Malpractice lawsuits

[Neuro27]

I heard they cannot be filed unless one doctor is willing to testify (usually with pay), against another doctor.

True?

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[drpatelplasticsurgery]

I heard they cannot be filed unless one doctor is willing to testify (usually with pay), against another doctor.

True?

first lesson of law school - the answer to the question "can you sue?" is always a resounding "YES!"

whether you win on the merits is a totally different beast. you would never be denied access to the courts if you are presenting a non-frivolous lawsuit. you may get summary judgment in the defendant's favor if the plaintiff can't produce any credible expert witnesses or the evidence suggested is not material. depends on the case, and the fact pattern.

http://en.wikipedia.org/wiki/Summary_judgment

 

[aertzin]

I heard they cannot be filed unless one doctor is willing to testify (usually with pay), against another doctor.

True?

Well, I'm not a lawyer but my understanding is that you do need a medical expert to testify that the doc being sued didn't meet the applicable standard of care for that type of doc under the circumstances.

 

[drpatelplasticsurgery]

now, the question was whether one could *file* suit. the answer's always "yes."

if the question were whether one would be *successful*, the answer would be "probably not" if the plaintiff had no expert witness.

the words used have been too strong. if one *needed* an expert witness to file a malpractice claim, then that would be mentioned in the FRCP or some other statutory procedural text. these types of cases fall under negligence claims - the burden is on the plaintiff to prove, by a preponderance of the evidence (at least slightly more than 50%), that:

(1) the defendant had a legal duty to provide a certain standard of medical care
(2) that duty was breached
(3) there was a causative link, both direct and proximate, between the breach of duty and the harm suffered by the patient, and
(4) damage was incurred by the plaintiff (leading to judgment and recovery in terms of compensatory and punitive damages)

in medical malpractice that almost always involves a battle between medical expert testimony. STILL, it's going too far to say you NEED a medical expert, or FILING a claim will fail if you don't have one. it depends on the circumstances surrounding the particular case.

http://en.wikipedia.org/wiki/Medical_malpractice

in an egregious case of negligence, res ipsa loquitur ("thing speaks for itself") may hold, in which case a medical expert would be redundant or unnecessary. say, for example, a plastic or trauma surgeon simply had to suture a very superficial wound on a patient's face, and instead botched the job, it got infected, and the patient now suffers from a serious facial deformity. if that deformity were so obviously apparent (say looking at before at after pictures) to the jury, it wouldn't take expert testimony to prove the plaintiff's case (i.e., establish "breach"), so long as the the "causation" element could be proven. yes, i'm sure the prudent, vigorous advocate for the plaintiff would get an expert witness anyway. point is, you don't "need" one to get to trial.

 

[Law2Doc]

now, the question was whether one could *file* suit. the answer's always "yes."

if the question were whether one would be *successful*, the answer would be "probably not" if the plaintiff had no expert witness.

the words used have been too strong. if one *needed* an expert witness to file a malpractice claim, then that would be mentioned in the FRCP or some other statutory procedural text. these types of cases fall under negligence claims - the burden is on the plaintiff to prove, by a preponderance of the evidence (at least slightly more than 50%), that:

(1) the defendant had a legal duty to provide a certain standard of medical care
(2) that duty was breached
(3) there was a causative link, both direct and proximate, between the breach of duty and the harm suffered by the patient, and
(4) damage was incurred by the plaintiff (leading to judgment and recovery in terms of compensatory and punitive damages)

in medical malpractice that almost always involves a battle between medical expert testimony. STILL, it's going too far to say you NEED a medical expert, or FILING a claim will fail if you don't have one. it depends on the circumstances surrounding the particular case.

http://en.wikipedia.org/wiki/Medical_malpractice

in an egregious case of negligence, res ipsa loquitur ("thing speaks for itself") may hold, in which case a medical expert would be redundant or unnecessary. say, for example, a plastic or trauma surgeon simply had to suture a very superficial wound on a patient's face, and instead botched the job, it got infected, and the patient now suffers from a serious facial deformity. if that deformity were so obviously apparent (say looking at before at after pictures) to the jury, it wouldn't take expert testimony to prove the plaintiff's case (i.e., establish "breach"), so long as the the "causation" element could be proven. yes, i'm sure the prudent, vigorous advocate for the plaintiff would get an expert witness anyway. point is, you don't "need" one to get to trial.

I basically agree, but in the ordinary course, to survive a quick dismissal from the judge without ever getting to trial, you simply will need medical expert testimony. So while the OP is technically innacurate, in a practical sense he is. Someone can always sue, but is at risk for sanctions, countersuit and the like if s/he cannot support their claim. It's a safe bet that if you get sued for medmal, the plaintiff will have found a physician who is willing to state in court that you breached the reasonable standard of care and committed negligence.

 

[aertzin]

in medical malpractice that almost always involves a battle between medical expert testimony. STILL, it's going too far to say you NEED a medical expert, or FILING a claim will fail if you don't have one. it depends on the circumstances surrounding the particular case.

No, it depends on what state you're in. Since the substantive (and if brought in state court, procedural) law of the state where the case is brought applies, your statements are not correct in all jurisdictions. Pennsylvania has a "Certificate of Merit" requirement which requires the plaintiff to produce a written statement from a qualified expert that ". . . there exists a reasonable probability that the care, skill or knowledge exercised or exhibited in the treatment, practice or work that is the subject of the complaint, fell outside acceptable, professional standards and that such conduct was a cause in bringing about the harm. . . ". The plaintiff must have the Certificate of Merit before filing the lawsuit or within sixty (60) days after filing the complaint.

So, in my state, you DO NEED a medical expert and FILING a claim will fail if you don't have one.

P.S. Surprised to hear an attorney making such sweeping generalizations.

P.S.2. You'd bring a medmal case on res ipsa loquitur theory?? Invitation to legal malpractice suit.

 

[drpatelplasticsurgery]

i was not aware of the Certificate of Merit requirement in Pennsylvania. so i stand corrected. my law license is in New York, and when many of these relatively recent laws were enacted across the country around 2003, i was busy finishing up my 3rd yr of law school and studying for the NY Bar. and no, they do not test medmal law on the bar, just basic tort theory.

to address the postscripts, no, i wouldn't bring a medmal case on a res ipsa loquitur theory. i don't recall saying in my post that i would encourage doing so. all i implied was that it was technically possible to do so (yes, depending on the jurisdiction).

i appreciate the comment that i would be subject to malpractice sanctions for risking a plaintiff's suit w/out an expert witness. the concept of litigation sanctions was already beaten over our heads many times in law school. in any case, with two surgeons in my family, and myself beginning medical school next year, i have no desire to be a plaintiff's attorney in medical malpractice cases - if i practice law at all in medmal, it will be on the DEFENSE side.

yes, i made some generalizations in my post, but "sweeping"? ok. from what little i know, Certificate of Merit requirements are in place in many, but not all 50, states. i don't currently practice law, i simply based my response on what i remember from law school. in the interest of full disclosure, no, i am not a medical malpractice attorney. so of course take what i say with a fat grain of salt.

 

[Law2Doc]

Bottom line, and I think what the OP was perhaps getting at, is that if you are hailed into court, it is likely because another physician was willing to say you did wrong. There is not a lot of circling the wagons in the medical profession. Best to not screw up.

 

[aertzin]

i have no desire to be a plaintiff's attorney in medical malpractice cases - if i practice law at all in medmal, it will be on the DEFENSE side. ..... yes, i made some generalizations in my post, but "sweeping"?

Defense side? Billable hours and time sheets? Much more money on the Plaintiff's side. Didn't mean to come across as harsh. I work with too many attorneys (I'm a paralegal) who are the pompous, arrogant, know-it-all types. I'll play nice from now on.

 

[Law2Doc]

Defense side? Billable hours and time sheets? Much more money on the Plaintiff's side.

Not hardly. Most of the bigger firms won't touch plaintiff work. It's gambling -- For every victory that pays the bills there are often a dozen that run up costs. Folks that pay by the hour are better yield. Far more plaintiffs firms crash and burn, or have to resort to unsavory TV ads.

 

[aertzin]

Not hardly. Most of the bigger firms won't touch plaintiff work.

Not true in Philadelphia. Even the mega-firms in this town will take plaintiffs' cases. Not their bread and butter, but they do it - as long as there are no conflicts, it won't piss off their insurance company clients, and there's money to be made.

It's gambling -- For every victory that pays the bills there are often a dozen that run up costs.

Very true. It's all about case selection.

Folks that pay by the hour are better yield.

The partner I work for, who does medmal defense work, would disagree.

 

[Law2Doc]

Not their bread and butter,

It's a very different kind of practice if you pick and choose your cases versus rely on it as your business. Firms that do as you describe and rely on paying clients as their bread and butter do not constitute "plaintiff's side". They are cherry picking. A true plaintiffs side business is not usually as lucrative, unless they are very lucky. Hence the need for aggressive advertising. And I'm not sure you are right about the larger Philly firms, but won't argue the point.