparent to a reasonable person.
For example, if a manufacturer warns of a certain side effect, or if a consumer uses that pharmaceutical as instructed and suffers from that side effect, there can be no case.
However, if a consumer dies as a result of taking a drug and that consumer was using it in the matter intended, and the manufacturer had not warned that death was a possible consequence of use then there would be a valid suit for failure to warn of its dangers.
In the United States, the Food and Drug Administration (FDA) has a strict set of standards in order for a drug to be passed on to consumers. Part of getting a drug approved is testing it in clinical trials to find out if there are any possible side effects.
When placing a patient on a pharmaceutical, it is imperative that you warn that patient of the potential risks that come with taking that drug. This not only ensures the patient is fully informed but may also protect you from a lawsuit.
Tort Liability: Informed Consent
As a medical professional, a majority of the time you can only recommend procedures and courses of treatment that you believe to be best for your patients. While recommending treatments, you must inform the patient of both the positives and negatives of any option, so they are fully informed when deciding how to proceed.
For example, if possible blood clots could result as a side effect of taking a particular drug, it should be mentioned to the patient. Whereas, if a patient is being put on a new anti-anxiety medicine with a rare side effect of excessive sweating, this does not necessarily need to be mentioned.
The standard here is of a reasonable medical professional in the same position, with the same education and training. This is not a hard line rule, but generally, it is an objective assessment of what a range of professionals would have done when put in the same position.
Typically, the action that arises in a lawsuit for lack of informed consent is unintentional because even when informed consent is not adequate, it is usually due to unintentional mistakes rather than malicious behavior.
To prove that there was a lack of informed consent, a plaintiff must show that, by a preponderance of the evidence:
- The defendant’s medical professional owed a duty to the plaintiff,
- The defendant’s medical professional breached that duty,
- The plaintiff suffered a compensable injury,
- The plaintiff’s injury was caused due to the defendant’s breach of duty.
The preponderance of the evidence standard is less harsh than the beyond a reasonable doubt standard used in criminal prosecutions. The standard means the plaintiff must have more convincing evidence, in total, to win their case.
In addition to the above, to recover a plaintiff must also show if they had known of a particular risk, that they would have refused consent for the course of treatment. This is a hard standard to prove. It is where cases usually meet their end. Often, though, patients fight, and go to trial if they feel they have been wronged.
It is essential to hire experienced and knowledgeable legal counsel to defend you in these matters as the consequences could be high. You may suffer from the loss of money, your license to practice medicine, and they can ruin your reputation in the medical field.