Criminal Defense Lawyers

How Attorneys Defend Doctors Against Malpractice & Negligence Claims

How Attorneys Defend Doctors Against Malpractice & Negligence Claims

Medical malpractice lawsuits are a relatively common occurrence in the United States. According to research, there are between 15,000 to 19,000 medical malpractice lawsuits filed against doctors every year 1.

These types of lawsuits can be stressful and damaging to a doctor’s reputation and finances. When a patient alleges medical malpractice, doctors often turn to attorneys who specialize in defending physicians in these types of cases.Defense attorneys have a multifaceted role in helping doctors fight malpractice claims. Their responsibilities include investigating the allegations, finding expert witnesses, preparing legal arguments, and representing the doctor in settlement negotiations or at trial. Successful defense requires an in-depth understanding of medical negligence law and the strategies that can defeat these claims.

Elements of a Medical Malpractice Claim

For a plaintiff to successfully sue a doctor for medical malpractice, four legal elements must be proven

1. Duty – The doctor owed a professional duty to the patient to provide an appropriate standard of care. This duty is established whenever a doctor-patient relationship exists.
2. Breach of Duty – The doctor failed to conform to the relevant standard of care. Essentially, the doctor did something no reasonable physician would have done in a similar situation or failed to do something a reasonable physician would have done.
3. Causation – The doctor’s breach of duty directly caused the patient’s injury. The patient must show it is “more likely than not” that the injury would not have occurred without the doctor’s substandard actions.
4. Damages – The breach of duty caused significant harm, such as additional medical costs, lost wages, disability, or pain and suffering.

The plaintiff carries the burden of proof and must establish each of these elements through medical records, expert testimony, and other evidence. If proof is lacking for any one element, the malpractice claim fails.

Investigating the Allegations

The first step for defense attorneys is to thoroughly investigate the allegations and identify any weaknesses in the plaintiff’s case. The attorney will review medical records, interview the doctor and staff members involved, consult with experts, and research the applicable standard of care 3.

Some key questions the attorney will try to answer include:

• What exactly is the plaintiff alleging the doctor did wrong?
• Does the medical evidence support a breach of duty?
• Are there credible expert witnesses willing to defend the doctor’s actions?
• Is there proof the alleged breach actually caused the injury?
• Can the damages be linked to the supposed malpractice versus other factors?
• Did the patient contribute to the injury through their own negligence?

Thorough investigation in the early stages can reveal flaws in the plaintiff’s arguments and potentially lead to a dismissal before trial. At a minimum, it allows the defense attorney to focus their efforts on the weakest parts of the claim.

Finding Expert Witnesses

Expert testimony is crucial in medical malpractice cases to establish the relevant standard of care and whether the doctor met this standard 4.

 Both sides will retain qualified medical experts, typically physicians who practice in the same specialty as the defendant. The defense expert’s role is to review the medical records and explain why the doctor’s actions were reasonable and within the scope of accepted practice.Defense attorneys devote substantial efforts to finding strong expert witnesses. In some cases, multiple experts may be needed to address different aspects of the treatment. Criteria for selecting experts include:

• Extensive clinical experience in the relevant specialty
• No conflicts of interest
• Good credentials and professional reputation
• Strong communication skills
• Ability to persuasively defend the doctor’s actions
• Prior experience providing expert testimony

The right experts can undermine the plaintiff’s arguments and make a convincing case that no malpractice occurred. Their testimony will be crucial at depositions and trial.

Crafting Legal Arguments

In addition to expert testimony, defense attorneys use legal arguments and strategies to defeat malpractice claims. Here are some of the most common arguments made:

• No physician-patient relationship existed – If there was no relationship establishing a duty of care, there can be no malpractice. This may apply if the doctor saw the patient only briefly or on an informal basis 5.
• The plaintiff lacks expert support – Without a qualified expert, the plaintiff cannot establish the relevant standard of care or prove the doctor breached it. Lack of expert support is grounds for dismissal.
• The doctor used sound professional judgment – If respectable medical opinion allows for different approaches, choosing one accepted approach is not malpractice even if injury occurs.
• There is no proximate cause – If the patient’s injury had multiple possible causes, the plaintiff must show the doctor’s actions, and not other factors, directly led to the harm.
• The plaintiff was negligent – If the patient’s own negligence contributed to the injury, damages may be reduced or eliminated under comparative negligence principles.
• The statute of limitations has expired – Every state has strict deadlines for filing medical malpractice claims, often between 1-3 years. Missed deadlines bar the lawsuit.

Crafting the right legal theory can get cases dismissed pre-trial. Even if the case proceeds, these arguments create doubt about the validity of the plaintiff’s allegations.

Negotiating Settlements

The vast majority of malpractice claims settle out of court before trial. Defense attorneys have a key role in the settlement process, advising doctors on their options and negotiating with the plaintiff’s attorneys.Settlements allow doctors to avoid the expense, stress, and publicity of a trial. However, some doctors prefer to fight the allegations at trial on principle, even when large settlement offers are made. Defense attorneys provide guidance, but the doctor ultimately decides whether to settle.During negotiations, the defense attorney’s objective is to secure the lowest feasible settlement given the facts of the case. Many factors influence settlement amounts, including the strength of the plaintiff’s evidence, potential damages, litigation costs, insurance policy limits, and laws capping damages. Most settlements are confidential.Though settling may be advisable, defense attorneys will recommend trial if they believe the plaintiff’s case is unfounded and can be defeated.

Going to Trial

Relatively few medical malpractice claims end up at trial, but aggressive defense is necessary when they do. The attorney’s role is to advocate zealously for the doctor during all phases of litigation. Key aspects of trial representation include:

• Jury selection – The attorney seeks to seat jurors who will evaluate the evidence objectively. Those with anti-doctor bias can be excluded.
• Opening statement – This provides an overview of the defense arguments and theory of the case. The attorney emphasizes the plaintiff’s burden of proof.
• Presentation of evidence – The defense attorney cross-examines the plaintiff’s witnesses to undermine their credibility and highlight inconsistencies. Direct examination of defense experts explains why proper care was provided.
• Closing argument – By reiterating the flaws in the plaintiff’s case, the attorney persuades jurors the legal standard for malpractice has not been met.
• Post-trial motions – If the defense loses at trial, motions may be filed seeking to overturn the verdict, reduce the judgment, or gain a new trial. Appeals are also possible.

Aggressive trial advocacy requires extensive preparation and litigation experience. Even cases with strong plaintiff evidence can result in defense verdicts.

Conclusion

Medical malpractice lawsuits have serious implications for doctors, including harm to their finances, reputations, and emotional wellbeing. Qualified defense attorneys are invaluable in defeating unsubstantiated claims and protecting doctors who acted reasonably under the standard of care. From investigation through trial, they work diligently to build arguments, obtain experts, and create doubt about allegations of negligence. While some cases do warrant reasonable settlement, attorneys also give doctors a vigorous defense when the facts and law support fighting the claims. By leveraging their knowledge of this complex area of law, they help doctors through the difficult process and obtain the most favorable outcomes given the circumstances.

References

 https://www.ncbi.nlm.nih.gov/pmc/articles/PMC2628513/

 https://www.nycbar.org/get-legal-help/article/personal-injury-and-accidents/medical-malpractice/

 https://www.ncbi.nlm.nih.gov/pmc/articles/PMC2779963/

 https://www.ahajournals.org/doi/10.1161/STROKEAHA.122.038559

 https://www.ncbi.nlm.nih.gov/pmc/articles/PMC2628513/https://www.nycbar.org/get-legal-help/article/personal-injury-and-accidents/medical-malpractice/https://www.ncbi.nlm.nih.gov/pmc/articles/PMC2779963/https://www.ncbi.nlm.nih.gov/pmc/articles/PMC2628513/https://www.ncbi.nlm.nih.gov/pmc/articles/PMC2779963/https://www.ahajournals.org/doi/10.1161/STROKEAHA.122.038559