In order for a patient to have a medical malpractice claim for medical negligence, he or she has to prove (1) that the medical professionals had a duty to provide a standard of care and failed to do so, (2) that the patient suffered an injury or injuries, and (3) that the injury was caused by the alleged medical negligence.
What does “standard of care” mean? It varies from state to state. Some laws restrict the standard to physicians in the same area of the country, while others extend the standard to doctors on a national level. For example, a heart surgeon will be held to the standard of other surgeons in the same field. If he or she acted in a way that differs from the way most heart surgeons would have acted in similar circumstances, that surgeon may be found to have been medically negligent.
Since the body consists of interconnected systems, “causation” is a complicated issue in medical negligence. The medical personnel might argue that the treatment did not cause the injury but that it was instead caused by a condition the patient already had.
Psychologists and psychiatrists can also be sued for medical negligence, although these types of cases are much more difficult to prove because not only are the injuries non-physical, but causation is particularly complex.
In any type of case, the attorneys assigned by the physicians’ malpractice insurance company will likely try to argue that the injury was not caused by medical negligence.
For this reason, people who suffer injuries are advised to hire a lawyer to help them negotiate a settlement to recover the costs they incurred. Lawyers in this situation work on a “contingency” basis, which means that they do not require the client to pay them. Their fees are contingent upon receiving settlement monies from the medical malpractice insurance company. If the lawyer is successful in obtaining a settlement for the client, he or she then takes a percentage of the money as a fee. If the lawyer is not successful, he or she does not earn any money for the work. As a result, lawyers work hard to obtain settlements for their clients.
In some states, the settlement might include funds for pain and suffering, which is not a reimbursement for costs but a payment for the emotional stress experienced from the injury. Some states also allow for “punitive damages” if gross negligence or misconduct is involved. The amount allowed for such damages is often restricted. In the state of California, for example, no more than $250,000 can be awarded for non-economic damages.
When gross negligence or misconduct is involved, the local authorities might also bring a criminal action against the physician or medical facility. This action is separate from a medical malpractice case. In a criminal action, the plaintiff is the city or the state. A medical malpractice lawsuit is called a “civil” action, and the plaintiff in that case is the injured patient. Both the criminal and civil cases would have one or more defendants in common, however. The defendant is the person who is defending the claim – the party or parties who are alleged to have been medically negligent.
Note that only in cases of gross negligence does the health department take away a doctor’s medical license.
Most of these cases are settled out of court, but when the parties cannot agree on a settlement amount, the case goes to trial. A judge or jury then makes the decision as to whether the patient is entitled to monies and how much. Before a case goes to trial, however, years of negotiations might pass. During that period, the lawyers for both sides prepare legal papers that answer the questions of the other party. These are called “pre-trial discovery” papers.
Depositions are also often taken of the parties. These are interviews that allow the opposing side’s attorneys to ask questions.
It is not unusual for a settlement to take place at the courthouse during the jury selection process. This is a tactic that pushes both sides against the wall, trying to coerce them to give in. The plaintiff wants the defendant to give in by offering more money in the settlement, while the defendant wants the plaintiff to give in by accepting the current settlement offer. No one ever wants to take a case to trial if it can be helped because the costs of court are much higher than out-of-court settlements.